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SEARCH AND RESCUE AT SEA, NON-GOVERNMENTAL ORGANISATIONS AND THE PRINCIPLES OF THE EU'S EXTERNAL ACTION

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  • Université Sorbonne Paris Nord
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123
10. SEARCH AND RESCUE AT
SEA, NON-GOVERNMENTAL
ORGANISATIONS AND THE
PRINCIPLES OF THE EU’S
EXTERNAL ACTION
Paolo Cuttitta
1. Introduction
In recent years, humanitarian actors supporting migrants have
been increasingly harassed, discredited and criminalised by public
authorities in dierent EU countries and regions, both on land and
at sea, at external as well as internal Schengen borders (Bellezza
and Calandrino, 2017; Carrera, Allsopp and Vosyliūtė, 2018;
Fekete, Webber and Edmond-Pettitt, 2017; 2019). is Chapter
focuses on non-governmental organisations (NGOs) engaged in
search and rescue (SAR) in the Central Mediterranean. Between
the end of 2016 and early 2017, the EU Border agency Frontex rst
suggested that NGOs may be used by smugglers (Robinson, 2016),
then claimed they encourage smugglers while not cooperating
with the police (Bewarder and Walter, 2017). Following this, sim-
ilar allegations were made by Italian prosecutors (Reuters, 2017) as
well as policymakers from both government (Grignetti, 2017) and
opposition (Agi, 2017).
Table of Contents
124 PART II - BORDERS AND ASYLUM
Since then, NGO sta have been prosecuted in Italy (and then
Malta) not only for facilitating irregular immigration but also for a
range of administrative issues, while NGO vessels and reconnais-
sance airplanes have been seized or otherwise prevented from car-
rying out SAR missions (Fra, 2018; 2019). Other NGO ships have
been hampered aer they rescued people at sea, as permission to
disembark was denied or delayed. Finally, NGO assets have been
gradually excluded from SAR operations coordinated by the mar-
itime rescue coordination centres (MRCCs) of the coastal states
concerned. is is all aimed at facilitating forced returns from
international waters by the Libyan authorities and preventing
people from reaching EU soil. ese developments pose serious
challenges to the principles that should guide the EU’s external
action.
2. Excluding NGO Vessels From SAR Operations
Aer a period (from 2014, when the rst NGO rescue mission
took place, to 2016) of eective cooperation with SAR NGOs (Cut-
titta, 2018c; Stierl, 2018), the Italian MRCC (I-MRCC), which is
managed by the Coast Guard, gradually changed its policy towards
NGO vessels (Cuttitta, 2018a; 2018b). While international law
requires state authorities, whenever there is a distress case, to avail
themselves of any available asset to the maximum extent possible
(Papanicolopulu, 2017), I-MRCC started excluding NGO vessels
from SAR operations.
As a rst step, when NGO ships were the closest to a distress
case, I-MRCC started asking them to intervene but refrain from
taking people onboard, and only monitor the situation until
Libyan patrol boats would arrive and forcibly return the passen-
gers to Libya (Cuttitta, 2017). us, NGOs were obliged to de
facto passively support deportations. By doing this, I-MRCC also
distanced itself from its previous, extensive interpretation of the
notion of ‘distress’, whereby a situation of ‘distress’ is what triggers
the legal obligation to immediately rescue people (Cuttitta, 2018a).
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SEARCH AND RESCUE AT SEA, NON-GOVERNMENTAL ORGANISATIONS AND THE PRINCIPLES OF THE
EU’S EXTERNAL ACTION - P. Cuttitta
e second step was not to involve NGO ships in SAR opera-
tions anymore. Maltese and Libyan authorities also followed this
policy. Since the contested establishment of a Libyan SAR region
(Santer, 2019) in 2018, European and North African coast guards
mostly: a) do no longer entrust NGO vessels with rescue duties; b)
do not even send out NAVTEX messages, that are received auto-
matically by all vessels transiting in the relevant area (Mensurati,
2018; Nicolosi, 2019; Tonacci, 2018). NGO vessels are involved
only as a last resort. is is aimed at making sure that the Libyan
authorities are given priority in their purported SAR region, and
can carry out interdictions disguised as rescues (Moreno-Lax,
2017). Indeed, international law requires that a rescue operation
ends with the disembarkation in a place of safety, that is “a place
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” (Imo, 2004). Libya is not such a place, since
migrants are systematically subjected to violence and abuses there,
even from public authorities (United Nations, 2019).
3. Facilitating Pull-Backs to Libya
While not involving NGO vessels opens up the question of the
responsibility for any failed rescue that should result from this
policy, the practice of supporting pull-backs (Markard, 2016;
Pijnenburg, 2018) from international waters to Libya opens up the
question of the indirect or even direct legal responsibility of Italy
or the EU for these actions. e fact that Italy (Palm, 2017) and
the EU (European Commission, s.d.) provide the authorities of the
Libyan government of national accord (GNA) with assets as well
as training programmes for their ocials (Political and Security
Committee, 2016), knowing that this will result in forced collective
returns, suggests that an indirect responsibility may arise for both
Italy and the EU for assisting Libya in committing an internation-
ally wrongful act (Giuré, 2013; Markard, 2016).
index
126 PART II - BORDERS AND ASYLUM
Direct responsibility may arise for pull-backs carried out by
Libyan patrol boats if these take place under the actual coordina-
tion of the Italian authorities. Several circumstances suggest that
this may be the case. One is the fact that no Libyan MRCC exists
yet: the EU-funded project supporting its establishment is still at
an early stage (European Parliament, 2019). In the absence of an
eective Libyan MRCC, a Libyan SAR region arguably only exists
potentially, and coordination of pull-backs seem to be actively
supported, if not directly coordinated, by the Italian navy ships
that have been anchored at the port of Tripoli since August 2017
(Ministero della difesa, 2019; Senato della Repubblica, 2017),
as found by an Italian court (Tribunale di Catania, 2018). ese
issues are currently under the scrutiny of the European Court of
Human Rights (ECtHR, 2019; Pijnenburg, 2018) as well as the
International Criminal Court (Bowcott, 2019; Shatz and Branco,
2019). As regards Maltese authorities, these seem to have coordi-
nated pull-backs to Libya even directly: through their MRCC and
from the Maltese SAR region (Lüdke, 2019).
4. Struggles About Disembarkation
When NGO ships manage to rescue people and take them onboard,
public authorities pose increasing obstacles to disembarkation.
Disembarkation is oen denied or delayed (e.g. by arguing that
other states are responsible), and followed by legal proceedings,
also including the seizure of the vessel.
Italy decided, rst, to disengage from responsibility to coor-
dinate SAR, and identify a place of safety, for events occurring
outside its SAR region, thus involving the other Mediterranean
coastal states: the rst such case was that of the Golfo Azzurro,
which had rescued people in the Maltese SAR region in August
2017 (e Maritime Executive, 2017). Since then, when it was
brought into play, Malta oen denied permission to dock and dis-
embark, arguing that other principles, such as that of the closest
port of safety (mostly Lampedusa or Tunisia), should apply.
127
SEARCH AND RESCUE AT SEA, NON-GOVERNMENTAL ORGANISATIONS AND THE PRINCIPLES OF THE
EU’S EXTERNAL ACTION - P. Cuttitta
More generally, both Italy and Malta have oen accepted dis-
embarkation only aer other countries had formally committed to
relocate part of the rescued people to their territories (Carabott,
2019; La Repubblica, 2019a; Ziniti, 2019b). is took oen weeks,
during which people were forced to wait at sea, and NGO vessels
were unable or only partly able to carry out other rescues.
e compliance of such practice with international law is ques-
tionable. According to the International convention for the safety
of life at sea, whenever a rescue is carried out by a private ship,
shipmasters should be released from their obligations with min-
imum further deviation from the ships’ intended voyage.1
Italy and Malta have also used the ag argument to skip
responsibility. us, they managed to involve the authorities of
ag states in their oensive against SAR NGOs. is issue was
rst posed only in theory, in June 2017: the Gentiloni government
suggested that failure from the EU to provide more support may
result in foreign agged vessels to be denied permission to dock
at Italian ports (Ansa, 2017). Similar threats were posed again
in March 2018, towards the Spanish-agged NGO ship Open
Arms (Guardia Costiera, 2018), and two months later, towards
the UK-agged Astral (Brera, 2018). e following government
(the rst Conti government) put the idea into practice. In August
2018, it said the UK was responsible for the disembarkation of 141
people rescued by the Aquarius, the ship bearing a Gibraltar ag
and managed by SOS Méditerranée and Médecins Sans Frontières
(MSF). e permission to bear the Gibraltar ag was immediately
revoked (Yeung, 2018). Short aer the vessel was re-registered
with Panama, it was de-agged by the Panama authorities as well
(Weaver, 2018). According to the NGOs, Panama was pressured by
1 Signicantly, permission to dock was also denied to commercial ships which were
only accidentally involved in rescue operations. Italy gave the example with the Danish
Alexander Maersk and the Italian Vos alassa, which were both forced to wait for days
before they could dock or transfer the rescued to other vessels in 2018 (Rainews, 2018;
Lopapa, 2018). e supply vessel Sarost V was even refused authorisation to dock by
Malta aer rescuing 40 people in the Maltese SAR region, under Maltese coordina-
tion, and its ag state Tunisia kept it waiting for weeks before allowing disembarkation
(Santer, 2018). e Tunisian authorities did the same with the Egyptian Maridive 601
in 2019 (Tondo and Stierl, 2019).
128 PART II - BORDERS AND ASYLUM
the Italian government (Kelly, 2018). SOS Méditerranée and MSF
resumed SAR operations with a new ship ying a Norwegian ag
in 2019.
Similarly, the NGO Sea Eye had to charter a new ship under a
new ag aer Italy asked the Netherlands to verify the registration
of its Seefuchs, as well as of another NGO ship, the Lifeline. e
Dutch authorities replied that the boats were insuciently regis-
tered for them to bear the Dutch ag. Both ships were blocked
in Malta. A trial for ‘insucient registration’ against the Lifeline
and its captain is still going on (Mission Lifeline, 2019). e Neth-
erlands also changed its legislation by introducing new require-
ments for rescue ships, only to block the Dutch-agged Sea-Watch
3 (Sea-Watch, 2019) aer the Italian government claimed that
the people rescued by the ship of the German NGO Sea-Watch
should disembark either in the Netherlands or in Germany, in Jan-
uary 2019. However, a Dutch court found that the blockage was
unlawful, and the Sea-Watch 3 could resume SAR operations aer
a month. e ag issue was raised again by the Italian government
against the Sea Eyes Alan Kurdi in April (La Repubblica, 2019c)
and the Sea-Watch 3 in June (La Repubblica, 2019b). In August
2019, the Italian government called for the Spanish government
to de-ag the Open Arms, the rescue vessel of the Spanish NGO
Proactiva Open Arms (Ziniti, 2019a).
In sum, NGO assets have been systematically blocked not only
aer rescue operations but even preventively. More specically,
EU countries such as Malta and Spain have not only denied disem-
barkation: they have also denied NGOs the authorisation to leave
their ports to carry out SAR missions (Abellán, 2019). Malta (Sea-
Watch, 2018; Ziniti, 2018) and Italy (Mensurati and Tonacci, 2019)
also blocked the airplanes used by NGOs to spot vessels in distress.
5. Legal Prosecutions
As of 1 June 2019, the European Union Agency for Fundamental
Rights counted 5 ongoing and 8 past legal proceedings (in Italy
129
SEARCH AND RESCUE AT SEA, NON-GOVERNMENTAL ORGANISATIONS AND THE PRINCIPLES OF THE
EU’S EXTERNAL ACTION - P. Cuttitta
and Malta alone) against NGO assets engaged in SAR, while sim-
ilar proceedings have taken place in Greece as well (Fra, 2019).
e rst to be targeted was the NGO Jugend Rettet, whose ship
Iuventa was seized in August 2017. While accusations seem to
rest on weak foundations (Forensic Oceanography and Forensic
Architecture, 2018), ten crew members are currently being prose-
cuted by the Italian judiciary for aiding illegal immigration.
In March 2018, the Open Arms refused to hand over to Libyan
authorities the people rescued in the would-be Libyan SAR
region, as requested by I-MRCC. For this reason, it was seized by
the Italian authorities aer it was eventually allowed to dock in
Pozzallo (Ruta, 2018). More prosecutions followed in 2018 and
2019. Arguably, their proliferation was partly facilitated by the
2002 EU Facilitators’ package (Bellezza and Calandrino, 2017;
Carrera, Vosyliūtė, Smialowski, Allsopp and Sanchez, 2018; Fra,
2018; Vosyliūtė and Conte, 2018). Unlike the Migrant Smuggling
Protocol supplementing the United Nations Convention against
Transnational Organized Crime, the EU package does not include
a clause exempting those who do not aid for prot but for other
(e.g. humanitarian) reasons, thus leaving it to the member states to
decide whether to adopt such a humanitarian clause or not.
In Italy, however, since no evidence of collusion with smugglers
has ever emerged, the fact that the accused acted in the accom-
plishment of the higher legal obligation to rescue has always made
sure that legal proceedings were discontinued, even in the absence
of a humanitarian clause (Masera, 2018). On the other hand, the
very fact that NGOs are investigated and prosecuted contributes
to criminalising and discrediting them, which results in a decrease
in donations (Cusumano and Pattison, 2018), while boat seizures
result in a strong reduction of the overall SAR capacity in the Med-
iterranean.
A role in the process of criminalisation was also played by
the ‘code of conduct’, a private agreement imposed by the Italian
government on NGO ships in 2017. e code has little juridical
130 PART II - BORDERS AND ASYLUM
relevance, if at all, since it cannot prevail over national and inter-
national law (Cusumano, 2019; Mussi, 2017). However, together
with the increasing aggressions from Libyan patrol boats (Cut-
titta, 2018a; 2018c), it contributed to discouraging several NGOs,
which decided to leave the Mediterranean, while the seizure of the
Iuventa appeared to be a retaliation act of the Italian judiciary, as it
occurred the day aer Jugend Rettet announced it would not sign
the code (Dearden, 2017). Some of the provisions contained in the
code seem to have inspired the decree of the Libyan GNA of 14
September 2019 regulating SAR activities in the would-be Libyan
SAR region (Arci, 2019). Few weeks aer the decree was issued,
a Libyan militia red warning shots and interfered with a rescue
operation carried out by the Alan Kurdi (Deutsche Welle, 2019).
6. Separation of Powers
In March 2019, the former Italian interior minister Matteo Sal-
vini publicly called on the judicial authorities to arrest the Mare
Jonios crew when the vessel of the NGO Mediterranea entered
the Lampedusa harbour (Ansa, 2019). is was just one of sev-
eral interferences from the executive and legislative over the judi-
ciary. Prosecutors were not only pressured to investigate NGOs,
but they were also openly intimidated when they started inves-
tigating Salvini for kidnapping, as migrants were forced to wait
onboard a navy ship in Italian waters before they were allowed to
dock and disembark in August 2018. A member of the Parliament
publicly threatened to “come and pick [them] up if [they] touch
the Captain2 (La Repubblica, 2018). In May 2019, Salvini himself
commented on the decision of Agrigentos public prosecutor to
allow disembarkation of the migrants rescued by an NGO vessel
by declaring that “if this public prosecutor wants to serve as a min-
ister of interior, he should run for elections” (Il Messaggero, 2019).
Incidentally, attempts from Italian politicians to pressure the
judiciary were not new in the eld of migration (see Bellezza and
2 Salvini is called “il Capitano” by his followers.
131
SEARCH AND RESCUE AT SEA, NON-GOVERNMENTAL ORGANISATIONS AND THE PRINCIPLES OF THE
EU’S EXTERNAL ACTION - P. Cuttitta
Calandrino, 2017, p. 250, on the pressure to arrest boat drivers as
smugglers even if they were just migrants like the other passen-
gers), which further attests to an overheated climate surrounding
migration which seriously risks eroding the fundamental princi-
ples of the separation of powers and the independence of the judi-
ciary, which are cornerstones of the rule of law.
7. Solidarity
Struggles about which country should take responsibility for the
rescued and their disembarkation clearly show a lack of solidarity
among the states concerned. is also led the EU to conceive
the plan of regional disembarkation platforms, with people res-
cued in international waters to be disembarked in third countries
(Ecre, 2018). e idea, which was rejected by African countries
(Boey, 2019), was a further attempt to circumvent legal obliga-
tions towards migrants. Like outsourced forced returns to Libya,
it would have been arguably in breach of international law, since
countries such as Tunisia and Egypt are, like Libya, not safe.
Since 2018, people rescued by NGOs are mostly allowed dis-
embarkation in Italy or Malta only aer their partial redistribu-
tion has been accepted by other EU countries. us, an informal
relocation mechanism has been created, but only on a voluntary
basis, and with only little success, since most governments do
not keep their promises (Lopapa, 2019; Rt, 2019). Even the joint
declaration agreed upon by the governments of France, Germany,
Italy and Malta on 23 September 2019 (Valletta Declaration, 2019)
only leaves it to the states to agree on relocation arrangements
(Carrera and Cortinovis 2019a; 2019b). Importantly, the Valletta
Declaration further states that the EU should enhance its “aerial
surveillance in the southern Mediterranean in order to ensure
that migrant boats are detected early with a view to ght migrant
smuggling networks, human tracking and related criminal
activity and minimising the risk of loss of life at sea, whereby early
detection means higher chances to inform Libyan authorities in
132 PART II - BORDERS AND ASYLUM
time for them to carry out pull-backs. It seems that the only way
not to put solidarity among member states under strain is to deny
any form of solidarity towards individuals who try to exercise their
rights to mobility and asylum.
8. Conclusion
e externalisation of migration and border controls to inter-
national waters is part of the EUs external action. According to
article 21 of the Treaty on European Union, “[t]he Union’s action
on the international scene shall be guided by the principles which
have inspired its own creation, development and enlargement, and
which it seeks to advance in the wider world: democracy, the rule
of law, the universality and indivisibility of human rights and fun-
damental freedoms, respect for human dignity, the principles of
equality and solidarity, and respect for the principles of the United
Nations Charter and international law”.
e developments outlined in this Chapter show that these
principles are being openly deed by public authorities. e rule
of law is challenged by the increasing interferences from the exec-
utive and legislative towards the judicial branch. Forced returns
from international waters pose serious challenges to the princi-
ples of international law. ‘Indivisible’ human rights and funda-
mental freedoms are in fact divided into two categories: the more
deserving, such as the right not to be exposed to the risk of death
or abuses and violence by smugglers, and the less deserving, such
as the right to leave any country, including ones own (Markard,
2016), the right to asylum and the right not to be subjected to
abuses and violence by state authorities.
Solidarity among member states, far from serving as a guiding
principle, is downgraded to an option, while solidarity among
individuals is systematically discouraged. Finally, the human dig-
nity of those kept hostages for weeks onboard rescue ships is dis-
regarded, and even more so that of the people pushed back against
their will to North Africa on behalf of Europe, and subjected there
to inhuman treatments and violence.
133
SEARCH AND RESCUE AT SEA, NON-GOVERNMENTAL ORGANISATIONS AND THE PRINCIPLES OF THE
EU’S EXTERNAL ACTION - P. Cuttitta
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Table of Contents
... Despite some organizations' stronger commitment to neutrality and independence, all NGOs cooperated effectively with the Italian MRCC, as repeatedly acknowledged by Italian Coast Guard and Navy officers (Cuttitta 2020;Cusumano 2019c). In fact, the SAR operations conducted by NGOs between 2014 and 2017 were all coordinated and for the most part initiated by the Italian MRCC, which gathered distress calls and urged ships in the vicinity to conduct rescue operations in accordance with the international law of the sea. ...
... In fact, the SAR operations conducted by NGOs between 2014 and 2017 were all coordinated and for the most part initiated by the Italian MRCC, which gathered distress calls and urged ships in the vicinity to conduct rescue operations in accordance with the international law of the sea. It was only in 2018-when the Italian government stopped accepting responsibility for SAR operations off the coast of Libya and began denying NGOs entry to its ports-that cooperation between NGOs and the MRCC faltered (Cuttitta 2020). Before then, NGOs were seen by the Italian MRCC as a multiplier of European rescue capabilities, stretched thin by the end of operation Mare Nostrum (Cusumano 2019c). ...
... In the same period, two other small charities-Mediterranea Saving Humans and Salvamento Marítimo Humanitario-also started SAR missions. Notwithstanding these new developments, far fewer NGOs are now present at sea than in 2016 and 2017 (Cuttitta 2020;Del Valle 2019). In September 2019, the formation of a new cabinet slightly softened but did not substantially change Italy's approach to non-governmental maritime rescue. ...
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