We Must Do Better: The Migration Crisis and the Law of the Sea

Rachel Barr
Vol. 38 Associate Editor

On October 5, The New York Times published a heart-wrenching article entitled “Stepping Over the Dead on a Migrant Boat.”[1] The piece contained one photographer’s story and photos from his time spent on a recue boat in the Mediterranean. It told of the desperation and fear of the migrants, and the shock he felt witnessing the rescue of survivors from packed, unseaworthy boats.[2]

According to the United Nations High Commissioner for Refugees, 3,654 people have died or gone missing trying to cross the Mediterranean Sea so far this year.[3] Many of those making the crossing are fleeing conflict and persecution; a majority (51%) are coming from Syria, Afghanistan, or Iraq, with others coming from East and West Africa, and other areas in the Middle East.[4]

With accounts of massively overcrowded boats[5] and lifejackets that aren’t buoyant,[6] the Mediterranean Sea crossing being attempted by thousands of migrants is a humanitarian disaster. We must not stand idly by. International law requires action in response to these horrific circumstances.

Following age-old maritime traditions, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) obliges that a ship master “render assistance to any person found at sea in danger of being lost” and to rescue those in distress so long “as he can do so without serious danger to the ship, the crew or the passengers” of his own vessel.[7] The International Convention for the Safety of Life at Sea includes a similar obligation requiring ship masters, on hearing about a vessel in distress, to provide assistance and inform the search and rescue service that they are doing so.[8] UNCLOS additionally requires costal states to maintain a search and rescue service,[9] and the International Convention on Maritime Search and Rescue requires parties to provide assistance to anyone in distress “regardless of the nationality or status of such a person or the circumstances in which that person is found.”[10] These laws require the rescue of survivors from unseaworthy vessels crossing the Mediterranean.

While many costal countries have search and rescue services that patrol their waters, there are not enough resources, as the focus of European countries has shifted from search and rescue to border protection efforts.[11] The massive number of people crossing the Mediterranean and the lack of sufficient search and rescue resources have given rise to non-profit organizations, including Medecins Sans Frontiers/Doctors Without Borders,[12] Migrant Offshore Aid Station,[13] and SOS Méditerranée,[14] that are taking on search and rescue responsibilities and operations. It is difficult to imagine the scope of the problem. But, for context, in one day alone (on October 3, 2016), 5,600 people were rescued by national and humanitarian organizations’ search and rescue operations.[15] That’s over 1,000 charter buses full of people.[16]

Not only is there both a moral and a legal duty to rescue those in danger of losing their life at sea,[17] it is the responsibility of the rescuer to take them to a place of safety.[18] Amendments to the Convention for Safety of Life at Sea and the International Convention on Maritime Search and Rescue codify this obligation of Member States to ensure that the rescued survivors disembark the vessel in a safe place. A safe place is one “where their [survivors’] basic human needs (such as food, shelter and medical needs) can be met.”[19] Guidelines developed by the International Maritime Organization specifically note that the circumstances of the rescue should be considered when determining a place of safety for disembarkation. With respect to refugees and asylum-seekers in particular, “the need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened is a consideration.”[20] The interpretation of what is considered a place of safety, however, varies.[21] According to one scholar, “a place of safety is a location to which the survivors can be delivered without having their fundamental rights violated…a location where the survivors are not at serious risk of being subject to torture, persecution or other inhuman or degrading treatment or punishment, or where their lives or freedom would be threatened on account of their race, religion, nationality, sexual orientation, membership of a particular social group or political opinion.”[22]

In the context of the European migration crisis, the survivors are often taken to Southern European countries including Greece and Italy. But can these locations really be considered places of safety?

Currently, there are over 57,000 refugees living in Greece (over half of them are women and children), and many of those refugees are living in conditions that “do not meet accepted humanitarian standards.”[23] Additionally, refugees living in camps face shortages of food and water,[24] lack of healthcare and education for their children,[25] and dangers of sexual assault and attack by mafia gangs.[26] While the camps were meant to be temporary locations for those waiting for their asylum claims to be processed, families have spent months living in squalor with no information.[27] One refugee in Greece told the New York Times, “If we knew it would be like this, we would not have left Syria. We die a thousand deaths here every day.”[28]

More generally, refugees in Europe are experiencing discrimination. Some European countries are using a fear of radical Islam, and Islamaphobia more generally, as a reason to limit the number of asylum seekers and refugees entering their countries. In some cases, countries have closed borders completely, despite the fact that 54% of refugees are women and children.[29] On a more individual scale, there has been an increase in attacks and hate speech directed at refugees and migrants in Europe.[30] Due to the lack of necessary resources for refugees, including food and shelter, the refugee camps, and Europe more generally, are not a place of safety for refugees as their basic rights are not being protected. Additionally, the discrimination refugees are facing further suggests that Europe cannot be considered a place of safety as required by international law.

Based on international legal principles, this is unacceptable. As explained in this article, not only is there a legal and moral obligation to rescue refugees and migrants from the sea, but there is also an obligation to disembark survivors to a place of safety where their rights are protected. The European community has failed at this second requirement. Costal countries must work harder to provide adequate food, shelter, healthcare, and protection to those who are being rescued and brought to their shores. Other European countries must do more to provide resources to costal countries to ensure that refugees’ fundamental human rights are protected. Additionally, while governments cannot always prevent their citizens from taking discriminatory actions, government officials should not be supporting hateful and discriminatory rhetoric, and should be better cracking down on the hateful acts their citizens are committing towards refugees. Further, governments should encourage communities to welcome refugees and help them assimilate into their new European communities. Those who are being rescued from the Mediterranean and brought to Europe have endured unspeakable horrors; they deserve to have their human rights protected and to be treated with respect when they arrive, as obligated by international law.

[1] Rick Gladstone, Stepping Over the Dead on a Migrant Boat, N.Y. Times (Oct. 5, 2016), http://www.nytimes.com/2016/10/06/world/europe/migrants-mediterranean.html?_r=0.

[2] Id.

[3] Refugees/Migrants Emergency Response – Mediterranean, UNHRC, The UN Refugee Agency (Oct. 22, 2016, 2:42 PM), http://data.unhcr.org/mediterranean/regional.php.

[4] Id.

[5] Emergency in the Mediterranean, Medicins Sans Frontieres/Doctors Without Borders (Oct. 22, 2016, 2:46 PM), http://www.doctorswithoutborders.org/emergency-mediterranean.

[6] Lynda O’Connor, Haunting Life Jacket Images Illustrate Desperation In Refugee Crisis, The Huffington Post (Sept. 13, 2015), http://www.huffingtonpost.com/entry/life-jacket-refugees_us_55f5c1afe4b077ca094f6573; Sarah Kaplan, Does It Get Any Sicker? A Turkish Firm Has Been Selling Fake Life Vests – They Soak Up Water – For Refugees at Sea, The Washington Post (Jan. 7, 2016), https://www.washingtonpost.com/news/morning-mix/wp/2016/01/07/does-it-get-any-sicker-a-turkish-firm-has-been-selling-fake-life-vests-they-soak-up-water-for-refugees-at-sea/.

[7] United Nations Convention on the Law of the Sea art. 98, Dec. 8, 1982, 1833 U.N.T.S. 397; Int’l Mar. Org., Int’l Chamber of Shipping & Office of the United Nations High Comm’r for Refugees, Rescue at Sea: A Guide to Principles and Practice as Applied to Refugees and Migrants (2015), available at http://www.ics-shipping.org/docs/default-source/resources/safety-security-and-operations/imo-unhcr-ics-rescue-at-sea-guide-to-principles-and-practice-as-applied-to-refugees-and-migrants.pdf?sfvrsn=23.

[8] International Convention for the Safety of Life at Sea, Nov. 1, 1974, 1184 U.N.T.S. 278; Int’l Mar. Org., supra note 7.

[9] United Nations Convention on the Law of the Sea art. 98 , supra note 7.

[10] International Convention on Maritime Search and Rescue art 2.1.10, Apr. 22, 1979, 1985 U.N.T.S. 118.

[11] Hereward Holland, An Up-Close Look at Refugee Rescues on the Mediterranean, National Geographic (Sept. 12, 2016), http://news.nationalgeographic.com/2016/09/refugee-rescues-mediterranean-Africa-Europe/.

[12] Search and Rescue in the Mediterranean Sea, Medicins Sans Frontieres/Doctors Without Borders (Oct. 22, 2016, 3:30 PM), http://www.msf.org.uk/country-region/search-and-rescue-in-the-mediterranean-sea.

[13] Migrant Offshore Aid Station, https://www.moas.eu (last visited Oct. 22, 2016).

[14] SOS Méditerranée, http://sosmediterranee.org/?lang=en (last visited Oct. 22, 2016).

[15] Over 5,600 Migrants Rescued from Sea in a Single Day, Middle East Monitor (Oct. 3, 2016, 8:18 PM), https://www.middleeastmonitor.com/20161003-over-5600-migrants-rescued-from-sea-in-a-single-day/.

[16] How Many Seats Are on Your Charter Buses?, Werner Coach (Oct. 22, 2016, 3:34 PM), http://www.wernercoach.com/faqs/how-many-seats-are-on-your-charter-buses/.

[17] United Nations Convention on the Law of the Sea., supra note 7.

[18] International Maritime Organization, Guidelines on the Treatment of Persons Rescued at Sea Res. MSC.167(78), (May 20, 2004), available at http://www.imo.org/en/OurWork/Facilitation/personsrescued/Documents/MSC.167(78).pdf

[19] Id.; Martin Ratcovich, The Concept of ‘Place of Safety’: Yet Another Self-Contained Maritime Rule of a Sustainable Solution to the Ever-Controversial Question of Where to Disembark Migrants Rescued at Sea, 33 Australian Y.B of Int’l L. 81, 93-94; Int’l Mar. Org., supra note 7.

[20] Int’l Mar. Org., supra note 18, at 8. .

[21] Ratcovich, supra note 16, at 82.

[22] Id. at 120.

[23] Greece, International Rescue Committee https://www.rescue.org/country/greece#what-caused-the-crisis-in-greece (last visited Oct. 22, 2016, 3:50 PM).

[24] Nick Squires, Refugee Camps on Greek Islands ‘Bursting at the Seams’ as Crossings from Turkey Begin to Pick Up, The Telegraph (Aug. 16, 2016), http://www.telegraph.co.uk/news/2016/08/16/refugee-camps-on-greek-islands-bursting-at-the-seams-as-crossing/.

[25] Liz Alderman, Aid and Attention Dwindling, Migrant Crisis Intensifies in Greece, N. Y. Times (Aug. 13, 2016), http://www.nytimes.com/2016/08/14/world/europe/migrant-crisis-greece.html?_r=0.

[26] Helena Smith, Refugees in Greek Camps Targeted by Mafia Gangs, The Guardian (Aug. 20, 2016), https://www.theguardian.com/world/2016/aug/20/refugees-greek-camps-targeted-mafia-gangs; Mark Townsend, ‘Sexual assaults on children’ at Greek refugee camps, The Guardian (Aug. 13, 2016), https://www.theguardian.com/world/2016/aug/13/child-refugees-sexually-assaulted-at-official-greek-camps.

[27] Alderman, supra note 22.

[28] Id.

[29] Apostolis Fotiadis, This Racist Backlash Against Refugees Is the Real Crisis in Europe, The Guardian (Feb. 25, 2016), https://www.theguardian.com/commentisfree/2016/feb/25/racist-backlash-against-refugees-greece-real-crisis-europe.

[30] Attacks Against Refugees, Asylum Seekers and Migrants Are Unacceptable, Says Head of European Human Rights Institutions, European Union Agency for Fundamental Rights (Mar. 21, 2016), http://fra.europa.eu/en/press-release/2016/attacks-against-refugees-asylum-seekers-and-migrants-are-unacceptable-say-heads.

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