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Saving lives at sea?

As has been noted, Malta’s search and rescue area is very large, stretching across the entire central portion of the Mediterranean Sea. Moreover, Malta’s assets are very limited: the maritime squadron of the Armed Forces of Malta has a total of only three offshore patrol vessels for controlling this vast area. While in many parts of the Mediterranean, there has been a general trend towards the ‘militarisation’ of immigration controls in the form of the deployment of a growing amount of military-style hardware to block the unwanted migratory flows from the south (Lutterbeck 2006), in the case of Malta it has rather been the country’s limited resources as well as its unwillingness or at least reluctance to more effectively monitor the seas which has often put migrants’ lives at risk.

Malta’s informal policy before joining the EU was to help migrants in distress and then to allow them to continue on to Italy, but EU membership brought with it new obligations to bring these migrants ashore and allow them access to the asylum system on the island rather than facilitating their passage to Italy. While the Maltese government has pointed to its large SAR area as another indication of the heavy burden the country faces in controlling irregular migration, it has at the same time refused to consider suggestions by some Maltese and Italian politicians that the area should be reduced. This is primarily because the SAR area corresponds with Malta’s Flight Information Area, from which the country earns over €8 million in air traffic control fees each year (Grech & Sansone 2009).

Within the SAR area, Malta has maintained that its responsibilities lie in the coordination of rescue missions, and that migrants who are saved should be disembarked at the nearest safe port. This is more often than not the Italian island of Lampedusa, which lies inside Malta’s SAR area between Malta and Tunisia. On the other hand, the Italians have argued that Malta should take in all migrants rescued within its search and rescue area. Tensions between Malta and Italy over their respective responsibilities in accepting seaborne migrants have thus periodically erupted. Such conflicts have often resulted in migrants being stranded at sea, while Italy and Malta have argued over who is responsible for the rescue and disembarkation. One such case was the so-called tuna pen incident in 2007, which momentarily caught the attention of Europe. The incident involved 27 men who clambered onto the small walkway surrounding a tuna pen being pulled by a Maltese trawler, after their own boat began to sink. The crew refused to allow the migrants aboard, but informed the Maltese authorities. They in turn maintained that responsibility lay either with Libya, from where the migrants had departed, or with Italy because Lampedusa was the nearest safe port. The disagreement over responsibility lasted for three days, during which time the migrants remained stranded on the tuna pen according to their own reports. Italy finally agreed that the migrants be transferred to Lampedusa (Italian Refugee Council 2007; Popham 2007; Malta 2007).

Similar incidents have occurred: in 2006, when a Spanish trawler rescued 51 migrants, who remained stranded onboard for five days while Spain, Malta and Libya negotiated responsibility for their disembarkation (UNHCR 2006b); in 2009, when a Turkish cargo ship, the Pinar, rescued migrants in Malta’s search and rescue area (Ministry of Foreign Affairs 2009); in 2011, when a Spanish frigate under NATO control rescued 100 migrants at sea (‘Update 5’ 2011); and in 2013 when a tanker rescued 102 migrants at sea close to the Libyan coast (BBC 2013). These incidents culminated in calls for the clarification of responsibility at sea. As a result, the renegotiation of the EU’s Schengen Borders Code in April 2010 included a provision in Article 2 that noted:

[w]ithout prejudice to the responsibility of the Rescue Coordination Centre, and unless otherwise specified in the operational plan, priority should be given to disembarkation in the third country from where the ship carrying the persons departed or through the territorial waters or search and rescue region of which that ship transited and if this is not possible, priority should be given to disembarkation in the host Member State unless it is necessary to act otherwise to ensure the safety of these persons (EU Council 2010a).

The legislation thus made Malta’s preference for disembarkation at the nearest safe port an exception rather than the rule, reinforcing Italy’s position on the subject. As a result, Malta refused to continue to host Frontex’s mission in the central Mediterranean in 2010 (e.g. Xuereb 2010). More significantly, one Maltese member of the European Parliament, Simon Busuttil, spearheaded a move to refer the amendment of the Schengen Borders Code to the European Court of Justice on grounds that the amendment exceeded the initial scope of the legislation and that the Commission had not followed the appropriate procedures in passing the legislation. The case was ultimately successful and the amendment nullified (ECRE 2012; EU 2010: 34-35). Despite this temporary victory, a new amendment in 2014 reintroduced the language seen above and the obligation to disembark rescued people in the host member state. Nevertheless, it also more explicitly prioritises disembarkation in the ‘country from which the vessel is assumed to have disembarked’ (EU 2014).

A less publicly discussed but equally crucial factor in saving migrants’ lives at sea is the role of Maltese (and other) fishermen in this area. Given the much larger presence of fishing vessels at sea, migrants are often spotted or encountered first by fishermen rather than state-run vessels. However, in the current situation there are strong disincentives for fishermen and commercial vessels to come to the rescue of migrants at sea. As the authorities are often slow to respond to alerts sent by fishing boats or migrants’ distress calls, and governments spend time wrangling over their respective responsibilities, the fishermen on site are often left to care for these migrants for lengthy periods of time. For the fishermen, this not only entails a considerable loss of revenue, as they are unable to pursue their work, but there are also safety concerns involved as they fear being overwhelmed by the large numbers of migrants which typically travel in a boat. As a consequence, fishermen are generally very reluctant to rescue migrants in situations of distress, and admit that, when they encounter migrants at sea, they prefer to leave the area as quickly as possible rather than assist the migrants (author interviews conducted with Maltese fishermen, Malta, 2011).

This at least partially explains the large death toll of migrants drowning each year in the Mediterranean, deaths that are often avoidable. According to a report by the Council of Europe, more than 1,500 migrants lost their lives at sea in 2011 alone (Council of Europe 2012). The report highlights that this loss of life occurred during a time when there was a significant presence of military ships in the Central Mediterranean due to the conflict in Libya, which too often failed to respond to distress calls by seaborne migrants. Moreover, the report reminds states of the judgement made in March 2012 by the European Court of Human Rights, which found that Italy’s aforementioned ‘push-back’ policy violated the principle of non-refoulement. The case reinforced the wider legal casework that has argued that states’ obligations to human rights do not stop at their territorial borders (c.f. European Court of Human Rights 2012, 2011).

Despite the clear legal judgement on returning migrants and refugees to Libya, the newly elected, Maltese Prime Minister, Joseph Muscat, went one step further in July 2013. After the arrival of 102 migrants who had departed from Libya by boat, Muscat threatened to immediately return the adult male passengers, 45 Somalis, to Libya without allowing them access to asylum procedures. In this vein, the government booked tickets on Air Malta to return the Somalis to Tripoli. Outrage at the disregard for the principle of non-refoulement and the illegality of the decision prompted NGOs on the island to submit an application to the European Court of Human Rights for an interim order to suspend the returns. The application was successful and the returns were halted. In the aftermath, Muscat and his government claimed the decision was made in order to send a message to the European Union that Malta would not accept more migrant arrivals without further support form the EU (ECRE 2013).

Since the European Court’s judgement, the number of migrant deaths in the Mediterranean has only continued to increase. For instance, in 2014, over 3,000 migrants and refugees died at sea, accounting for 75 per cent of all migrant deaths worldwide. In the Central Mediterranean, 2014 was one of the deadliest years on record despite Italy carrying out an extensive search and rescue mission, Mare Nostrum, that year (IOM 2014).

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