Published: 12 February 2020 Authors: Ruth Effinowicz and Stefan Talmon
Recent years have seen a large number of people, mainly from African and Asian countries trying to reach Europe via the Mediterranean. For 2019, the International Organization for Migration (IOM) reported 110,669 migrants and refugees entering Europe via the sea route. In 2019 alone, at least 1,283 persons died when trying to cross the Mediterranean. The death toll since 2014 has reached at least 19,164. This has prompted various non-State actors to organise search and rescue operations in the Mediterranean. In August 2018, the spokesperson for the German Federal Foreign Office summarised the situation as follows:
“Under normal circumstances, saving lives at sea is not a mass phenomenon but something that occurs only sporadically. Rescue at sea is governed by rules of international law. If ships take onboard rescued persons, they can be brought to the nearest port. The fact that we now have a situation where thousands of people are trying to cross the Mediterranean to Europe has changed the situation.”
This changed situation has given rise to difficult legal questions. Some of these questions have been addressed by the German Federal Government in replies to parliamentary questions and enquiries by the media.
Duty to render assistance to migrants and refugees in distress at sea
The Federal Government generally acknowledged the existence of an international law obligation to render assistance to refugees in distress at sea, stating in response to a parliamentary question:
“An obligation to rescue refugees in distress at sea already arises from European and international law. Accordingly, there is an obligation laid down in internationally binding conventions (such as UNCLOS [the United Nations Convention on the Law of the Sea] and the International Convention for the Safety of Life at Sea) to rescue shipwrecked persons whose life is in danger, which no captain may evade.”
The Federal Government also recognised the customary character of the duty to render assistance in the United Nations Convention on the Law of the Sea (UNCLOS). This was relevant because Libya – one of the coastal States in the Mediterranean and the main country of departure for migrants – is not a party to the UNCLOS. Libya is, however, a party to the International Convention on Maritime Search and Rescue (SAR Convention). With regard to the character of these obligations and their geographical scope, the Federal Government stated:
“The rights and obligations concerning maritime rescue under the Annex to the 1979 ‘Search and Rescue’ Convention (SAR Convention) and the United Nations Convention on the Law of the Sea apply at sea without any geographical limits. This is true, in particular, for the obligations relating to the establishment of national search and rescue services, the coordination of search and rescue operations and the provision of assistance in cases of distress at sea. These obligations are not limited to the high seas or other maritime zones within the meaning of the United Nations Convention on the Law of the Sea.
Libya is a State Party to the SAR Convention; the provisions on maritime rescue in the United Nations Convention on the Law of the Sea constitute codified customary international law and as such also apply to Libya. Even if Libya has so far not complied with the above-mentioned obligations, this does not affect the binding character of Libya’s obligations under customary international law. In particular, the general obligation to provide assistance to any person in distress at sea also applies to captains of ships flying the Libyan flag or commanders of Libyan State vessels.”
Rights and duties of coastal States with regard to rescue at sea
The Federal Government took the view that the duty to provide the necessary infrastructure for maritime rescue operations lies with the Mediterranean coastal States. In response to a parliamentary question, it declared:
“The Federal Government recognises the need for reliable procedures and responsibilities, taking into account the obligations under international law. According to these obligations the organisation of maritime rescue operations in the Mediterranean is the responsibility of the competent coastal States.”
“The Federal Government adheres to its view, derived from current international law, that the organisation of rescue at sea in the Mediterranean is the responsibility of the competent coastal States. […] Since the coordination of rescue at sea in the Mediterranean is the task of the Mediterranean coastal States, no funds are provided for this task in the 2019 federal budget.”
In order to organise and coordinate rescue at sea in the Mediterranean, coastal States may establish maritime search and rescue regions (SAR regions). However, this cannot be done unilaterally but must be coordinated with neighbouring coastal States and must be notified to the International Maritime Organization (IMO). According to the Federal Government, such SAR regions do not extend the coastal State’s jurisdiction into the high seas. The Federal Government explained with regard to Libya:
“In the notified search and rescue region, forces of the Libyan Government of National Accord engaged in maritime rescue operations, such as the coastguard, are obliged to fully respect international law and standards on adequate and effective rescue at sea. In this context, Libyan forces may exercise jurisdiction only within the Libyan territorial sea (‘12-mile zone’).”
“The establishment of a search and rescue region does not entail any expansion of the Libyan territorial sea.”
“In its talks with the Government of National Accord, the Federal Government points out that the establishment of a Libyan search and rescue region does not mean an extension of Libyan sovereignty and that there must not be any restrictions of maritime rescue operations by non-governmental organisations in contravention of international law.”
The Federal Government also made it clear that the establishment of a search and rescue region does not confer any additional rights under international law upon the coastal State, but that it imposes additional obligations; namely, the obligation to coordinate maritime rescue operations. In any case, the establishment of a search and rescue region must not lead to a deterioration of the situation with regard to search and rescue activities in a certain sea area. The Federal Government warned the Libyan authorities against imposing restrictions on rescue operations carried out by non-governmental organisation off the Libyan coast.
Coastal States are under an obligation to coordinate search and rescue operations within their SAR region. The Federal Government explained:
“The coordination of a maritime rescue operation within the Libyan SAR region by Libyan authorities corresponds to obligations that arise for Libya as a State Party to the 1979 International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention).”
Within their search and rescue region, coastal States are not obligated to perform all search and rescue services themselves, but may engage private vessels. In July 2017, Italy issued a “Code of Conduct for Non-Governmental Organisations (NGOs) engaged in the rescue of migrants at sea.” NGOs that subscribed to this Code of Conduct undertook a number of commitments. The Federal Government commented on the Code of Conduct as follows:
“The Federal Government understands the voluntary commitment of NGOs on the basis of the Code of Conduct as a contribution to the fulfilment of the obligation incumbent on Italy under Article 98(2) UNCLOS to ensure an adequate and effective search and rescue service, to involve NGOs in the performance of this task and to establish common rules of conduct for this purpose.”
The rights of the coastal State with regard to rescue at sea are generally limited to its search and rescue region. For example, a coastal State may issue instructions only to vessels within its SAR region. The Federal Government explained:
“German authorities have no authority to order ships outside the German search and rescue region (SAR region) to call at a specific port for the purpose of disembarking the rescued persons.”
According to the Federal Government, coastal States have several obligations within their SAR region:
“Under the International Convention on Maritime Search and Rescue (SAR Convention) of 1979, Libya is responsible and obliged to establish and operate in its national search and rescue region (SAR region) a search and rescue service and a national maritime rescue coordination centre, and to ensure the coordination of rescue operations in individual cases.
Corresponding obligations and responsibilities apply in the SAR regions of the other Mediterranean coastal States concerned.
This is without prejudice to the general obligation under international law to provide assistance to any person in distress at sea.”
In particular, with regard to the obligation to establish maritime rescue coordination centres, the Federal Government stated:
“The obligation to set up maritime rescue coordination centres derives from paragraph 2.3.1 of the Annex to the SAR Convention. In this context, paragraph 1.1 of the Annex to the SAR Convention states generally that the uniform application of this provision by all the Contracting Parties to the Convention is required in the interest of safety of life at sea.
The obligation under paragraph 2.3.1 of the Annex to the SAR Convention can be fulfilled by the Contracting Parties individually or in cooperation with other States.”
However, a Libyan SAR region was only officially acknowledged by the IMO in June 2018, when its coordinates and other relevant information were publicised in the Global Integrated Shipping Information System (GISIS). According to the Federal Government the absence of an SAR region did not absolve Libya from its obligations as a coastal State. In response to a parliamentary question the Federal Government declared in July 2017:
“The obligation to ensure assistance to any person in distress at sea under the United Nations Convention on the Law of the Sea and the SAR Convention is independent of the establishment of national search and rescue services and the establishment of maritime rescue coordination centres. Furthermore, the SAR Convention requires coordination among the coastal States concerned regarding the establishment and delimitation of the respective SAR regions and, consequently, regarding the area of responsibility of the national maritime rescue coordination centres. If, as in the case of Libya, an SAR region has not yet been established, this does not lead to an extension of the corresponding rights and obligations concerning coordination, etc. of the neighbouring coastal States.
If need be and with the consent of the coastal State concerned, or in the case of its inability to act, the coordinating role may be assumed by the sea rescue coordination centre of a neighbouring coastal State in accordance with the spirit and the purpose of the SAR Convention and the United Nations Convention on the Law of the Sea.”
Rights and duties of on-scene coordinators
According to the SAR Convention, the activities of search and rescue units and other facilities engaged in search and rescue operations shall be co-ordinated on-scene to ensure the most effective results. With regard to the Libyan coastguard being designated as on-scene coordinator by the Italian rescue coordination centre, the Federal Government declared:
“The obligation to provide assistance to any person in distress at sea under the United Nations Convention on the Law of the Sea and the SAR Convention applies irrespective of the designation of an ‘on-scene coordinator’ in individual cases by the relevant maritime rescue coordination centre or, alternatively, by the ships involved in the rescue operation on the spot. Where Libyan coast guard ships are designated as ‘on-scene coordinators’ within the meaning of the SAR Convention, the task of effective coordination of the search and rescue operation on the spot is added [to the existing obligations], taking into account the available resources and needs.”
The Federal Government explained the duties of an on-scene coordinator as follows:
“Furthermore, the correct designation for the person leading the search activities in English is ‘on-scene coordinator’, not ‘on-scene commander’. Correcting the use of term is also helpful to understand the task involved. It is not about command during an operation, but about coordination to ensure the best possible rescue at sea.”
Being designated on-scene coordinator does not confer any additional powers. In particular, the on-scene coordinator is not entitled to use force against other vessels involved in a maritime rescue operation. The Federal Government explained:
“According to para. 4.7.1 of the Annex to the SAR Convention, the on-scene coordinator is obliged to coordinate the rescue operation in such a manner as to ensure the most effective results. International law does not provide a basis for forcible measures by the on-scene coordinator against rescue measures of other ships.”
Rights and duties of private vessels engaged in maritime rescue operations
Private vessels are under an obligation to comply with the instructions of national maritime rescue coordination centres and on-scene coordinators. The Federal Government explained:
“The obligation of a captain under international law to comply with the request of a national maritime rescue coordination centre (MRCC) and to assist a ship in distress as quickly as possible is derived from the Annex to the International Convention for the Safety of Life at Sea of 1974 (SOLAS Convention), Chapter V, Regulation 33, paragraph 2, second half-sentence.
The obligation under international law to comply with the orders of the person designated as the ‘on-scene coordinator’ is laid down in the Annex to the International Convention on Maritime Search and Rescue of 1979 (SAR Convention), para. 4.7.2.
The requirements of international law apply irrespective of the flags of the units involved.
These obligations under international law have been transposed into [German] domestic law and are binding on ships flying the German flag (section 2, paragraph 1, second sentence, of the Ordinance on the Safety of Shipping (SeeFSichV)).”
The obligation to comply with the instructions of the rescue coordination centres exists irrespective of the nationality of the relevant authorities. With regard to instructions by the Libyan authorities, the Federal Government stated:
“The coordination of a maritime rescue operation within the Libyan SAR region by Libyan authorities corresponds to obligations that arise for Libya as a State Party to the 1979 International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention). Ships involved in maritime rescue operations must comply with the orders of the relevant rescue coordination centre of the SAR region and other bodies which identify themselves as being responsible for coordinating search and rescue operations.”
“If forces of the Libyan coastguard have been designated as on-scene coordinator, their instructions concerning rescue at sea in terms of Article 98(1) of the United Nations Convention on the Law of the Sea (UNCLOS) must be followed.”
The designation of an on-scene coordinator, however, does not absolve private vessels from rendering assistance to persons in distress at sea. The Federal Government explained:
“The designation of an on-scene coordinator is without prejudice to the general obligation of other captains at the scene to render assistance in accordance with Article 98 UNCLOS and to coordinate the units involved in order to ensure the most effective search and rescue measures in the search area in accordance with paragraph 4.7 of the Annex to the SAR Convention.”
The Federal Government also made it clear that captains who do not comply with the instructions of an on-scene coordinator may face sanctions. Such “sanctions may result from the respective applicable national law.” In Germany, non-compliance with instructions from a maritime rescue coordination centre or an on-scene coordinator can be punished as an administrative offense with a fine of up to fifty thousand euros.
Private vessels have no right to disembark persons rescued at sea in a particular State. The Federal Government stated:
“Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1979 International Convention on Maritime Search and Rescue (SAR Convention) and the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention), captains are required to provide assistance to persons in distress at sea. Notwithstanding this obligation to render assistance, there is no right under international law to disembark the rescued persons in a particular coastal State. In this context, international law only recognises an obligation of the States concerned to cooperate in order to take the rescued persons to a place where they can be disembarked.
According to the provisions of UNCLOS, internal waters, including ports, are subject to the full territorial sovereignty of the respective coastal State. Subject to their obligations under international treaties, States have the right to control the entry, residence and expulsion of foreign nationals. In principle, therefore, Italy has full discretion to regulate access to its ports, taking into account the aforementioned obligation to cooperate and, if applicable, other obligations under international treaties which may be applicable in individual cases.
European Union law does not provide for any other general disembarkation regime for NGO and navy ships.”
While the Federal Government acknowledged a customary international law right of vessels in distress to enter foreign ports, this right did not necessarily include a right to disembark persons rescued at sea. The Federal Government stated:
“The so-called right of vessels to access ports in case of distress, which has its basis in customary international law, is a separate legal institution which exists independently of the rules of international law on rescue at sea. As an exception to the principle of the sovereignty of the coastal State, it must be construed narrowly.
Exercising the right of port access for ships in distress, especially entering the port of a coastal State, does not, as a matter of principle, give rise to a right under international law to disembark the crew and all passengers and to let them enter the coastal State in question without its consent.
The coastal State in question may avert entry into its territorial sea by providing the vessel with supplies, thereby ending any emergency situation on board.”
If NGO vessels face problems disembarking persons rescued at sea, the captain is to turn to the flag State for assistance. The Federal Government declared:
“In case of need of assistance – including in connection with maritime rescue operations – it is, in the first instance, the flag State of the vessel of the NGO that should act and is entitled to act. In none of the cases was this the Federal Republic of Germany. Nevertheless, the Federal Government has intervened with maritime rescue coordination centres to achieve quick solutions, whenever Germans were affected.”
Delivery of persons rescued at sea to a “place of safety”
Persons rescued at sea must be delivered to a “place of safety”. There is some controversy about the meaning of this term. In particular, it is disputed whether Libya qualifies as a place of safety considering the dismal human rights situation in that country. The Federal Government made it clear that the term must be interpreted in the context of the law of the sea, not international human rights law. It stated:
“In its judgment ‘Hirsi Jamaa and others v Italy’ of 23 February 2012[…], the European Court of Human Rights (ECHR) does not make any declaration on a so-called ‘place of safety’ in the sense of international law of the sea.”
The Federal Government also made it clear that a “place of safety” as not the same as a “safe country of origin” in terms of domestic asylum law. It stated:
“The rules and procedures for disembarkation of persons rescued from distress at sea apply irrespective of the classification of a State as a safe country of origin.”
The term “place of safety” is not to be confused with “safe harbour”. The Federal Government explained:
“Neither the United Nations Convention on the Law of the Sea (UNCLOS) nor the 1974 International Convention for the Safety of Life at Sea (SOLAS) or the 1979 International Convention on Maritime Search and Rescue (SAR Convention) use the term ‘safe harbour’. Instead, both the SOLAS Convention and the SAR Convention use the term ‘place of safety’. This term is specified in more detail in paragraphs 6.12 to 6.18 of Resolution MSC.167(78) of the International Maritime Organization. This definition is aimed at the practical termination of the particular threat to the survivors’ safety of life, whereby the circumstances of each individual case must be taken into account.”
A “place of safety” is also not limited to ports. The Federal Government stated:
“Under international law of the sea, it must be ensured that persons rescued from distress at sea are taken to a place of safety. This is usually a suitable port, but may also be another ship in the vicinity.”
Against this background, the Federal Government concluded that such “places of safety” also exist in Libya, irrespective of the human rights situation in the country. It stated:
“The United Nations Convention on the Law of the Sea (UNCLOS) requires the rendering of assistance to persons found in distress at sea. Resolution MSC.167(78) of the International Maritime Organization deals with the concept of a place where persons rescued at sea may be disembarked. The term interprets the general duty to render assistance according to Article 98 UNCLOS and is aimed at ending the particular threat to the survivors’ safety of life and at ending the particular rescue operations. Such places also exist in Libya. […] Furthermore, in talks with the Libyan Government, the Federal Government is working to ensure that international human rights standards are observed in the treatment of refugees and migrants.”
Disembarkation of persons rescued at sea and international human rights obligations, including the principle of non-refoulement
The Federal Government confirmed that the principle of non-refoulement and other human rights obligations are generally applicable onboard government ships. It stated:
“Insofar as refugees are found at sea in danger of being lost, there is an obligation to render assistance, which is laid down in internationally binding conventions (including the United Nations Convention on the Law of the Sea and the International Convention for the Safety of Life at Sea). No captain may evade that obligation.
When dealing with refugees/shipwrecked persons at sea, the relevant international law parameters must be fully observed. This applies in particular to the recognised non-refoulement principle derived from Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which according to the case law of the European Court of Human Rights (ECtHR) also applies on board of government ships or warships whose flag State is a Contracting Party to the ECHR. It also applies to the EU acquis on refugee law.”
With regard to the extraterritorial application of international human rights obligations binding on Germany, the Federal Government declared:
“On the high seas, ships are subject to the exclusive jurisdiction of the flag State in accordance with Article 92 of the United Nations Convention on the Law of the Sea of 10 December 1982. Sovereign powers existing under domestic law may also be exercised on such a ship, subject to international law.
The territorial scope of application of the human rights obligations binding upon the Federal Republic of Germany cannot be determined in general. Rather, it must be derived from the respective instrument itself. Government ships of the Federal Republic of Germany operating within the territory of the Federal Republic of Germany are subject to the obligations under the Geneva Convention on Refugees. The applicability of the Geneva Convention on Refugees outside the territory of the Contracting States is disputed. […] With regard to the International Covenant on Civil and Political Rights, the Federal Government has declared to the United Nations Human Rights Committee that, in case of deployments of its police forces or armed forces abroad, Germany guarantees the rights recognised in the Covenant to all persons subject to its jurisdiction. This declaration also applies, mutatis mutandis, to the other UN human rights conventions.”
Germany considered international human rights obligations to be applicable extraterritorially only in exceptional cases if a person was subject to its jurisdiction. With regard to the applicability of the ECHR outside the territory of the Member States of the European Union (EU), the Federal Government declared:
“In the decision of the European Court of Human Rights (ECtHR) in Bankovic v Belgium, the Grand Chamber of the ECtHR established the principles on the applicability of the European Convention on Human Rights outside the territory of the [EU] Member State concerned. The principles laid down in that judgment therefore also apply to State conduct in international waters and at the EU’s external borders, provided the conduct occurs outside the territory of the Member State acting.”
The question of the applicability of the principle of non-refoulement also arose in connection with the cooperation between EU Member States, which are bound by the ECHR, and Libya. In particular, the Federal Government was asked to comment on whether the designation of a Libyan coastguard vessel as on-scene coordinator by the Italian maritime rescue coordination centre violated the principle of non-refoulement, if during a maritime rescue operation the Libyan coastguard vessel refused offers from other ships to take onboard refugees rescued at sea and instead returned them to Libya. The Federal Government replied:
“The obligation of non-refoulement under international law applies to States with regard to persons who are at their border or present on their territory, or who, depending on the circumstance, are taken onboard by a government ship on the high seas. The mere fact that a maritime rescue coordination centre designates an ‘on-scene coordinator’ within the meaning of the SAR Convention does not mean for the [flag] State of the ‘on-scene coordinator’ that the persons to be rescued from distress would thereby automatically come within its jurisdiction and fall under the relevant international law guarantees. In this respect, the Federal Government cannot see any violation of the prohibition against refoulement in this situation.”
In reply to a parliamentary question, the Minister of State for Europe at the Federal Foreign Office elaborated further on this situation, stating:
“In your question, you refer to a ‘transfer of responsibilities of the Italian maritime rescue coordination centre’ to the Libyan coastguard. That is an incorrect statement […]. In the context of a maritime rescue operation, the Italian maritime rescue coordination centre merely coordinates the rescue operations of the rescue units involved at the scene of the incident. However, this does not involve any transfer of responsibilities to the rescue units. Moreover, the coordination of several rescue units on the scene by the Italian maritime rescue coordination centre does not amount to an exercise of de facto control over the persons to be rescued. In the Federal Government’s opinion, there can therefore be no violation of the prohibition against refoulement.
According to the International Convention on Maritime Search and Rescue of 1979, a coordinating unit has the responsibility of arranging and coordinating, or organising maritime rescue operations effectively, taking into account all resources available on the scene. An obligation to allow entry into Europe in this situation cannot be derived from the prohibition against refoulement.”
The Federal Government also took the view that the prohibition against refoulement was not applicable to Libyan forces returning rescued refugees to Libya, from where they had set out on their journey to Europe. It declared:
“According to the principle of non-refoulement under international law, a State may not expel or return refugees to a (another) State where they would face certain threats. For that reason, the above-mentioned situation, in which persons coming from Libya are rescued at sea by the Libyan coastguard and brought back to Libya for disembarkation, does not fall under the prohibition against refoulement under international law.”
NGOs and the captains of private vessels engaged in maritime rescue operations argued that they were prevented by international human rights law and, in particular, the Geneva Convention on Refugees from returning refugees rescued at sea to Libya. The Federal Government did not agree, stating:
“Non-State actors are in principle not bound by the European Convention on Human Rights or the principle of non-refoulement of the Geneva Convention on Refugees.”
“In a case where a State takes measures to bring a person, for example, to Libya, the European Convention on Human Rights and the prohibition against refoulement under international law are, of course, applicable. But this applies [only] to the case where a State is acting. […] State action is a precondition for the application of the European Convention on Human Rights or the prohibition on refoulement under international law.”
“International treaties such as the European Convention on Human Rights and the Geneva Convention on Refugees bind the Contracting States that have acceded to them and establish obligations with regard to the particular sovereign acts of State agencies. The prohibition against refoulement under international law is not addressed to private actors.”
“According to Article 3 of the UN Convention against Torture, a State Party may not expel, return or extradite a person to another State if there are substantial grounds for believing that the person could be subjected to torture there. The Convention against Torture is binding only on States Parties. As an inter-State agreement, the UN Convention against Torture is not binding on non-State actors. Whether there is a violation of Article 3 of the UN Convention against Torture can only be determined with knowledge of and in consideration of the circumstances of a specific case.”
The steady movement of migrants across the Mediterranean Sea has led NGOs to conduct private maritime rescue operations. This has given rise to numerous moral, political and legal questions and has forced the Federal Government to take a position on these questions. The Federal Government’s replies are reflective of its attempts to reconcile different and conflicting policy aims. While it “has publicly emphasised on several occasions that civil-society organisations make an important contribution to maritime rescue,” it has also emphasised that private vessels must cooperate with the coastal States, including Libya.
The Federal Government usually takes a cautious approach in its legal assessment. As a rule, it follows the legal mainstream. For example, it takes the position that the right of vessels to enter foreign ports in case of distress is established as a rule of customary international law. However, this is not undisputed.
Some of the Federal Government’s statements give the impression that private vessels and their captains are subject to an obligation to render assistance to persons in distress at sea directly under international law, without that obligation having to be transposed into domestic law first. The views in the literature are divided on this question. While some see such an obligation established by certain treaties, others have argued that those treaties are establishing only an obligation on States to enact respective obligations under their domestic law. With regard to UNCLOS, the European Court of Justice held in Intertanko and others that “UNCLOS does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States.”
The Federal Government’s view that the prohibition against refoulement is applicable to government ships, but not to private vessels, is widely accepted. The same is true for the application of the ECHR. The fact that a private vessel is flying the flag of a Contracting Party of the ECHR does not automatically make the Convention applicable to that ship. The Convention may, however, be applicable to a private vessel and the rescued refugees on board where the vessels itself is within the jurisdiction or subject to the effective control of the authorities of a Contracting Party. Such situations may arise if the private vessel enters or is forcibly blocked from entering the territorial sea of a Contracting Party, or the warships or other government ships of a Contracting Party take control of the private vessel on the high seas.
The designation of ships of the Libyan coastguard as “on-scene coordinator” by the maritime rescue coordination centre in Rome was considered unproblematic by the Federal Government in terms of international human rights law. While this is generally correct, such designations may be problematic if there was evidence that private vessels engaged in maritime rescue operations had been subjected to the systematic use of violence by Libyan coastguard units. This may explain why the Federal Government was not particularly interested in establishing the facts of specific incidents of violence against private rescue vessels. Alleged lack of knowledge may have protected the Federal Government here from reaching some politically unwanted legal conclusions.
The Federal Government’s statements do not support the view that the order given to a private vessel by a maritime rescue coordination centre of a Contracting Party to the ECHR to return rescued persons to Libya would violate the prohibition against refoulement. The rescue coordination centre does not exercise effective control over the acts of private vessels in terms of Article 8 of the Articles on State Responsibility. This is even more the case, if the rescue coordination centre of a Contracting Party to the ECHR designates a Libyan coastguard vessel as on-scene coordinator and the on-scene coordinator makes sure that rescued refugees are returned to Libya. It is true that the Federal Government took the position that private vessels are under an obligation to follow the instructions of the maritime rescue coordination centre. For ships flying the German flag this obligation, however, results from domestic law, not international law. According to Article 92(1) UNCLOS ships on the high seas are generally subject to the exclusive jurisdiction of the flag State. Neither UNCLOS nor any other international treaty establishes a binding legal obligation upon ships outside the territorial sea of a State to comply with disembarkation instructions of the maritime rescue coordination centre of that State.
The Federal Government’s view that there exist places of safety in Libya has been challenged both by NGOs and in the legal literature. Some of these opposing views adopt a wider meaning of the term “place of safety” which includes human rights considerations. The Federal Government, on the other hand, takes a purely law of the sea approach which allows it to maintain its position while, at the same time, acknowledging that rescued persons are transferred to “detention centres” in Libya, where there are “inhumane conditions”. The Federal Government’s position seems in line with the IMO’s Guidelines on the Treatment of Persons Rescued at Sea which define “place of safety” as places where “the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met.” The Guidelines expressly refer to “human needs”, not human rights, and to the “humanitarian obligations” of governments, not their human rights obligations.
While the Federal Government has made many statements setting out its legal position on maritime rescue operations, there are at least an equal number of cases where it evaded the question, gave empty answers without substance or claimed that it did not have any knowledge of the facts and, for that reason, could not answer the question. Considering the numerous armed conflicts, the effects of climate change and lack of prospects for young people in many countries in Africa, the Middle East and Asia, mass migration over the Mediterranean will continue and so will private maritime rescue operations. It is thus to be expected that the Federal Government will face more questions on the topic in the years to come.
Category: Law of the sea