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International Journal of Refugee Law Vol. 23 No. 3 pp. 538–557
© The Author (2011). Published by Oxford University Press. All rights reserved.
For Permissions please email: journals.permissions@oup.com
doi:10.1093/ijrl/eer017, Advance Access published on June 22, 2011
A Double Bind: Malta and the Rescue of
Unwanted Migrants at Sea, a Legal
Anthropological Perspective on the
Humanitarian Law of the Sea
SILJA KLEPP*
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 con-
cerning 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 disem-
bark rescued boat migrants are debated. The ambiguities in the responsibilities cause prob-
lems 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
* Research Associate, Research Center for Sustainability Studies (artec), University of Bremen. The
author would like to thank Dr Jeanne Féaux de la Croix and Katja Hessenkämper for their comments
on the article.
1 Fortress Europe, ‘I numeri del Canale di Sicilia anno per anno’, available at: <http://fortresseurope.
blogspot.com/2006/01/i-numeri-del-canale-di-sicilia-anno.html> (last accessed 25 June 2010). Fort-
ress Europe is a press review blog that monitors all fatalities at the European border linked to migration.
2 F. von Benda-Beckmann, K. von Benda-Beckmann and A. Griffiths, ‘Mobile People, Mobile Law:
An Introduction’ in F. von Benda-Beckmann, K. von Benda-Beckmann and A. Griffiths (eds.), Mobile
People, Mobile Law: Expanding Legal Relations in a Contracting World (2005), 1–25 at19.
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Malta and the Rescue of Unwanted Migrants at Sea
1. Introduction
In recent decades, the margins of the Mediterranean region have gone
through enormous changes: previously taken for granted national borders
became contested external borders of the European Union (EU). National
law was complemented or replaced by European law in the fields of
border control and refugee protection. On the one hand, legal migration
routes to the EU have been restricted; on the other, the control of
informal migration routes in the Mediterranean Sea has been extended.
Countries located in the centre of the EU, such as Germany, have had
declining numbers of asylum applications since 2002. In contrast, member
states at the external borders have increasingly become the neuralgic spaces
of migration and refugee protection: in 2008, Malta and Italy received
more asylum applications than ever before.
The effects of the relocation of borders and of the European refugee
protection system have been especially strong around the Mediterranean
Sea: in particular, gaining access to the refugee protection systems of the
EU has become increasingly difficult for potential refugees.3 The security
forces in the border region are currently operating in unstable legal and
political contexts in which the principle of non-refoulement4 and other aspects
of refugee protection at sea are being renegotiated. The protection of refu-
gees from being returned to places where they might be subjected to per-
secution and the prohibition of sending them back without considering
their proposal for asylum is contested. According to the UNHCR (United
Nations High Commissioner for Refugees) and human rights representa-
tives, the question of responsibilities with regard to potential asylum seek-
ers crossing the border region is clear: where a state exercises jurisdiction,
it is responsible for all potential refugees and their asylum claims.5 This is
a point of contention in the border region and between the European
member states. It is unclear where and how to intercept migrants’6 boats
3 M. Garlick, ‘The EU Discussions on Extraterritorial Processing: Solution or Conundrum?’ (2006)
18 IJRL 601–29, at 602.
4 The principle of non-refoulement is set out in the 1951 Convention relating to the Status of Refugees:
‘No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social or political opinion’ (art. 33(1)).
5 UNHCR, ‘Advisory Opinion on the Extraterritorial Application of the Non-Refoulement Obligations
under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’, 26 Jan. 2007, avail-
able at: <http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid-=45f17a1a4&page=search>
(last accessed 25 Jan. 2011); and R. Weinzierl and U. Lisson, Grenzschutz und Menschenrechte – eine europarech-
tliche und seerechtliche Studie (German Institute for Human Rights, 2007), 78.
6 In this article, the term ‘migrant’ will be used as an umbrella term for labour migrants and refu-
gees alike. A clear division between labour migrants and refugees is not, and has never been, possible.
At sea, UNHCR is referring in this regard to ‘mixed migratory movements’ (UNHCR, ‘Addressing
Mixed Migratory Movements: A 10-Point Plan of Action’, 2007).
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540 Silja Klepp
and which state is obliged to examine asylum claims in adherence to inter-
national refugee law. Responsibilities are particularly uncertain where a
state is engaged in joint operations, operations in the territorial waters of
another state, or operations on the high seas.7
Dilemmas also arise when migrants are rescued from shipwrecked boats.
The legal responsibilities to rescue migrants at sea should be clear but the
actions taken vary according to which Search and Rescue (SAR) area the
shipwreck occurs in. Further, enforcing the duty to rescue shipwrecked
migrants has proved problematic. In several cases, controversies regarding
the responsibility of rescuing shipwrecked irregular migrants delayed the
rescue operations.
In the Mediterranean Sea, the policies of border control and the right
of sovereign states to control their territory clash with the claims of a func-
tioning European refugee protection system and with some aspects of the
humanitarian law of the sea. The renegotiation and modification of the
human rights of migrants and refugees, as well as the practices of security
forces at sea, have recently become a key concern.
Processes of decision making and practices in the area of Search and
Rescue will be analyzed in this article by combining the empirical study of
border regions with a legal anthropological perspective. The concept of a
‘multi-sited arena of negotiation’8 has proved useful in analysing the migra-
tion policies of the EU, national Maltese policies and rescue operations
across the Mediterranean Sea. This perspective allows a view of the inter-
connections and power relations between local, national and supranational
actors that acknowledges the complex character of the phenomenon of sea
migration, SAR activities in the Mediterranean Sea and the development
of law. Furthermore, the article sheds light on the difficulty of access to pro-
tection for refugees in the EU and the severe consequences for migrants’
and refugees’ lives that arise at the borders of the EU. In recent years, since
the establishment of the Schengen aquis,9 refugees’ access to EU territory
and to an asylum procedure has become one of the most serious problems
for an effective EU refugee protection system.10
The broad, interdisciplinary perspective on the interpretation and devel-
opment of law covers the relevant actors responsible for the creation and
7 Commission of the European Communities, Communication from the Commission to the
Council, ‘Reinforcing the management of the European Union’s Southern Maritime Borders’ COM
(2006) 733 final, 11.
8 Benda-Beckmann et al., above n. 2, 9.
9 The ‘Schengen acquis’ is formed by the Schengen Agreement 1985 and the Schengen Convention
1990 and the rules adopted on their basis and the related agreements. It lays down the arrangements
and safeguards for implementing freedom of movement and border control at internal and external
EU borders. Since 1999, the Schengen acquis is part of the institutional and legal framework of the EU,
by virtue of a protocol to the Treaty of Amsterdam.
10 European Council on Refugees and Exiles, ‘Defending Refugees’ Access to Protection in Europe’,
available at: <http://www.ecre.org/resources/policy_papers/988> (last accessed 20 Jan. 2010).
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Malta and the Rescue of Unwanted Migrants at Sea
change of law. These include official institutions and law experts, such as
judges, but also security forces in the border region. This inclusive approach
illustrates the important interactions between micro- and macro-level, local
and national interest and the conflicts that influence the implementation and
interpretation of law.11 The approach also covers actors and practices that
seem to be marginal at first glance, but that may have far reaching influences
and effects. This extended perspective on law shows how law is developing in
society and how diverse actors are creating law and practices that are rele-
vant for refugees. Furthermore, it allows the detection of internal logics and
constraints that determine the incidents and developments in the Mediterra-
nean Sea. The logic of interaction and of operation in the sea border region
handling the phenomenon of boat migration will become more accessible in
this way; making it easier to find ways to better protect migrant’s and refu-
gee’s rights and lives at sea.
1.1 Methodology
Triangulating perspectives guarantees an insight into the complex and
highly politically charged subject of boat migrants and SAR activities in
Malta. This is achieved by analysing different policy documents and the
legal framework dealing with sea migration and EU border policies. Fur-
thermore, various actors with different perceptions and viewpoints on sea
migration in the Mediterranean were interviewed. These included Maltese
security officials, members of the Maltese government and employees of
Maltese institutions, employees of NGOs and International Organizations,
migrants and fishermen who rescued boat migrants.
Field research in Malta on the EU in the Mediterranean Sea in rela-
tion to border control and refugee protection was carried out in Sep-
tember and October 2007. Field research had also been conducted in
Libya in October and November 2006, and in Southern Italy from
March to July 2007. Sixteen detailed semi-structured interviews were
conducted in Malta. Insights into the operational aspects of SAR prac-
tices were mainly obtained from interviews with Commanders of the
Armed Forces of Malta (AFM), the director of UNHCR Malta and a
Maltese journalist. These interviews lasted at least one hour and were
recorded. The interviewees consented to publication, with the informa-
tion attributed to them. However, the names of the three Commanders
have been withheld. After introducing the research perspective of this
paper, the situation of migration movements in the Mediterranean Sea
between Libya, Italy and Malta is outlined briefly below.
11 F. von Benda-Beckmann, K. von Benda-Beckmann, ‘Transnationalisation of law, globalisation
and legal pluralism: a legal anthropological perspective’ in C. Antons, V. Gessner (eds.), Globalisation and
resistance: Law reform in Asia since the crisis (2007), 53–80 at 54.
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2. Trends in sea migration across the Mediterranean
Since the early 1990s, the situation of migrants and refugees in the Medi-
terranean has become more difficult. Opportunities to enter the territory
of the EU legally were restricted with the implementation of the Schengen
acquis and the new visa regulations for non-EU nationals in the Mediter-
ranean region. In addition, irregular migration routes across the Medi-
terranean Sea from Africa to Europe were closed by military controls.
Many of the more direct and less dangerous routes, such as between Tu-
nisia and Italy, are now rarely used. Other routes, from West Africa to
the Canary Islands, from Turkey to Greece, and from Libya to Italy, now
constitute the most important southern routes into the EU today.
2.1 The situation between Libya, Italy and Malta
In recent years, border controls have been enhanced by European and
national security forces and new policies have been established, such as
co-operation with North African transition states and countries of
origin.12 In the same time-period, migration routes proved to be very
flexible. Since 2001, most arrivals in the Mediterranean region have been
registered in Sicily, mainly on the small island of Lampedusa. However,
despite these measures, the numbers of arrivals in Italy and Malta in-
creased greatly in 2008, rising to 36,952 arrivals in Italy13 (see table) and
2,704 in Malta. This was the highest number recorded in Malta since the
first arrivals in 2002. In 2006, 1,694 boat migrants were detected by the
AFM, this rose to 1,780 in 2007.14
Table
Landings on Sicily and the minor Sicilian islands
2000 2001 2002 2003 2004 2005 2006 2007 2008
2.782 5.504 18.225 14.017 13.594 22.824 21.400 16.875 36.952
Numbers of the Italian Refugee Council (CIR) and UNHCR
12 P. Cuttitta, ‘The Case of the Italian Southern Sea Borders: Cooperation across the Mediterranean?’
(2008) 17 Migraciones, Documentos CIDOB 46.
13 ‘Sbarchi, allarme del Viminale: “Nel 2009 sono raddoppiati”’, La Repubblica, 24 Sept. 2009.
14 Médecins Sans Frontières, ‘“Not Criminals” Médecins Sans Frontières exposes conditions for
undocumented migrants and asylum seekers in Maltese detention centres’ (2009), available at:
<http://www.msf.org.uk/exposing_appalling_conditions_malta_20090416.news> (last accessed 20
July 2010), 5.
However, it should be noted that, contrary to media coverage of the
phenomenon, sea migration in the Mediterranean accounted for only a
small proportion of the undocumented migrants in Italy, or in other parts
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Malta and the Rescue of Unwanted Migrants at Sea
of Europe. The number of ‘overstayers’, migrants who remain in the
Schengen area after their visa has expired, is much higher.15
Libya, originally only a country of destination, has become an im-
portant transit country for migrants from Sub-Saharan Africa attempting
to reach Europe. Libyan citizens rarely migrate by boat. Many migrants
come from areas of either war or crisis. In 2008, for example, 1,442 of the
2,704 migrants arriving in Malta by boat were Somalians. Most of those
arriving in Malta claim asylum, and nearly 60 per cent acquire a refugee
status, or a subsidiary protection status.16
One factor that is probably important in the rising number of boat mi-
grant deaths is the ever smaller boats used to cross the Mediterranean. In
order to evade border control, fibre glass boats of only 6–7 meters are now
being used. They carry 28–30 persons and usually no member of the crim-
inal network organizing the transfer from Libya accompanies the boat.17
This means that often there is nobody with nautical experience onboard.
The crossing of the Mediterranean Sea under these conditions is there-
fore characterized by high levels of risk. There are crossings that are quite
short and proceed smoothly. However, others end in tragedy, with the
death of all passengers. Small deviations from the route, worsening wea-
ther conditions, or problems with the, often small, motors all increase the
risk for passengers. When boats are in danger, the international system of
SAR should be activated. These procedures are outlined below.
3. The international system of Search and Rescue
The humanitarian law of the sea dealing with Search and Rescue is
covered by various maritime laws, soft laws, and traditions, which are put
into practice by various actors. The regime is monitored and formally
developed by the International Maritime Organization (IMO) of the
United Nations, but the organization has few enforcement capacities. It
is the coastal states that have a leading role in realizing and implementing
the regime: as members of IMO, and as signatories to crucial conven-
tions on the law of the sea and of shipping, the coastal states are obliged
to establish a functioning maritime SAR system. They are responsible for
distress communication and co-ordination in their area of responsibility
(SAR area) and for the rescue of persons in distress at sea around their
coasts. These arrangements should include the establishment, operation
15 Minstero dell’Interno, ‘Primo Rapporto sugli immigrati in Italia’ (2007), available at: <http://www.
interno.it/…/sites/…/0673_Rapporto_immigrazione_BARBAGLI.pdf> (last accessed 10 Aug. 2010).
16 Interview with Mario Friggieri, Director, Maltese Refugee Commission (REFCOM), 3 Oct.
2007, La Valletta.
17 P. Monzini, ‘Il traffico di migranti per mare verso l’Italia. Sviluppi recenti (2004–2008)’ (2008) CeSPI
Working Papers 43, 10.
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and maintenance of such SAR facilities as are deemed practicable and
necessary.18
The international SAR regime relies on the naval security forces or the
coast guards of the coastal states. It also relies on the commitment of all
seamen to the longstanding maritime tradition to rescue people in distress,
and on their inclusion into the SAR system. All vessels at sea, including
private commercial vessels, are part of the SAR system and have a duty to
rescue. The United Nations Convention on the Law of the Sea of 1982
(UNCLOS) codifies this commitment: ‘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 . . . to render assistance to any person
found at sea in danger of being lost . . .’.19
The International Convention on Maritime Search and Rescue (SAR-
Convention) of 1979 requires the state parties to ‘. . . ensure that assistance
be 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’20 and to ‘[. . .] provide for their initial medical or other needs, and
deliver them to a place of safety’.21 Also, the captain of every vessel at sea
has the duty to provide aid to all people in distress without distinction of
status or conditions and, if possible, to inform the responsible SAR author-
ities on the SAR action.22 In Germany, Australia, Norway, the UK and the
United States, ship’s captains can be accused of denial of assistance under
national law if they don’t rescue persons in distress.23
It is clear that the international SAR system and the humanitarian law of
the sea require that assistance be provided to any person in distress at sea.
Nonetheless, political discussions over the responsibilities of the coastal
states to rescue irregular migrants in distress and to disembark them in a
‘place of safety’ can hinder or delay immediate SAR actions. Furthermore,
uncertainties linked to the concept of ‘distress’, which is not clearly defined
in international law,24 leave room for interpretation on whether particular
boat migrants should be rescued or not, as will be discussed below. As the
political atmosphere on the island of Malta is crucial to the behaviour of all
actors involved in issues regarding sea migration, including SAR actions,
some background information on the Maltese situation concerning migrant
landings is needed before discussing SAR questions further.
18 International Convention on the Safety of Life at Sea (SOLAS Convention) (1974), ch. V.
19 United Nations Convention on the Law of the Sea (UNCLOS Convention) (1982), art. 98.
20 SOLAS Convention, above n.18, ch. 2.1.10.
21 Ibid., ch. 1.3.2.
22 Ibid., ch. V.
23 M. A. Harry, ‘Failure to Render Aid’ in US Naval Institute, Proceedings (1990), 65-8, quoted in M.
Pugh, ‘Drowning not Waving: Boat People and Humanitarianism at Sea’ (2004) 17 JRS 50–69.
24 Pugh, ibid., 59.
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Malta and the Rescue of Unwanted Migrants at Sea
4. ‘We could be taken over’ – a small island under
pressure
Although Malta is a small island, its role within the migration system of
the Mediterranean Sea should not be underestimated, especially in SAR
matters. This very densely populated country25 has an enormous SAR
area. The relatively small Maritime Squadron of the AFM, consisting of
300 men and women, has to cover 250,000 km², reaching from the Tu-
nisian coastal waters almost to the Greek island of Crete.26 All migrants
crossing the Mediterranean from the African coast to reach Italy have to
pass through the Maltese SAR area. The reasons for this enormous SAR
area are historical and are also connected to the lucrative income Malta
derives from its Flight Information Region (FIR). The size of the SAR
region is bound to the Maltese FIR. Malta is earning around Є8.23 mil-
lion yearly for air traffic passing over its SAR/FIR region.27
From 2002 to 2008 approximately 10,700 migrants landed on Malta or
were rescued by AFM in the Maltese SAR area. Nearly all migrants land-
ing on Malta intended to reach Italy, but bad weather conditions or other
unforeseen circumstances prevented them from reaching their destination.
In recent years, a heated political atmosphere regarding migrants arriving
by boat has been observed on the island. Most migrants come from crisis
areas, such as Somalia, Sudan and Eritrea, and request asylum in Malta.28
As the spokesperson of the Maltese Ministry of Interior explained in an
interview, ‘people fear that we could be taken over. Because of our size,
people are seeing more of these immigrants’.29 It could be said that a ‘cli-
mate of psychosis’30 has developed on the island regarding the phenom-
enon of irregular migration. Racially motivated crimes, like arson attacks
on the cars of the Jesuit Refugee Service (JRS), or the house of a refugee
advocate, have occurred since 2002, when arrivals in Malta became more
regular.31
The general perspective and policy of the Maltese government in deal-
ing with arriving migrants was explained in an interview with Martin Sci-
cluna, official advisor to the Maltese government on irregular immigration.
He outlined the fears of the Maltese population regarding migration and
25 Malta has approximately 410,000 inhabitants on an area of 316 km².
26 ‘Shrinking Malta’s search and rescue area is “not an option”’, Times of Malta, 26 Apr. 2009. Italy
is applying pressure directly and indirectly.
27 F. Texeire, ‘At the Gate of Fortress Europe: Irregular Immigration and Malta’ (Rennes 2006),
174.
28 Médecins Sans Frontières, above n. 14,
29 Interview with Joe Azzopardi, spokesperson, Ministry of Justice and Internal Affairs, 18 Sept.
2007, La Valletta.
30 Texeire, above n. 27, 10.
31 Interview with Pater Paul Pace, Director, JRS Malta, 23 Sept. 2007, Bikakara.
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546 Silja Klepp
emphasized Malta’s position on the ‘front line’ of European border con-
trol.32 In interviews with representatives of the Maltese government it
became clear that the government will do everything possible to avoid
further migrants arriving.
The Maltese government has dealt with the phenomena on the national
level by introducing a rigorous detention policy. All migrants landing in
Malta, including asylum seekers, must be detained. Detention usually lasts
18 months for adults, and 12 months for the asylum seekers amongst
them.33
On the European level, Malta feels disadvantaged by the Dublin II
Regulation.34 Malta has made several appeals to other member states for
more burden sharing agreements in asylum issues, stressing that the
country cannot handle the situation alone.35 The aim of the Maltese
efforts is to negotiate special terms for the island, due to its size and its
population density, and resettlement for most of the migrants in other EU
countries:
EU burden sharing is extremely important to us. Our voice may be limited but,
you know, we are constantly harping on this. (. . .) We are pressing on two issues.
The first is the revision of the Dublin II convention, which we think is inadequate.
It takes no cognisance of the special circumstances of Malta and possibly of other
front-line states. That means more fairly revised burden sharing. And secondly, if
only the 26 of all member states would take 25 or 30 a year, there would be no
more problems anymore. (. . .)36
A resolution of the European Parliament, from April 2006, came to the
conclusion that the Dublin II Regulation and its effects are not acceptable
for Malta and other border countries. The Parliament therefore invited
the European Commission to revise the Regulation according to the
interests of the Southern and Eastern border countries of the EU,37 but
this has not happened to date.
5. Who is responsible for migrants in distress?
In recent years, one of the most controversial issues in diplomatic rela-
tions between Malta and other countries has been the responsibility for
32 Interview with Martin Scicluna, official advisor on irregular immigration, Maltese government,
2 Oct. 2007, La Valletta.
33 European Parliament resolution on the situation of refugee camps in Malta, EP res. doc. no.
P6_TA (2006) 0136 [for European Parliament Resolutions].
34 The Dublin II Regulation was adopted by the member states of the EU in 2003. The Dublin II
Regulation aims to determine the member state accountable for an asylum claim and provides for the
transfer of an asylum seeker to that member state. Usually, the responsible member state will be the
state through which the asylum seeker first entered the EU.
35 Council of the European Union 5689/09, 23 Jan. 2009.
36 Interview with Martin Scicluna, above n. 32.
37 EP res., above n. 33.
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Malta and the Rescue of Unwanted Migrants at Sea
the disembarkation of migrants rescued in the central Mediterranean
Sea. In 2001, this issue raised difficult questions in another region of the
world, when a diplomatic dispute arose between Norway and Australia.
In August 2001, the Norwegian cargo ship MV Tampa rescued 433
Afghan boat migrants in distress. While heading for the next place of
safety, the Australian Christmas Islands, the vessel was denied entry and
disembarkation of the Afghan refugees was refused by the Australian au-
thorities. The shipwrecked migrants were finally transferred to an Austra-
lian navy vessel and were taken to the Pacific island of Nauru, which is
an independent state. In September 2001, the much contested Border
Protection Act 200138 was passed to create a legal basis for such meas-
ures. The Norwegian government praised the captain of the MV Tampa
for his courage in rescuing persons in distress, while the Australian au-
thorities threatened to take him to court for human trafficking.39 This
incident paved the way for global discussions at the IMO level on clearer
regulations for the disembarkation of migrants rescued by vessels of the
civil shipping industry.40
Similar events occurred several years later in the Mediterranean region:
In July 2006, the Spanish trawler Francisco Catalina rescued fifty-one
migrants from a disabled boat. The trawler headed for Malta to disembark
the passengers. The Maltese army stopped the vessel 60 miles off the coast
claiming that the migrants could not be disembarked on Malta. The Mal-
tese government argued that the migrants had been rescued within the
Libyan SAR area and that they should be taken to Spain. The situation
onboard rapidly became unbearable as hygiene deteriorated and medical
emergencies occurred. After one week of diplomatic quarrels the trawler
headed for Spain, where most of the migrants applied for asylum.41 Similar
incidents have occurred in subsequent years. On 16 April 2009, the cargo
ship Pinar E, registered in Panama by Turkish owners, was refused entry to
Malta with 154 migrants onboard. Malta argued that the migrants were
picked up 41 nautical miles off Lampedusa. The Italian authorities also
refused entry into Italian waters, insisting that the migrants should be
taken to Malta, since it was responsible for this SAR region.42 Italian min-
isters yielded after a four-day stalemate, and allowed the Turkish cargo
ship to enter Italy’s territorial waters.
38 Border Protection (Validation and Enforcement Powers) Act 2001, C2004A00886.
39 M. Giannacopoulos, ‘Tampa: Violence at the Border’ (2005) 15 Social Semiotics 29–42, at 32.
40 Interview with Prof. David Attard, Director, IMO International Maritime Law Institute (IMLI),
Msida, Malta, 25 Sept. The interview was not recorded.
41 Weinzierl, above n. 5, 21.
42 ‘Migrants standoff: PM insists Malta did its duty’, Times of Malta, 20 Apr. 2009.
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5.1 The amendments to SOLAS and SAR
The cases described above involved civil shipping industry seamen taking
shipwrecked migrants onboard and experiencing difficulties in subse-
quently disembarking them. Such circumstances involve a significant loss
of time and money for ship owners and create uncertainties regarding
the consequences of rescue operations. The result is a weakened inter-
national SAR system, which is built on the principle that all individuals
at sea have to assist people in distress. For this reason, the IMO decided
to amend the SAR and SOLAS-Conventions, which are crucial for
the international SAR-system. The amendments were adopted by the
Maritime Safety Committee (MSC) of the IMO on 20 May 2004 and
came into force on 1 July 2006.43 In order to make the responsibilities of
coastal states more transparent, the new rules determine that the state
responsible for a certain SAR-area is also responsible for finding a place
of safety to disembark shipwrecked people. It is now clearly regulated
that each particular SAR-state needs to provide a harbour on its own
territory where people can be safely disembarked or has to negotiate with
other states to find such a harbour.
Where a person can be disembarked, as well as the definition of a place
of safety, are other important aspects. This highlights how closely the hu-
manitarian law of the sea and refugee law are interconnected when it
comes to migration at sea. Usually, the closest port of call might be seen as
a place of safety. However, if boat migrants are potentially in need of
asylum protection, this has to be taken into consideration. In the Guide-
lines on the Treatment of Persons Rescued at Sea (Resolution MSC. 167
(78) (2004)),44 which were adopted together with the SAR- and SOLAS-
amendments, it is stated that: ‘A place of safety is a location where rescue
operations are considered to terminate, and where: the survivors’ safety or
life is no longer threatened; basic human needs (such as food, shelter and
medical needs) can be met; and transportation arrangements can be made
for the survivors’ next or final destination’.45 Furthermore, regarding the
needs of asylum seekers rescued at sea, the guidelines are more concrete:
‘Disembarkation of asylum-seekers and refugees recovered at sea, in terri-
tories where their lives and freedom would be threatened should be
avoided’.46 This passage actually includes the principle of non-refoulement of
the Convention Relating to the Status of Refugees (The Geneva Conven-
tion) of 1951. All boat migrants should have the opportunity to claim
asylum and should not be taken to their home country or a country where
43 MSC res., 153 (78) (2004).
44 MSC res., ‘Guidelines on the Treatment of Persons Rescued at Sea’ 167 (78) (2004).
45 MSC res., ibid., para. 6.12.
46 Ibid., para. 6.17.
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they risk human rights violations. According to practical information given
to the ships’ masters by UNHCR and IMO, in cases where rescued boat
migrants want to claim asylum, they should inform the next Rescue
Coordination Centre responsible for SAR actions, but should also contact
UNHCR for further assistance.47
In disputes over the place of safety and rescued migrants in the
Mediterranean Sea, these matters are of great importance when it comes
to Libya. Libya has no asylum system and violates basic human and refugee
rights.48 Therefore, it cannot be regarded as a place of safety for migrants
crossing the Mediterranean. Unfortunately, many migrants crossing the
Mediterranean from Libya get into difficulties while still in the Libyan
SAR region.
5.2 The Maltese point of view
Although the Amendments to the International Convention for the Safety
of Life at Sea49 aim to facilitate and support the position of seamen who
assist people in distress and to smooth the process of disembarkation,
Malta has not signed these amendments. The main point of resistance is
Malta’s vast SAR-area. The government of the island has always insisted
that rescued migrants should be taken to the nearest safe port from the
place of rescue.50
The Maltese government also differs in its view of determining a place
of safety for the protection of refugees, as various Commanders of the
AFM, the responsible Maltese SAR authorities, stated. Commander One
accused UNHCR of connecting matters of SAR and matters of refugee
policy. He insisted that migrants rescued in Libyan SAR waters or in
Libyan coastal waters should be disembarked in Libya:
UNHCR has said that Libya is not a safe place for disembarkation. So what does
that mean? That anyone saved in Libyan SAR has to be disembarked in Malta as
well? They are not separating the two issues! There is a safe place in terms of SAR
and there is a place of safety in terms of humanitarian law. These are two different
things.51
The Maltese military command and government seem to deny the mutual
relevance of the humanitarian law of the sea and refugee law, which plays
a big role in defining a place of safety. Malta insists on separating refugee
47 UNHCR/IMO, ‘Rescue at Sea, A guide to principles and practice as applied to migrants and
refugees’ (2006), 10.
48 S. Klepp, ‘A Contested Asylum System: The European Union between Refugee Protection and
Border Control in the Mediterranean Sea’ (2010) 12 European Journal of Migration and Law 4.
49 MSC res., above n. 44.
50 Dept. of Information, Malta, ‘Another Amnesty International Report riddled with inaccuracies,
misinformation and glaring omissions’, Press Release 0985 (2010), available at: <http://www.doi.gov.
mt/en/press_releases/2010/05/pr0985.asp> (last accessed 19 July 2010).
51 Interview with Commander One, AFM, 5 Oct. 2007, Headquarters, Luqa Barracks, Malta.
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550 Silja Klepp
law matters and SAR matters in dealing with migrants in distress. As can
be seen, though, in the cases described above, the international SAR
regime is also bound by refugee law. In SAR operations, refugee law must
be taken into account. The commander primarily attacked UNHCR for
their repeated statement that, since there is no asylum system in Libya and
detention conditions violate basic human rights standards, Libya cannot
be considered a place of safety for rescued boat migrants. However, the
disembarkation of migrants in Libya would be a case of refoulement and
would violate the Convention Relating to the Status of Refugees, which is
also the legal basis of Maltese and European refugee law.52 Part six will
discuss how political pressures and circumstances are linked to the Maltese
position of rejecting the SAR amendments.
Anxieties regarding the place of safety and disembarkation of migrants
rescued in the central Mediterranean Sea could hinder rescue actions, espe-
cially by vessels of the civil shipping industry. Another issue, which links
directly to possible fatalities at sea, is the negotiations between Malta and
Italy about the responsibility for rescuing migrants in imminent danger and
distress at sea. Italy regularly conducts SAR actions in the Maltese SAR
area to support Malta. In 2006, the Italian coast guards (Guardia Costiera)
carried out 289 operations in the context of the Search and Rescue of
migrants in distress in the Mediterranean Sea. It is remarkable that 135 of
these operations were realized in the SAR area of Maltese responsibility.53
Nonetheless, discussions about which country should take action can delay
SAR measures in situations where delays can cost lives, especially since
there are no fixed mechanisms to automatically delegate or regulate respon-
sibilities. All actions taken by Italy in the Maltese SAR area are based on
ad-hoc agreements between the SAR forces of the two countries.54 There are
no written agreements or official regulations governing Italian rescue opera-
tions in the Maltese SAR area. In May 2007, an Italian vessel saved twenty-
seven migrants who were clinging to the tuna pens of a Maltese trawler
which did not want to take the migrants onboard. The migrants, who were
found on the border of Libyan and Maltese SAR waters, were rescued after
three days, following a diplomatic controversy between Libya, Malta and
Italy. One man died of dehydration.55
After having discussed legal quarrels and insecurities regarding the dis-
embarkation of boat migrants and the definition of a place of safety, further
52 UNHCR, ‘UNHCR deeply concerned over returns from Italy to Libya’, Press Release, 7 May
2009, available at: <http://www.unhcr.org/4a02d4546.html> (last accessed 19 July 2010).
53 Comando Generale del Corpo delle Capitanerie di Porto, ‘Relazione Attività Antimmigrazione Anno
2006’ (2007), Internal Paper of Guardia Costiera, provided by Commander Calvinare, IMRCC
Rome, 26 June 2007.
54 Interview with Commander Calvinare, Comando Generale del Corpo delle Capitanerie di
Porto, 26 June 2007, Rome.
55 ‘Tre giorni fra le onde le navi non ci aiutavano’, La Repubblica, 28 May 2007.
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facts from 2007 will be presented. They illustrate the problems of the SAR
system in the Mediterranean Sea at the operational level, problems that are
often not apparent to the public.
The Maltese Commanders of the AFM, who are responsible for SAR
actions at sea, seem to be bound by a strong commitment to save migrants
in distress. The three Commanders interviewed all agreed that political
issues should never interfere in SAR actions and that it was a humanitarian
duty founded on and backed up by international law to immediately rescue
shipwrecked persons. As they stated, political aspects should only play a
role after the rescue, once the migrants are safely disembarked.56 Nonethe-
less, political discussions regarding SAR responsibilities, and the heated
atmosphere on the island regarding irregular migration, shape the behav-
iour of the AFM, as this study reveals. Legal loopholes and avoidance
measures are used to sidestep SAR obligations. As a consequence, there
have been incidents where AFM practises impeded or delayed SAR
actions, with serious consequences for migrants, as described below.
5.3 ‘What does SOS mean to them?’
Malta, as a country with a strong shipping tradition, has a small but
highly professional Maritime Squadron. As Commander Two stated dur-
ing an interview, in contrast to other European states, the military in
Malta is also involved in policing. Due to the small size of the country,
the AFM is the sole agency with the resources to carry out complex
rescue operations at sea. Only the AFM has the necessary vessels, heli-
copters and aircrafts at their disposal.57 The Commander explained that
the Maltese navy consists of nine ships and 300 men and women. It is
no surprise that rescuing over 8,000 migrants between 2002 and 200758
represented a great challenge to the Maltese SAR authorities.59 However,
Commander Two underlined that as people of the sea, his troops feel
committed to saving every person in distress, and all irregular migrants.
As argued above, some negative aspects regarding SAR activities and
the high number of fatalities at sea amongst boat migrants are caused by
the large Maltese SAR area and the limited resources of the AFM to cover
their responsibilities. As the spokesperson of the Ministry of Interior stated,
conservative Maltese estimates assume 600 to 700 fatalities per year in the
area of Malta, Italy and Libya.60 When asked for possible explanations for
56 Interview with Commander One, above n. 51. Interview with Commander Two, AFM, 21 Sept.
2007, Headquarters, Luqa Barracks, Malta. Interview with Commander Three, 5 Oct. 2007, Head-
quarters, Maritime Squadron, military harbour, La Valletta.
57 Interview with Commander Two, ibid.
58 Ibid.
59 Ibid.
60 Interview with Joe Azzopardi, above n. 29.
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the fatalities at sea in recent years, Commander Two declared, in a sud-
denly angry tone: ‘Who has told you that there are so many people dying
at sea? So far we have rescued 58 boats! That’s 1,551 people. If the num-
bers carry on like that . . . We had the worst August on record’.61 His out-
burst was surprising, since the number of fatalities at sea are well known to
Maltese civilians, and even more familiar to the navy.
After interviewing Commander Two, further information was sought
about the situation at sea and the work of the AFM from representatives
of other institutions. Neil Falzon, a representative of UNHCR in Malta,
illustrated how the UNHCR of Malta has actually become a ‘maritime
rescue organization’.62 He stated that there would otherwise be a lack of
adequate organizations that could take care of the situation at sea. During
the interview he vividly described which moments he feared most during
his daily work:
Many times we receive calls in the office . . . Often directly from boats approach-
ing. I mean, I pick up the phone and they say UNHCR, UNHCR we are sinking.
Can you imagine my reaction? I hear people shouting in the background and I
panic. Or we receive calls from friends or relatives in Malta saying that they are
arriving. So what do we do? We have a basic procedure: First we try to get all the
information, number of people onboard, gender, age, nationalities and we pass all
the information to the AFM. What we have seen this year particularly is that the
AFM is very reluctant to saying automatically ok, yes, we go and rescue them.
They ask: what kind of problem do they have? I say the engine stopped, and they
say ok, we will look after it. And then I call an hour later, because I call on an
hourly basis. We call the AFM every hour. And they usually tell us, yes they have
made contact with the boat, they didn’t want to be rescued, we will not rescue
them, they are moving steadily north. And then they will leave them.63
The journalist Karl Schembri sees this AFM practice as ‘passing the
buck’ to the Italian navy. He has investigated several reports on SAR
failures by the AFM, describing the operation of the Maltese navy as a
‘calculation’: if there is any chance that a boat will have enough fuel to
reach Italy, the AFM will take the risk of not immediately rescuing the
migrants and will ‘pass the problem on to the Italians’, expecting the
Italian security forces to take care of the arriving boat.
One of the Maltese navy Commanders also described how the AFM
often proceeds when it is informed about a boat entering its SAR area: the
AFM goes out with an offshore vessel. They approach the boat with a
smaller boat and try to communicate with the people onboard. Very often
the migrants want to continue their journey north in order to reach Italy,
61 Interview with Commander Two, above n. 56.
62 Interview with Neil Falzon, UNHCR representative Malta, 26 Sept. 2007, La Valletta.
63 Ibid.
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Malta and the Rescue of Unwanted Migrants at Sea
as Commander One elucidated. In these cases the AFM provide food,
water and sometimes fuel for the boat and let them continue their journey
to Italy. They inform the Italian SAR authorities and accompany the boat
up to Italian SAR waters.64
As described above, the duty of rendering assistance is clear in cases of
distress at sea. The SAR Convention defines the term distress as ‘[a] situ-
ation wherein there is a reasonable certainty that a vessel or a person is
threatened by grave and imminent danger and requires immediate assist-
ance’.65 However, this definition leaves room for interpretations in favour
of non-intervention. Customarily, ship masters are expected to be best
placed to exercise their own judgment and reach an autonomous decision
on rescues.66 Nonetheless, the AFM practice described above can have
fatal consequences for travelling migrants. UNHCR representative Neil
Falzon identified the weak points of this method. He was aware of several
incidents where migrants’ boats had been identified or approached by the
AFM but subsequently appear to have sunk.67 One of these boats was
called the ‘phantom ship’ (barca fantasma) by the Italian media. The inci-
dent of the ‘phantom ship’ occurred in May 2007. A photograph taken by
the AFM, which later reached the press, showed fifty-three men who were
in distress on their small boat in Maltese SAR waters.68 Neil Falzon com-
mented:
The boat vanished. It was the famous boat; there was a photo in the newspapers . . ..
They were bailing out water, they were in evident danger. The Maltese insisted
that there was no SOS. Come on! They have a very restricted interpretation of
what SOS means. . . . I think that they literally want people to say: Yes please save
us! Any other sign that the boat might not make it is a sign for them that they can
help them but not rescue them. I mean the photo was taken by the AFM them-
selves. There was a man with a red T-shirt; there were buckets with which they
were bailing out water. This boat vanished! We have no idea where this boat went.
Our colleagues in Libya went to every single detention centre, everywhere, asking
for that boat, and they didn’t find them. And like that boat, we are sure there are
many, many more.69
Interviewed about the incident of the ‘phantom boat’, Commander One
confirmed that the AFM had taken a photograph of the boat from an
aircraft. However, he refused to believe that this boat was in distress,
explaining AFM’s definition of distress at sea: ‘Distress is the imminent
danger of loss of lives, so if they are sinking, it’s distress. If the boat is
64 Interview with Commander One, above n. 51.
65 SAR, annex, ch. 1, para. 1.3.11, 1979.
66 Pugh, above n. 23, 59.
67 Interview with Neil Falzon, above n. 62.
68 Weinzierl, above n. 5, 19.
69 Interview with Neil Falzon, above n. 62.
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not sinking it’s not in distress. Even if it’s six meters long and has 30
people onboard’.70 He confirmed that the Italian navy has a different
perception; they would rescue every heavily overloaded boat. How should
the AFM react if the migrants onboard don’t want to be rescued by the
Maltese navy? he asked. In contrast to the opinion of the Maltese navy
on the issue, the IMO emphasises that ‘even if a ship’s passengers show
no sign of distress, the suspicion of trafficking and transport in unsafe
conditions only entitles states to take action in accord with humanitarian
principles’.71
Regarding communication with migrants at sea by the AFM, the
Maltese journalist, Karl Schembri, documented a case, in November 2005,
which attracted great attention in the Italian media. The journalist photo-
graphed the official AFM logbook registering the orders given from the
headquarters by radio to rescuers who were sent to track a boat on that
day. The entries in the log book showed that the order - coming from Com-
mander Two, who was coordinating the SAR action from the AFM opera-
tions room at Luqa Headquarters - was to ‘keep at distance’ from the boat,
which was carrying 200 migrants in force six winds on 17 November
2005.72 The Italian SAR forces were informed too late about a boat
approaching their SAR region. The next day, the Maltese and Italian press
published critical reports about the shipwreck of the migrants. Nine of
them had been found dead along the coast of Pozzallo, Sicily, between
twenty and thirty of them were missing, and 177 had been found on land,
among them, five children and three women. In the arguments that fol-
lowed, the Maltese parliamentary secretary stated that the migrants had
not wanted to be rescued by Malta. Karl Schembri disagreed: ‘The day
after in parliament, Tony Abela, the parliamentary secretary who is
responsible for the army, said that the immigrants had refused assistance.
That was an outright lie. The migrants couldn’t refuse assistance because
they were never asked’.73
6. The heated negotiation process
When is a boat in distress and when do passengers have to be saved? The
controversy regarding these questions of when to rescue and when not to
rescue people highlights how heated the negotiation process over irregular
migration, border protection and the humanitarian law of the sea has
become in the Mediterranean Sea. Looking again at the interview with
Commander Two, who became angry when asked about fatalities at sea,
70 Interview with Commander One, above n. 51.
71 IOM, quoted in Pugh, above n. 23, 59.
72 ‘Exclusive: November migrants’ shipwreck tragedy. “Keep at distance” from boat people, rescu-
ers told’, Malta Today, 16 Apr. 2006.
73 Interview with Karl Schembri, 20 Sept. 2007, Malta Today.
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Malta and the Rescue of Unwanted Migrants at Sea
it seems that he was caught between his moral obligation as a seaman, to
help people in distress and to save their lives, and his loyalty to the Mal-
tese government, his employer, which is keen to avoid more landings and
political and legal conflicts at sea. This double bind, between his two
roles of seaman and government representative, motivated his denial of
many migrant deaths at sea.
The complex associations and disagreements between actors involved in
SAR actions regarding irregular migrants at sea become apparent in their
varied notions of what it means to be in distress and their conflicts over the
amendments to the SAR and SOLAS conventions on the disembarkation
of rescued migrants. All political levels and persons involved in the SAR of
boat migrants are linked through a ‘chain of interaction connecting trans-
national, national and local actors’.74 This ‘chain of interaction’ is struc-
tured by power relations and restrictions that can reproduce or change it.
The negotiable and political character of the drafting and implementation
of law becomes evident in this ‘multi-sited arena of negotiation’75 of the
SAR system in the Mediterranean Sea. Internationally valid law is not
simply enforced on the national and local level. The process is much more
complex: on the ground, legal norms are modified and adapted by various
actors pursuing their own agenda, sometimes through informal or even
illegal practices.76 In the Mediterranean Sea, the humanitarian law of the
sea is ignored or modified according to political considerations and the
manoeuvres of the coastal state governments that dominate the situation
at sea. The perspective of the Maltese government, that defines itself as a
‘front-line-state’77 in the battle of the EU against irregular migration, is
influencing the practices of the AFM regarding SAR actions in the Medi-
terranean Sea. Even in cases where people are in immediate danger and
distress at sea, political aspects can delay or even prevent SAR obligations.
The legally binding SAR regulations, which are sustained by a highly
normative compliance amongst seamen regarding SAR measures as a
‘longstanding maritime tradition’,78 are put in question by the explosive
political nature of sea migration in the Mediterranean. They function as
an ‘open text’,79 where global, European, national and local perceptions
merge: ‘both as resources and as constraints’.80
74 Benda-Beckmann et al., above n. 2, 9.
75 Ibid.
76 S. E. Merry, ‘Human Rights and Global Legal Pluralism: Reciprocity and Disjuncture’ in Benda-
Beckmann et al., above n. 2, 215–32, at 224.
77 Interview with Martin Scicluna, above n. 32.
78 MSC res., above n. 44, annex 34.
79 S. E. Merry, ‘Legal Pluralism and Transnational Culture: The Kaho’okolokolonui Kanaka Maoli
Tibunal, Hawai’i, 1993’ in: R. A. Wilson (ed.), Human Rights, Culture and Context: Anthropological Perspectives
(1997), 28–48, at 30.
80 Ibid., 45.
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556 Silja Klepp
Under the pressure of a politically heated atmosphere and realities at
sea, the AFM commanders have created their own mechanisms. On the
one hand, these are inner psychological mechanisms, which bring their
own self-image as seamen, ready to rescue every person in distress, in line
with the desires of their employers. On the other hand, outward informal
mechanisms have been developed to handle the demands of the oversized
Maltese SAR area and the paradoxical situation at sea – the duty to rescue
unwanted migrants in distress.81 The mechanisms created by security
forces on the ground can be decisive for the future interpretation and de-
velopment of this legal ‘open text’.82 Between the inward and outward
tensions of the local actors, new practices may be developed which shape
the situation at sea and future (legal) processes. At present, there are no
political winners. Apart from the many people dying at sea, the over-
stretched security forces themselves are also victims: they cannot fully per-
form the task of saving the lives of migrants in distress, for they are caught
in a double bind.
Whether there will be a more effective SAR regime towards migrants in
distress is difficult to predict. The criminally liable misconduct of security
forces against boat migrants at sea is difficult to prove, incidents which
result in fatalities are rarely sanctioned. Malta does not seem willing to sign
the SAR and SOLAS amendments in the near future. Nonetheless, polit-
ical pressure on SAR forces should not be seen as having exclusively nega-
tive effects; on the contrary, rescue forces should receive support and
recognition from public institutions and politicians for performing their
life-saving duty. The breaches of SAR at sea described in this article should
not be read as a purely negative assessment of the AFM. Instead, an
insight into the inner logics of the border region create possibilities for
responsible and rational actions by politicians, migrants, civil society and
security forces alike.83
Furthermore, Malta alone cannot be blamed for the legal and humani-
tarian transgressions at sea. Other EU member states, which do not seem
willing to show more solidarity with Malta and other Mediterranean States
to find appropriate burden sharing regulations, must also be held to
account. A core issue is the Dublin II Regulation, which is subject to criti-
cism from several Mediterranean countries, such as Cyprus, Greece, Italy
and Malta, and which should be revised. In summer 2007, Malta was crit-
icised several times by other EU member states and EU institutions for its
hesitant rescue operations and its refusal to accept the disembarkation of
81 M. Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (1980), XIII.
82 Merry, above n. 79, 30.
83 See also, P. Bourdieu et al., Das Elend der Welt.Zeugnisse und Diagnosen alltäglichen Leidens an der Gesell-
schaft (1997), 213.
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Malta and the Rescue of Unwanted Migrants at Sea
rescued migrants. However, probably due to the fact that incidents at sea
are also a European responsibility, because of the lack of burden sharing
mechanisms, the pressure on Malta from other member states to fulfil its
duty to rescue migrants in distress without restriction is low. Most certainly,
it will be other aspects that will be strengthened by the European migration
and border policy in the Mediterranean Sea, namely, further extension of
the border controls, co-operation with bordering countries, such as Libya,
and the restriction of embarkations and landings of boat migrants on the
territory of the EU.
7. Epilogue
The Italian security forces rescued five Eritrean nationals, three men and
two women, close to Lampedusa on 20 August 2009. They had been at
sea for three weeks. Seventy-five of their comrades had died of dehydra-
tion and starvation. At least ten commercial ships had passed by without
rescuing them, the migrants later told the Italian security forces. The
Italian Ministry of Interior accused the Maltese navy of seeing the boat
two days before the Italians discovered them, and of providing water and
groceries to the migrants but not rescuing them. The spokesperson for
the AFM, Ivan Consiglio, stated that the AFM had found the boat and
the migrants ‘in very good shape’ and that the migrants had refused as-
sistance from the AFM.84 In August 2009, EU-Commissioner for Human
Rights, Thomas Hammarberg, officially asked the Italian and Maltese
authorities for clarifications regarding the incident. After these clarifica-
tions were delayed, he published two letters addressed to the Ministers
of Interior of both countries, in December 2009, underlining that the
responsibility to rescue persons at sea appeared to have been neglected.85
In autumn 2009, the prosecuting authorities of Agrigento, Sicily, pressed
for charges against unknown persons on the basis of non-assistance of a
person in danger. However, none of the efforts by the Commissioner led
to further statements from the authorities, and no trial had been initiated
by the end of 2010.
84 ‘Intercettati dai maltesi e lasciati andare: l’ultima illusione nel viaggio dell’orrore’, La Repubblica, 22 Aug.
2009:
85 Comm DH (2009) 40, CommDH (2009) 41.
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