Places of Safety in the Mediterranean: The EU’s Policy of Outsourcing Responsibility
The international law of the sea requires assistance to be provided to vessels in distress and that states maintain adequate SAR (Search and Rescue) capacities. It is of vital importance that rescuees are brought to a “Place of Safety”. However, SAR and the disembarkation of persons in distress at sea in the Mediterranean continue to be met with great reluctance by EU Member States and EU institutions. By ceasing rescue activities in the Mediterranean, EU governments have outsourced their responsibility for saving lives. NGOs stepping in and trying to fill this gap have been increasingly criminalised and prosecuted. At the same time, EU Member States and the European Commission have explored “regional disembarkation platforms” outside the European Union since 2018.
Against this background, the Brussels Office of the Heinrich Böll Foundation has commissioned this study by Prof. Dr. Anuscheh Farahat and Prof. Dr. Nora Markard. The authors assess the following questions from a legal point of view:
Would the disembarkation of migrants and refugees in North African countries by EU state vessels, including vessels participating in a Frontex operation, comply with international obligations and European law? Thus, can Algeria, Egypt, Libya, Morocco and Tunisia be considered “Places of Safety” for rescued persons?
Can private vessels, including NGO rescue vessels, be obliged to disembark rescued migrants and refugees in places which are unsafe? Can they refuse to follow such a command without breaking the law? Is it in line with international and EU law if European Maritime Rescue Co-ordination Centres (MRCCs) shift their coordination responsibility for SAR onto MRCCs in North Africa?
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Table of contents
Preface -7
Political Implications of the Study: Europe has a Duty to Rescue -8
Executive Summary -10
Introduction -12
1. Defining Places of Safety -14
1.1 The Obligation to Deliver Rescues to a Place of Safety
1.2 Conditions for Places of Safety
1.3 Selecting a Place of Safety for Disembarkation
2. Places of Safety on the North African Coast? -18
2.1. Algeria
2.2 Egypt
2.3 Libya
2.4 Morocco
2.5 Tunisia
2.6. Consequences for Finding Places of Safety in North Africa
3. Disembarkation in North African States by EU Member State Authorities -31
3.1 Obligations of Individual EU Member States
3.2 Obligations During FRONTEX Operations
4. Disembarkation in North African States by Private Vessels -36
4.1 The Role of MRCCs in Selecting Places of Safety
4.2 Obligations of Shipmasters Regarding Places of Safety
4.3. Who is Responsible? Attribution of Responsibility of Private Actions to States
5. Cooperating with North African Rescue Co-ordination Centres -40
5.1 The SAR Zone System
5.2 Using Proxies in International Law
5.3 Obligations of Captains to Render Assistance in SAR Scenarios
6. Conclusions -46
Short Biographies -49