[16 Oct. UPDATE: The document from the six states opposing the proposed Regulation is available here.]
One week ago Commissioner Cecilia Malmström called for an “extensive Frontex search and rescue operation that would cover the Mediterranean from Cyprus to Spain.” Yesterday the ANSA news service reported that all six EU Mediterranean states (Cyprus, Greece, Italy, Malta, France and Spain) have voiced opposition to the proposed Frontex Sea Borders Regulation (COM(2013) 197 final) and specifically to Articles 9 and 10 relating to “Search and Rescue Situations” and “Disembarkation.” ANSA reported that the six member states “expressed disapproval of the draft and called it ‘unacceptable for practical and legal reasons’.” The six countries have reportedly taken the position that there is no need for further regulations pertaining to rescue at sea or post-rescue places of disembarkation since other international laws already “deal ‘amply’ with the matters.”
As you may recall, the earlier version of the Frontex Sea Borders Rule in the form of a Decision was adopted by the European Council in 2010 (Decision 2010/252/EU). The Decision was subsequently annulled by the Court of Justice of the European Union on the ground that it introduced new essential elements into the Schengen Borders Code by way of the provisions on interception, rescue and disembarkation and that such substantive changes required the consideration and approval of the European Parliament. (European Parliament v Council of the European Union, Case C-355/10, 5 Sept. 2012). The proposed replacement for the annulled Decision is in the form of a Regulation but is fairly similar in content.
While the ANSA report does not identify the specific reasons why the six states are opposing the proposal, one can speculate that the objections to Art. 9, Search and Rescue Situations, may be based on a perception that it would expand the obligation to rescue under certain circumstances. For example the Article requires that even in the absence of a distress call, a rescue operation might still be required if other factors are present, including:
- the seaworthiness of the ship and the likelihood that the ship will not reach its final destination;
- the number of passengers in relation to the type and condition of the ship;
- the availability of necessary supplies such as fuel, water, food to reach a shore;
- the presence of passengers in urgent need of medical assistance;
- the presence of deceased passengers;
- the presence of pregnant women or children.
The objections by the six states to Art. 10 regarding places of disembarkation are most likely due to the states’ conflicting positions regarding where disembarkation should occur. While Art. 10 creates a procedure for decisions regarding places of disembarkation to be made by participating member states in advance of joint operations, its provisions identify circumstances under which disembarkation in member state may occur when that state is not participating in the joint operation. Malta and Italy in particular have long disagreed on where disembarkations are to occur. This long standing disagreement obviously contradicts the claims made by the six opposing states that existing international laws already deal “amply” with the disembarkation issue.
Click here for ANSA article.