C Explanatory memorandum
by Ms Petra De Sutter, rapporteur
1. Following an initiative by
the Socialists, Democrats and Greens Group, the Parliamentary Assembly decided
on 25 June 2018 to hold a debate under urgent procedure on “International
obligations of Council of Europe member States: to protect life
at sea”. The Committee on Migration, Refugees and Displaced Persons was
seized for report and appointed me rapporteur.
This initiative was triggered by two incidents which caught
wide attention in the media and in politics. At first, the governments
of Italy and Malta refused entry to their national ports for the MS Aquarius
, which is operated by
the French–German non-governmental organisation (NGO) SOS Méditerranée
and owned by the German NGO Sea Watch and which had rescued asylum
seekers off the coast of Libya.Note
Spain finally offered entry to the MS Aquarius
as a humanitarian gesture.Note
Shortly thereafter, the MS Lifeline
, which is operated under
the Dutch flag by the German NGO Mission Lifeline and had also rescued
asylum seekers off the coast of Libya, was also refused entry to
Italian and Maltese ports.Note
3. The Assembly has several times addressed the issue of lives
lost in the Mediterranean Sea and the need to rescue refugees and
migrants on unseaworthy vessels. It is therefore necessary to clarify
the relevant legal obligations of our member States and provide
guidance on how humanitarian aid can be supported by member States
individually as well as through closer co-operation at European
It is important to emphasise that the fundamental right to
protection of human life and the respect for human dignity must
be the yardstick of all political action in this area. The Missing
Migrants Project of the International Organization for Migration
(IOM) estimates that 960 people have been lost in the Mediterranean Sea
in the first half of 2018.Note
In the face of such immense human
tragedy, we cannot look away from this challenge. The Council of
Europe must be one of the pillars upholding humanitarian standards
and international law.
5. People who are facing so much pressure that they put their
lives at risk in order to flee from their country, should be treated
with respect and be afforded the humanitarian assistance necessary
to protect their lives and to ensure that their applications for
refugee status can be made in accordance with international standards.
2 International legal standards
Convention of 1974 for the Safety of Life at Sea
6. While it has been a common
principle of customary international law that a vessel in distress
could enter a foreign port, the International Convention for the
Safety of Life at Sea of 1974 codified many earlier customary principles.
Under its Regulation V/33.1, a ship at sea, which can provide assistance
and receives information that persons are in distress at sea, should
proceed with all speed to their assistance.
7. Regulation V/7 stipulates that necessary arrangements should
be made by national authorities for distress communication and co-ordination
in their area of responsibility and for the rescue of persons in
distress at sea around their national coasts. These arrangements
shall include the establishment, operation and maintenance of search
and rescue facilities.
Convention of 1979 on Maritime Search and Rescue
8. In order to lay down common
standards for search and rescue operations, the International Convention on
Maritime Search and Rescue was created five years later. Under its
Chapter 2.1.10, States shall ensure that assistance is provided
to any person in distress at sea, regardless of the nationality
or status of such a person or the circumstances in which that person
is found. Chapter 1.3.2 requires that persons in distress at sea
shall be provided with initial medical or other needs, and shall
be delivered to a place of safety.
9. In May 2004, several amendments to the convention were adopted
which concern persons in distress at sea. They include a new definition
of persons in distress in chapter 2, new paragraphs in chapter 3
regarding assistance to the master of a ship at sea in delivering
persons rescued at sea to a place of safety as well as a new paragraph
in chapter 4 regarding rescue co-ordination centres initiating the
process of identifying the most appropriate places for disembarking
persons found in distress at sea.
10. The latter provisions seem particularly relevant for cases
like the ones described above concerning the MS
Aquarius and the MS Lifeline. Member
States should co-operate more closely in coming to a unified interpretation
of these provisions and establishing new provisions, in particular
regarding the identification of the most appropriate places for
disembarking asylum seekers found in distress at sea. However, the
2004 amendments have not been ratified by all member States including
Malta, which is positioned close to the Libyan coast.
Nations Convention of 1982 of the Law of the Sea
11. Under Article 98 of the 1982
United Nations Convention of the Law of the Sea:
(1) Every State shall require the master of a ship flying
its flag, in so far as he can do so without serious danger to the
ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger
of being lost;
(b) to proceed with all possible speed to the rescue of persons
in distress, if informed of their need of assistance, in so far
as such action may reasonably be expected of him;
(c) after a collision, to render assistance to the other ship,
its crew and its passengers and, where possible, to inform the other
ship of the name of his own ship, its port of registry and the nearest
port at which it will call.
(2) Every coastal State shall promote the establishment, operation
and maintenance of an adequate and effective search and rescue service
regarding safety on and over the sea and, where circumstances so
require, by way of mutual regional arrangements co-operate with
neighbouring States for this purpose.
12. In Europe, coastal States have
set up search and rescue services. However, the co-ordination of
action seems to be hampered by a confusion of geographic responsibilities,
in particular if ships are moving between rescue areas. In addition,
legal uncertainty exists as to whether a ship loses its immunity
from the application of coastal State laws when it has created the
situation of distress itself.
against the Smuggling of Migrants by Land, Sea and Air to the United
Nations Convention of 2000 against Transnational Organized Crime
13. The Protocol against the Smuggling
of Migrants by Land, Sea and Air to the United Nations Convention against
Transnational Organized Crime defines smuggling of migrants as “the
procurement, in order to obtain, directly or indirectly, a financial
or other material benefit, of the illegal entry of a person into
a State Party of which the person is not a national or a permanent
resident”. Illegal entry shall mean “crossing borders without complying
with the necessary requirements for legal entry into the receiving
14. However, under Article 31 of the United Nations 1951 Convention
relating to the Status of Refugees, “States shall not impose penalties,
on account of their illegal entry or presence, on refugees who,
coming directly from a territory where their life or freedom was
threatened in the sense of article 1, enter or are present in their
territory without authorization, provided they present themselves
without delay to the authorities and show good cause for their illegal
entry or presence”. This means that persons seeking refugee status
cannot be considered illegal immigrants if they arrive directly
from a territory where their life or freedom is threatened, and
therefore cannot be punished for doing so.
15. The latter exception for persons seeking refugee status would
also apply to standards set by the IMO concerning smuggling, trafficking
and transport of migrants by sea.
standards by the International Maritime Organization
16. The IMO has been addressing
the rescue and smuggling of persons at sea for many years, such
as in 1993 through Resolution A.773(18) on Enhancement of safety
of life at sea by the prevention and suppression of unsafe practices
associated with alien smuggling by ships.
The IMO Guidelines on the Treatment of Persons Rescued at
Sea stipulates in Article 6.7 that “[w]hen appropriate, the first
rescue co-ordination centre (RCC) contacted should immediately begin
efforts to transfer the case to the RCC responsible for the region
in which the assistance is being rendered. When the RCC responsible
for the search and rescue (SAR) region in which assistance is needed
is informed about the situation, that RCC should immediately accept
responsibility for co-ordinating the rescue efforts, since related responsibilities,
including arrangements for a place of safety for survivors, fall
primarily on the Government responsible for that region. The first
RCC, however, is responsible for co-ordinating the case until the responsible
RCC or other competent authority assumes responsibility.”Note
In 1997 followed Resolution A.867(20) on Combating unsafe
practices associated with the trafficking or transport of migrants
and Resolution A.871(20) on Guidelines
on the allocation of responsibilities to seek the successful resolution
of stowaway cases.
19. Resolution A.867(20) stipulated that “governments should co-operate
in taking, as a matter of the highest priority, all necessary action
to prevent and suppress any unsafe practices associated with the trafficking
or transport of migrants by sea.”
Under Resolution A.920(22) of 29 November 2001,Note
the IMO recognised the need to consider
whether additional international measures are necessary to improve
safety at sea and reduce the risk to the lives of persons on board
ships, in particular in rescue operations. This resolution requested
a review of relevant international conventions with a view to ensuring
that “survivors of distress incidents are given assistance regardless
of nationality or status or of the circumstances in which they are
found; ships which have retrieved persons in distress at sea are
able to deliver the survivors to a place of safety; and survivors,
regardless of nationality or status, including undocumented migrants,
asylum seekers, refugees and stowaways, are treated while on board
in the manner prescribed in the relevant IMO instruments and in
accordance with relevant international agreements and long-standing
humanitarian maritime traditions”.
21. In 2003, the IMO adopted non-binding Guidelines on Places
of Refuge for Ships in Need of Assistance, which apply to a ship
in need of assistance, meaning “a ship in a situation, apart from
one requiring rescue of persons on board, that could give rise to
loss of the vessel or an environmental or navigational hazard”. However,
the latter Guidelines do not apply to rescue operations of individuals.
22. The IMO has undoubtedly set important relevant standards and
should therefore be used as a forum for developing international
law further and ensuring that existing international legal standards
be respected more effectively as regards rescue of persons at sea.
of Europe benchmarks
23. The European Convention on
Human Rights (ETS No. 5) binds all member States and allows individuals to
apply, after having exhausted national legal remedies, to the European
Court of Human Rights in cases where their fundamental rights have
been violated by public authorities of member States. In addition,
the Convention imposes positive obligations on member States to
ensure the protection of some rights, for instance by penalising
the violation of such rights by private persons or by providing
means of redress.
24. In the context of the present report, three provisions of
the Convention are particularly relevant: Article 2 requires the
protection of everyone's right to life; Article 3 prohibits torture
and inhuman or degrading treatment; and Article 5.1.f requires that no one shall be
deprived of his or her liberty, except for “the lawful arrest or detention
of a person to prevent his effecting an unauthorised entry into
the country”. In addition, persons rescued at sea applying for refugee
status have the right to a fair trial under Article 6 and the right
to an effective remedy under Article 13 of the Convention.
In the case of Hirsi Jamaa and
others v. Italy
instance, the European Court of Human Rights found a violation of
the Convention by Italy. The United Nations High Commissioner for
Refugees submitted subsequently to the Committee of Ministers recommendations
to the Italian Government for the execution of this judgment, which
are also relevant for this report.
26. On behalf of surviving relatives of 17 persons who died in
the Mediterranean Sea on 6 November 2017 in the course of a rescue
operation by the Libyan Coast Guard and MS
Sea Watch 3, which was partly co-ordinated by the Italian
Maritime Rescue and Coordination Centre, the NGOs Global Legal Action
Network (GLAN) and Associazione per gli Studi Giuridici sull'Immigrazione/Association
for Juridical Studies on Immigration (ASGI) have recently submitted
a complaint under Article 2 (right to life), Article 3 (prohibition
of torture and inhumane or degrading treatment) and Article 4 of
Protocol 4 to the Convention (prohibition of collective expulsions)
to the European Court of Human Rights against Italy due to its co-ordination
of this rescue operation.
28. Unfortunately, the Committee of Ministers has not yet addressed
this subject by setting its own standards.
of government ships
29. Besides commercial vessels
and private ships operated by humanitarian NGOs, government ships
are often involved in search and rescue operations. As they exercise
public authority under the flag of a State, higher standards apply
to government ships, in particular as regards the respect of the
rights enshrined in the European Convention on Human Rights.
30. Therefore, member States should ensure that national coastguard
ships adhere to such higher standards when involved in the rescue
of persons at sea, for instance in the context of missions of the European
Agency for the Management of Operational Cooperation at the External
Borders of the Member States of the European Union (Frontex).
NGOs to help refugees at sea
On World Refugee Day,Note
the Council of Europe Commissioner
for Human Rights, Dunja Mijatović, expressed her concern about the
increasing pressure and restrictions put on the work of NGOs assisting migrants,
asylum seekers and refugees in Europe. She called on the lifting
of restrictions on these NGOs, including those providing maritime
search and rescue services. The obstacles to NGO work at sea in
her opinion “shows contempt for the human rights principles they
defend, and for the immense contribution to our societies they have
made”. She went on to state that co-operation and support from States
would “not only secure the rights of those in need of protection,
but also be beneficial for our societies as a whole”.
and political imperatives
32. The member States of the Council
of Europe have entered into a wide range of basic obligations through their
ratification of international conventions, beginning with the European
Convention on Human Rights which amongst others aims to protect
the right to life, the right to a fair hearing, the right to respect
for private and family life and the protection of property, while
prohibiting torture and inhuman or degrading treatment or punishment,
forced labour, arbitrary and unlawful detention, and discrimination.
The undertakings arising from this protection should be applied
within the territory of member States but also at sea.
33. Whatever the Council of Europe member States’ legal undertakings,
their moral obligations should come as an additional and superior
level of protection. It is essential to safeguard first and foremost
human life, and where human life is at stake, saving people must
come before all other considerations.
35. These texts all call for “zero-tolerance” action where lives
in danger at sea are concerned, and emphasise the need to first
of all save people without regard for the processes and legislation
which should be applied to them once their safety has been secured.
The Commissioner for Human Rights has also insisted that saving
lives at sea is an obligation that cannot be circumvented under
any circumstances, and that European co-operation is crucial to
ensure sufficient search and rescue capacity.
36. The refusal of Italy and Malta to allow boats carrying shipwrecked
migrants to dock is partly the result of right-wing, protectionist
and populist politicians coming to power. The argument that breaking
point has been reached and that these countries are saturated with
arrivals is contradicted by figures: as United Nations High Commissioner
for Refugees Filippo Grandi stated on 22 June 2018, “Europe today
is no longer in the crux of a migration or refugee crisis. Mediterranean
arrivals numbers are at pre-2014 levels and are dropping towards their
long-term historic averages”.
37. On the other hand, as international organisations have continually
repeated, it is also the result of a lack of solidarity on the part
of other European States. The failure to share responsibility for
the reception and integration of migrants gives substance to arguments
in front-line countries, among both politicians and the population
at large that they are assuming much more than their fair share
in saving and hosting migrants coming into Europe. The protracted
nature of the context does not help: political solutions to the
situation, in particular the conflict in Syria, seem no nearer than
they were in 2011.
38. My experience in preparing
the urgent debate on the subject of this report has led to the strengthening of
several strong personal convictions as a politician, which I hope
will be shared by the Assembly during the debate.
39. The first of these is that saving lives is a moral, legal
and absolute requirement for member States, in the same way as it
is for individuals. Member States cannot close their eyes to human
suffering whether it is on their doorstep or on that of their neighbours.
The legal provisions outlined in the report can only serve to frame
this fundamental duty to respect the right to life, the right to
human dignity, decent living conditions and to be heard in fair
40. The only way to ensure the fulfilment of this obligation,
in particular in the context of this report, is to disconnect rescue
operations carried out by member States from responsibility for
the future of asylum seekers. Saving the lives of asylum seekers
should not imply a subsequent overstretching of national resources
through the need to support practically alone the reception and
integration of migrants in numbers proportional to those rescued.
This is especially true as most of Europe’s border countries are
already suffering from a prolonged economic downturn. Europe, and
in particular European Union member States, must make more efficient
use of mechanisms to share costs, resources and infrastructure devoted
to migration management. The European Union must lead the way in
working to finally ensure fair and regular resettlement.
41. Although it cannot be said that European States are directly
responsible for the current high migration flows, the closure of
borders one after another puts asylum seekers in even more life-threatening
situations as journeys become longer and routes more dangerous.
The harrowing experience of the migrants aboard the MS Aquarius whose journey to safety
was lengthened by almost a week by the Italian and Maltese refusals
is the latest example, but there are many others. In this area too,
the European Union’s increasing focus on border security (and demands
on partner countries to enforce this security) does not comply with
the obligation to respect human rights and dignity above all.
42. There is no certainty whatsoever that making travel for asylum
seekers safer would increase the likelihood of their setting off
on their journey. The only factor which would really reduce the
determination of refugees to seek better lives would be to address
successfully the root causes of forced migration – peace-keeping,
development co-operation, economic and social support. Therefore,
States must also do everything in their power to increase the fight
against smuggling and trafficking which would do much to reduce
the deadly danger of the journeys undertaken by people fleeing conflict
and oppression, and at the same time de-escalate tensions between
countries of origin, transit and destination.