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Rescued but nowhere to go? Reflections on the crisis in the Mediterranean Sea

Written by Birgit Feldtmann, Associate Professor at Department of Law

The humanitarian crisis in the Mediterranean has, for very good reasons, been one of the main topics on the European agenda and in the public debate. Pictures of desperate refugees and migrants attempting – and regrettably far too often paying with their lives in the attempt – to cross the Mediterranean Sea in overfilled and sometimes unseaworthy boats have become commonplace. What is maybe not in the public eye is the fact that the merchant fleet plays an important role in connection with rescue missions. The Danish Shipowners’ Association estimates that approximately 20% of the rescued refugees and migrants have been rescued by the merchant fleet. To give an impression: In the first six month of 2015 Danish vessels had been rescuing 2.660 persons, the total number for 2014 2.660 was 3.253.

Rescue duties 

The important role the merchant fleet plays is based on a very deeply rooted principle of the law of the sea: ships encountering another ship in distress at sea have to render assistance. This is not only an old noble maritime tradition but also a principle which is binding and can be found in a number of formal international legal acts.

The duty to render assistance is quite far reaching; it is triggered by a distress situation, a situation where the ship and its crew is in immediate danger. It is irrelevant in this context how and why the distress situation occurred, the main question is whether there is a distress situation or not. This means that the duty to help also exists in situations where the distress situation is the result of irresponsibly overfilling unseaworthy ships. However, there is also one crucial limitation to the duty to render assistance at sea; the principle “own safety first” means that no ship is obliged to seriously endanger the safety of the ship or the lives of the own crew.

Letting people die at sea
One of the important questions in the context of the Mediterranean Sea is the role of states and the interplay with role of the merchant fleet. The general principle is that all ships have to render assistance but it is the duty of coastal states to ensure a search and rescue system in the waters around them and to coordinate rescue operations. In the Mediterranean Sea a number of states, not only costal states from the region, and also the EU as such, are with their navies engaged with tasks in connection with the refugee crisis. One of those tasks is the search and rescue function, other tasks are the securing of borders, migrant control and crime control.

EU Frontex Operation Triton took charge of a central part of the maritime operation in October 2014 and was subsequently critized for focussing on border control and letting people die at sea. The focus has subsequently been moved to also secure the rescue of refugees and migrants but the achievement this task would not be possible without the help of the merchant fleet.

Lack of ressources
For the merchant fleet the situation in the Mediterranean Sea posed several challenges. The ships are neither equipped, nor certified for, accommodating hundreds of persons who will often be in a bad state and the crew is not trained in handling such a large-scale crisis situation. Another issue is the question of disembarkment. Persons who are taken on board after being in distress at sea are not really saved before they are back on land. The issue of disembarkment of shipwrecked persons does under normal circumstances not pose major problems as the recues persons just want to get home. In the context of the Mediteranean Sea the issue of disembarkment is however connected to the issue of migration and asylum and therefore gets far more complicated. The issues at stake were illustrated in 2001 in the Tampa case.

The M/V Tampa was a Norwegian merchant vessel, certified for housing a maximum of 50 persons, which received a call from the Australian Search and Rescue authorities to come to the rescue to an overfilled fishing vessel about to sink. The crew of the M/V Tampa managed to rescue all 433 persons on board, just in time. Some of the recued persons, which were mainly Afghan refugees, including small children, elderly persons, were in a very bad shape, some even unconscious. The nearest safe harbour was on the Australian Christmas Island which was also on the intended route of M/V Tampa.

Suicide and critical challenges

However, the Australian authorities refused to let M/V Tampa to enter Australian waters and instead ordered Tampa to return to Indonesian waters to disembark. The rescued refugees did not want to get back to Indonesia and the situation on board got very tense. Some of the refugees threatened with suicide and the humanitarian situation was critical. The master and the crew were faced with an impossible and dangerous situation. The situation cumulated when the master after 5 days concluded that the situation was getting unbearable and could not continue. He informed the Australian authorities that he intended to enter Australian waters. The Australian authorities informed the master that this would be a violation of Australian law and M/V Tampa was subsequently boarded by Australian special forces.

International out-cry
The Tampa situation lead to an international out-cry and subsequently to a clarification in the international legislation strengthening that it is the duty of the coastal states to ensure the disembarkment after a rescue operation without delay and in accordance with the intended route. However, there is still not a clear obligation for the individual coastal state to accept rescued refugees or migrants, and situations where the rescued are “stranded” on a merchant vessel for quite a while still occurs. And even if such a clear obligation would exists it is not certain that this would always solve the problem: there have been, not only in the Tampa case, situations where the rescued persons did not want to be brought to the intended place of disembarkment and this can lead to critical situations on board.

This might increasingly be the case now in the light of the agreement between the EU and Turkey which means that persons which are disembarked in Greece risk to be transferred back to Turkey. Will that mean that merchant vessels which have rescued refugees and migrant in the Aegean Sea risk situations close to mutiny when trying to disembark in Greece? Time will tell.

Further on this issue: 
• See Juridiske Emner ved Syddansk Universitet 2016, Lektor, Dr.jur., Birgit Feldtmann & Lektor, dr.jur., Kristina Siig: Bådflygtninge i Middelhavet – gamle problemer uden nye løsninger?

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