NATO announced on Sunday, 6 March, that its Aegean Sea patrols have been expanded to Greek and Turkish territorial waters. NATO patrols have been operating only in international waters. And while NATO says its ‘mission is not to stop or turn back those trying to cross into Europe’, NATO has made it clear that NATO ships will return rescued migrants directly to Turkey: ‘In case of rescue at sea of persons coming via Turkey, they will be taken back to Turkey.’ NATO’s plan to summarily return intercepted migrants is consistent with previous statements made by the British and German defence ministers who have said that the purpose of the NATO mission is to stop migrants and return them to Turkey.
NATO’s characterisation of its operation seems to be an attempt to draw a distinction between a push-back practice where any migrant boat, regardless of whether it is in need of rescue, would be intercepted and pushed back and a search and rescue operation providing assistance to migrant boats in need of rescue. This is meaningless distinction given the current situation in the Aegean where every migrant boat is in need of assistance or rescue.
NATO ships are subject to the same rescue at sea obligations imposed by the SOLAS and SAR Conventions as all other ships and are obligated to disembark rescued persons in a ‘place of safety.’ And while disembarking in Turkey is safer than disembarking in Syria or Libya, there are serious questions as to whether Turkey is a place of safety. See the recent Q&A issued by Human Rights Watch concluding that Turkey is not a ‘safe third country’ as defined by EU law. While the question of a ‘place of safety’ under the SAR Convention is not identical to the ‘safe third country’ question under EU law, the fact remains that rescued migrants should not in all cases be automatically returned to Turkey without adequate screening and processing. The failure to screen rescued migrants is a clear violation of the non-refoulement obligations of the individual EU and non-EU States operating under the NATO command.
An article by Silja Klepp (Research Associate, Research Center for Sustainability Studies (artec), University of Bremen) entitled “A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea” has been published as an online advance access article by the International Journal of Refugee Law.
Abstract: “This paper discusses research results from anthropological fieldwork carried out in Malta in 2007. The island, which is situated in the central Mediterranean Sea between Tunisia, Libya and Italy, is a focal point regarding the continuing refugee situation. One of the research aims was to investigate the situation at sea concerning Search and Rescue (SAR) operations for migrants and refugees crossing the Mediterranean by boat. In the year 2006, 556 missing and drowned migrants were registered in the central Mediterranean between Libya, Malta and Italy, this number increased to 642 in 2008.1 The goal of the research in Malta was therefore to understand why an increasing number of migrants were dying at sea and what role the European security forces play in this context.
After introducing the research perspective of this article, background information concerning migration movements in the Mediterranean Sea between Libya, Italy and Malta in recent years is provided. Due to European regulations, which are considered unfavourable for the island, and its population density, Malta feels under pressure from migrants arriving by boat across the Mediterranean. Different concepts regarding a ‘place of safety’ to disembark rescued boat migrants are debated. The ambiguities in the responsibilities cause problems for the captains who rescue migrants in distress at sea. These ambiguities may in turn lead to a weakening of the SAR regime. Following discussion of the legal and political quarrels on the place of safety, the SAR operations at sea of the Armed Forces of Malta is analysed. The findings show that it is not merely a case of enforcing legal norms created by international law. The process is much more complex: legal gaps are filled by regional actors, through informal or even illegal practices, asserting their own claims at their convenience. Thus, transnationalization processes of law, such as the international SAR regime, are a fragmented and ambiguous set of regulations, creating space for negotiation and manoeuvre.2”
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Also by Klepp from 2010, European Journal of Migration and Law: “A Contested Asylum System: The European Union between Refugee Protection and Border Control in the Mediterranean Sea.”
Italian Interior Minister Maroni has criticised Malta for failing to immediately deploy rescue ships to assist the migrant boat that sank near Lampedusa. The Armed Forces of Malta said that the migrant boat did not capsize until after two Italian coast guard boats had responded and were on scene attempting to render assistance. The AFM said the first call for assistance was received Wednesday at 0025, the Rescue Co-ordination Centre of the AFM notified Italian Coast Guard headquarters in Rome and NATO headquarter in Naples at 0120, two Italian coast guard boats and an Italian fishing vessel, the Cartagine, were on scene by 0416, and the migrant boat capsized around 0535. The migrant boat was closer to Italian territory than to Malta, but was located within Malta’s large Search and Rescue Area. Italy and Malta have had past disputes over the boundaries of the SAR with Italy calling for the Maltese SAR to be reduced in size.
The Secretary-General of International Maritime Organization, Efthimios E. Mitropoulos, issued a statement saying that “[i]t was ironic that the devastating news of this latest tragedy reached us while we were holding a [Legal Committtee] meeting with representatives of Italy and Spain to consider what measures countries in the Mediterranean Basin should take to deal with the increasing number of persons leaving north African and eastern Mediterranean countries to seek refuge in Europe.”
The statement also said that “IMO is in contact with Italy, Malta and the UN High Commissioner for Refugees (UNHCR). The [Legal Committee] meeting mentioned above was hosted by IMO and held against a background of increasing movement of persons by sea for political and socio-economic reasons or as a result of armed conflict. It was part of an on-going process aimed at improving existing provisions for rescuing migrants at sea and disembarking them at a place of safety, in accordance with the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention).”
Click, here, here, here, and here for articles. (EN)
Click here for article. (IT)
Click here for map the SARs.
Click here for IMO Statement.