International law expert Dana Schmalz from the University of Bremen describes the current situation: “At the moment, we are witnessing debates concerning the rescue of the people in the Mediterranean Sea. The majority of said persons started their boat journey in Libya and are looking for protection in Europe. The same questions keep being asked: What are countries allowed to do? What obligations do countries have? This leads us to maritime law within human rights agreements and international refugee law.” Furthermore, it is a matter concerning the rights of civil sea rescuers, as is the case with Sea-Watch 3. In this particular matter, international law meets national law of coastal states, specifically Italy.
Sea Rescue Is a Long Recognized Obligation
“Rescuing people who are in distress at sea is legally a long recognized obligation”, says Schmalz. Within international contract law, said obligation is rooted in article 98, paragraph 1 of the Law of the Sea. Furthermore, the obligation to maritime rescue is valid within the frame of customary international law.
“The obligation to maritime rescue encompasses the responsibility of bringing the rescued persons to a safe place where they are no longer in danger”, emphasizes Schmalz. Libya is not such a place. Several reports have shown that asylum seekers are detained there under inhumane conditions.
People Have the Right to Leave Libya
In her opinion, so-called pull-backs, where the coastguard fetches asylum seekers and takes them back to Libya, are problematic. The right to leave any state is guaranteed within article 12 of the International Covenant on Civil and Political Rights.
Even more complex is the question of where rescued persons can be taken. No direct admittance obligation of the coastal states is linked with the obligation to maritime rescue, explains Schmalz. However, the safe place need not always be the next port. The right of entry for a vessel in distress to any port under customary international law is only valid if the vessel itself is in immediate danger. “This is why civil maritime rescue vessels often have to wait for days on end for permission to call at a port – this is a show of political incompetence”.
European Regulation Overdue
In the European Union, the questions concerning maritime rescue meet with those regarding the sharing of responsibility by the member states. According to the Dublin Regulation, it is generally the case that the country via which the person initially “irregularly” entered into the EU is responsible. The majority of said countries are therefore the coastal states Italy, Greece and Spain. Dana Schmalz points out that one could read the Dublin Regulation differently: “Is it actually an irregular entry in accordance with article 13, paragraph 1 of the Dublin Regulation when people seeking asylum have been rescued and taken to shore?” The EU Advocate General Eleanor Sharpston has already posed this question.
Yet relief is not predominantly to be provided by the justice system but rather by politics. Repeated efforts have been made to reform the Dublin Regulation in order to distribute the responsibility more fairly – and thus more feasibly – between the member states. “The efforts for a comprehensive reform were initially unsuccessful. It is, however, unacceptable that the asylum seekers pay the price for the lack of European agreement. The current situation is a disaster.” Even without a reform of the Dublin Regulation, the member states must reach a consensus for a joint mechanism so that it can be guaranteed that asylum seekers rescued from sea can be immediately transported to land. “It is about recognizing that this is the joint responsibility of Europe”, according to Schmalz. She therefore believes the agreement made on Monday in Paris to be a step in the right direction.
Dana Schmalz is a visiting professor of public law at the University of Bremen. Her research focuses include foundations of law, international law and especially international refugee law.
Prof. Dr. Dana Schmalz
Faculty of Law
University of Bremen
Phone: +49 421 218-66008
Email: dschmalzprotect me ?!uni-bremenprotect me ?!.de