In a recent publication, Nora Markard, Professor of International Public Law and International Human Rights Protection at the University of Münster, looked at the issues of sea rescues, places of safety and the behaviour of the European Union (EU). In this interview with Kathrin Nolte, Nora Markard explains the legal situation, current practice on the part of the EU and what needs to change in future.
What are the results you arrive at in your study, which you wrote together with Prof. Anuscheh Farahat from the University of Erlangen-Nuremberg?
The EU and its member countries are increasingly trying to outsource their responsibilities for refugees to countries in North Africa. They say that these countries should not allow refuges to get into boats in the first place and should, in case of doubt, bring them back or take them back. We see this most clearly in the deal struck between the EU and Turkey. Italy, in particular, is working closely together with Libya - although refugees taken off boats there face the threat of arbitrary detention under dreadful conditions, severe mistreatment, unlawful deportation or even torture and death. This has all been well documented - by large NGOs as well as by the United Nations. In this context, we examined the question of whether it is lawful to allow people rescued at sea to disembark in North African countries. The conclusion that we came to was: absolutely not in Libya; in Algeria, Morocco, Tunisia and Egypt - it depends.
What is the legal situation regarding rescues at sea?
Anyone who comes across people in distress at sea, or is called to come and help, has a duty to rescue these people. But this is not the end of the duty they have: anyone who is rescued has to be taken to a so-called “place of safety”. State authorities are also bound by human rights and refugee law - also in cases where they operate at sea. This was clarified by the European Court of Human Rights as long ago as 2011. The same applies when such authorities give binding instructions to private sea captains via their rescue centres.
What is meant by a “place of safety”’ Why doesn’t it include Libya, for example?
In the definition provided by the International Maritime Organisation, a “place of safety” is, first of all, a place which is no longer any threat to life and which enables people to continue on their way safely. They must also have the possibility to support themselves - a rock island, for example, would not be sufficient. And there must not be any other dangers to life and limb. This means that any survivors must not be allowed to disembark in a country where they will be faced with death, torture or persecution - or from where they can be deported to a country in which these threats exist. The situation in Libya is so dreadful for migrants that there cannot be any doubt that Libya is not a “place of safety” in the definition given under maritime law.
The situation is of course a different one in the other North African countries. However, there are repeated reports of torture and illegal deportations here, too. Homosexuals fear persecution, and women and girls are often the victims of severe violence. So, in these countries, disembarkation should not be allowed for certain people in need of protection. But it’s hardly possible to make case-by-case examinations at sea, especially as a sea captain is not trained for the task and, as a rule, there are no translators on board. Quite apart from the fact that, in many cases, people who are traumatized cannot be questioned immediately. This is why we came to the conclusion that there should not be any disembarkations in these countries either.
What currently happens in actual rescue missions at sea?
Sea rescues carried out by state authorities are insufficient, unfortunately, but private rescuers are systematically obstructed and criminalized, their ships are confiscated, and permission to enter ports is refused. Border police authorities are not themselves allowed to disembark people at places where survivors are faced with torture or severe mistreatment. This is why EU countries are trying to shift the task to others.
The Italian sea rescue centre, for example, often contacts Libyan coastguards instead of undertaking any rescue missions themselves - although the officials are aware of what awaits the survivors in Libya. The Libyans then actually try to prevent any private sea rescues, although, in doing so, they expose these survivors to additional mortal danger. And the Italians instruct private rescuers - under threat of punishment - to disembark refuges in Libya. This practice is quite clearly illegal.
What does the EU need to change in your view?
We need reliable rescue at sea. This is also stipulated by international maritime law. In the view of the EU, it is an issue for member states. This explains why the European Border and Coast Guard Agency “Frontex” only carried out rescues on the periphery of border control operations. Member countries need to become much more active in this respect. Italy set an example from 2013 to 2014 with “Mare Nostrum”.
Above all, though, it must be ensured that refugees disembark at places of safety. Libya can definitely be ruled out - as can the other North African states due to the dangers there for people in need of protection. So far, disembarkation in EU countries has not been possible due to resistance on the part of member countries. This is why we need solidarity in finding a solution to allow refugees in. Anyone who needs protection must be given shelter in humane conditions and have the opportunity to go through fair asylum-seeking procedures. But this cannot be solely the responsibility of the EU countries on the Mediterranean. The new European Commission will have its work cut out with this issue.
The publication was commissioned by the Heinrich Böll Foundation European Union