A New Common European Approach to Search and Rescue? Entrenching Proactive Containment

03 Wednesday Feb 2021

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Italy, Law of the Sea, Libya, New Pact on Migration and Asylum

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By Violeta Moreno-Lax, Reader (Associate Professor), Queen Mary Law School

The EU (Non-)rescue Paradigm

The ambition of the New Pact on Migration and Asylum is to ‘build a system that manages and normalises migration for the long term and which is fully grounded in European values and international law’ (p. 1, New Pact), avoiding the kind of piecemeal ad hoc-ism that may degenerate in Moria-like fiascos (pp. 3 and 13, New Pact). This requires a ‘comprehensive approach’ (cf. Moreno-Lax and Papastavridis) that recognises ‘collective responsibilities … and tackles the implementation gap’ of the relevant standards (p. 3, New Pact), while ensuring solidarity (p. 5, New Pact), including in the maritime domain (p. 6, New Pact). Search and rescue (SAR) is acknowledged by the European Commission not only as ‘a moral duty and a [binding legal] obligation under international law’, but also as ‘a key element of the European integrated border management’ and as ‘a shared responsibility’ of both the Union and its Member States (p. 13, New Pact).

However, the focus—as with much of the New Pact—is neither on the protection of seaborne migrants and refugees nor on the elimination of the structural factors that push them to take the sea to reach safety in the first place. The main concern is with managing mixed flows and countering irregular arrivals on consideration that ‘dangerous attempts to cross the Mediterranean continue to bring great risk and fuelling criminal networks’ (p. 13, New Pact). Accordingly, the measures proposed to develop the purported ‘common European approach to search and rescue’ (heading, section 4.3) centre on ‘ensuring effective migration management’ (p. 14, New Pact). Five elements are expected to achieve this objective: (1) a more predictable relocation mechanism for disembarkations; (2) enhanced cooperation and coordination among Member States; (3) the deeper involvement of Frontex through increased operational and technical support; (4) the fight against the facilitation of irregular entry; and (5) strengthened cooperation with countries of origin and transit to prevent unauthorised crossings (pp. 13-14, New Pact). These measures may, as an add-on, ‘contribute to saving lives at sea’ (p. 13, New Pact), but this is not the priority. The priority, again, is to curb ‘dangerous journeys and irregular crossings’ in partnership with third countries and the prevention of the facilitation of unauthorised arrivals (p. 14 and sections 5 and 6, New Pact).

This entrenches a two-pronged model of proactive containment that prioritises the fight against irregular migration above all else (see also the blogposts by Guild and García Andrade in this series) based on two components: on the one hand, enlisting countries of origin and transit as deputised (extraterritorial) enforcers of Schengen controls and, on the other hand, countering the facilitation of irregular movement through the criminalisation of smugglers, traffickers, and even of not-for-profit organisations, except in certain circumstances discussed below. In my view, what the common European approach to search and rescue there by amounts to is the official endorsement and formal entrenchment of the rescue-through-interdiction/rescue-without-protection paradigm that has developed in practice since Frontex launched its first maritime (border surveillance) operation back in 2006.

In its latest stages of formation, this model has been characterised by an ‘interdiction by omission’ strategy based on the negation of rescue, including through outright abandonment at sea of survivors, the withdrawal of naval assets from Frontex and EUNAVFORMED operations, or the reduction of operational areas covered by maritime missions to avoid contact with potential ‘boat migrants’, as well as by the use of drones and information-sharing capabilities to allow third-country interceptions of potential shipwrecks. Port closures and the criminalization of ‘solidarity rescues’ undertaken by civil society organizations are also representative of this trend. The overarching goal, in the words of the EEAS, is to ‘save lives by reducing crossings’, so as ‘to better contain the growing flows of illegal migration’ across the Mediterranean, in line with the Presidency Conclusions of June 2015 (§3). And this remains the underpinning rationale of the new common European approach to SAR.

This contribution will show that, in the New Pact, the emphasis is on minimizing opportunities for rescue to translate into arrival and entry into EU ports by investing in building third countries’ interdiction capacity, while divesting from Member States’ and EU rescue missions, and keeping SAR NGOs under close scrutiny, treating them as suspicious and potentially criminally liable for their contribution to facilitating irregular crossings. With this in mind, the Commission has proposed two soft-law instruments to deliver its vision: a Recommendation on cooperation among Member States concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities (‘SAR Recommendation’) and the Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence (‘Criminalisation Guidance’), which concentrate on the NGOs providing rescue at sea since the outbreak of the ‘refugee crisis’ in 2015. The other aspects of the common European approach to SAR have been left inchoate in Section 4.3 of the Pact, which constitutes further evidence of where EU priorities lie.

Before delving into the details of the proposed instruments, it is worth discussing the background of the crisis environment within which the proactive containment approach has crystalized. That will provide the basis to analyse the main aspects of the common European approach to SAR in terms of rescue, disembarkation and relocation envisaged by the Commission and will allow for some conclusions on the implications that ensue.

Background: A ‘Crisis’ of our Own Making

The origins of the boat migration ‘crisis’ within which the proactive containment approach has consolidated and to which the common European approach to SAR intends to respond lie in a number of factors, starting with the drastic reduction of SAR capacity by EU coastal Member States in the Mediterranean from the 2010s, resulting in mass drownings (e.g. Lampedusa tragedy of 2013) which led to the launch of the Italian Mare Nostrum Operation in 2014, withdrawn one year after and replaced with FRONTEX-coordinated border control (rather than rescue) missions Triton, Triton+ and Themis. Gaps in SAR capacity were met with increased death rates at sea, earning the Mediterranean the title of ‘deadliest frontier’ worldwide—the Commission refers to IOM data counting over 20,000 fatalities since 2014 (Recital 3, SAR Recommendation). SAR NGOs emerged as a result to try fill those gaps in SAR provision. Although their presence was initially welcomed and their cooperation with Italian, Maltese and Greek coastguards run smoothly for a period of time, this changed in 2017 when the Italian government signed its infamous MoU with Libya in February 2017, to jointly fight irregular migration across the Central Mediterranean route, followed by the controversial Code of Conduct for NGOs involved in migrants’ rescue operations at sea in July 2017, which among other things required them ‘not to obstruct Search and Rescue operations by official Coast Guard vessels, including the Libyan Coast Guard’ (§9). This led to the criminalisation of the IUVENTA crew and the impoundment of their vessel in August 2017, after Jugend Rettet refused to sign the Code, due to several clauses being considered in breach of international law. Indeed, both the MoU with Libya and the Code of Conduct disregard the grave and widespread human rights abuses committed against migrants both in Libya and at sea, which may amount to atrocity crimes, as indicated by the ICC Prosecutor in her investigation.

The wave of criminalisation of SAR organisations and the de-legitimisation of maritime arrivals was reinforced once Salvini became Italy’s Interior Minister in 2018, when he adopted a special security decree implementing a ‘closed ports’ policy banning SAR NGOs from entering Italian ports and disembarking survivors—regardless of Italy’s obligations under EU and international law. This triggered a series of ‘crises’ whereby rescues were left incomplete, with rescue vessels left wandering for weeks or even months until voluntary, ad hoc solutions, including rerouting and relocation to other EU Member States, would have been agreed in intergovernmental and typically secret negotiations brokered by the Commission (sometimes with Council input). The unsubstantiated belief that rescue creates a ‘pull factor’, which is exploited by smugglers and traffickers, has fed into this dynamic, despite wide-ranging research dispelling the claim, based on data generated, not least, by Frontex and the EUNAVFORMED. An important detail to bear in mind is that these ‘crises’ have on average concerned 600 individuals at a time, which can hardly be said to overwhelm the overall asylum and return capacities of any given Member State.

Against this background, a first attempt to put an end to the ‘ship-by-ship’ arrangements to solve recurrent standoffs over disembarkation, particularly between Italy and Malta, was made with the Malta Declaration in September 2019, aiming for a structural, Europeanised solution that would make the system more stable and predictable (as analysed elsewhere in this blog). The outcome, however, was meagre and failed to bring the scheme within the EU legal framework, making no provision for safeguards and remedies to guarantee compliance with fundamental rights and the rule of law, instead reinforcing the trend of informal solutions and legitimatising the actions by the Italian government: endorsing both the MoU with Libya and the Code of Conduct for NGOs, despite harsh criticism including by the Council of Europe Commissioner for human rights and multiple other organisations, while UNHCR continued to consider Libya an unsafe place for disembarkation. EU support and persistent Member States’ engagement with the Libyan Coastguard have been normalised as a result. The EU Trust Fund for Africa is a direct mechanism buttressing the externalisation of SAR and the containment of maritime arrivals of seaborne refugees and other forced migrants ensuing from the Malta approach (the misuse of which has been denounced at the European Court of Auditors and the European Parliament).

The Common European Approach to Search and Rescue

Building on the Malta approach and to avoid a repeat of the closed ports incidents, the Commission now proposes a common European approach to SAR, failing, however, to provide any details on rescue and disembarkation arrangements, which, by contrast, were considered the key ‘pillars’ of the Malta Declaration initiative. The novelty lies in the solidarity relocations proposed in the Migration Management Regulation discussed by Maiani in this series. But there is very little on the bread and butter of SAR as such that has been provided in the New Pact. The focus, instead, as already stated, has been on ‘migration management’ (paras 1 and 2(b), SAR Recommendation).

Normalising Disengagement

The SAR Recommendation adds nothing to the current (underwhelming) EU rescue response in the Mediterranean, limiting itself to acknowledging that rescue is ‘an obligation under international law’ and highlighting that ‘[t]he European Union is a contracting party to UNCLOS’ (Recital 1, SAR Recommendation), but without elaborating on the concrete repercussions of this statement. This tallies with the general remark in the New Pact, mentioned above, that SAR is ‘a key element of the EU integrated border management’ system to be ‘implemented as a shared responsibility by Frontex and national authorities’ (p. 13, New Pact). The only further specification is that Frontex ‘should provide increased operational and technical support within EU competence’ and ‘deploy maritime assets to Member States to improve their capabilities’ (p. 13, New Pact), omitting the fact that Frontex has no specific mandate to engage in proactive SAR and has, in the very recent past, been confronted with allegations of failure to respond to distress calls, if not directly contributing to push-backs and ignoring ‘instructions to move…outside Triton’s operational area’ for the purpose of rendering assistance to migrant boats to avoid coming into contact with them and triggering rescue obligations in their regard.

On the contrary, the SAR Recommendation appears to rely on the increased rescue capacity stemming from ‘the … involvement of private and commercial vessels’, including those operated by NGOs, praising the ‘significant contributions from coastal States’ and Frontex (Recitals 4-5, SAR Recommendation), but without calling on them for additional efforts, despite a reference to the explicit request by the European Parliament to that effect (Recital 6, SAR Recommendation) and a direct allusion to the maritime conventions ‘obligat[ing] contracting parties to participate in the development of SAR services and to take urgent steps to ensure that the necessary assistance is provided to any person … in distress at sea’ (Recital 10, SAR Recommendation). No additional assets or resources are requested or organised. The only provision made is for an Interdisciplinary Contact Group of relevant stakeholders, including Frontex, SAR NGOs, academics, and international organisations, (Recital 16, SAR Recommendation) to develop best practices, exchange information and reinforce cooperation between flag and coastal Member States (Recitals 15-16 and paras. 1 and 2, SAR Recommendation).

Policing Humanitarianism

At the same time, the SAR Recommendation contains aveiled critique of NGO rescues. First, the SAR Recommendation embraces the ‘pull factor’ rhetoric when stating that ‘it is essential to avoid a situation in which migrant smuggling or human trafficking networks … take advantage of the rescue operations conducted by private vessels’ (Recital 9, SAR Recommendation). It is unclear whether the necessary implication is that rescue should not be performed if it risks jeopardising ‘effective migration management’ as interpreted by the Commission (p. 14, New Pact and para. 1, SAR Recommendation), which laments (in Recital 13, SAR Recommendation) that ‘continued disembarkations … have direct consequences on [Member States’] migration management systems and place increased and immediate pressure on [them]’.

Be it as it may, the foreseeable impact of the SAR Recommendation, rather than increasing SAR capacity in the Mediterranean, may well be the opposite by subjecting SAR NGO vessels to strict scrutiny, using ‘safety of navigation’ as an excuse to police their activity (p. 14, New Pact). Several measures, which in themselves constitute forms of criminalisation of humanitarianism in the broad sense, are proposed in the SAR Recommendation for this purpose. On the premise that SAR NGOs may conduct ‘consecutive rescue operations before disembarking [survivors]’ (Recital 8, SAR Recommendation) and act on their own motion, rather than at the behest of a Maritime Rescue Coordination Centre, with that ‘trigger[ing] specific operational needs of enhanced coordination’ with the authorities concerned (Recital 11, SAR Recommendation), the Commission feels this requires special rules of control, even though this behaviour is, in reality, in perfect conformity with international maritime conventions and the law of the sea.

Because SAR NGOs may conduct large and complex rescues there appears to be an assumption that this may give rise—per seand without further substantiation—to ‘public policy, including safety’ concerns (Recital 12, SAR Recommendation), justifying a need to closely police that SAR NGO vessels are ‘suitably registered and properly equipped to meet the relevant safety and health requirements associated with [their] activity’ (Recital 12, SAR Recommendation). There are, however, no instances of any SAR NGO vessel having failed to comply with registration and safety of navigation rules in the past. It is also telling that the same level of scrutiny does not apply to the Libyan Coastguard and similar actors with which the coastal Member States and the EU routinely cooperate. And no attention is paid to the fact that oftentimes the complexity of rescues is compounded by a refusal to allow disembarkation at safe ports on the EU side.

In addition, the rules on safety of navigation and rescue capacity for the performance of SAR duties are primarily addressed to the States party to the Search and Rescue Convention. They concern foremost State-run rescue services rather than private vessels, which, if States complied with their rescue duties effectively and in good faith, would only sporadically need to intervene in SAR incidents—rendering SAR NGOs obsolete and their activity unnecessary on the grand scale. The proposal by the Commission to turn the scheme upside-down and ask for the enforcement of rules originally designed for States party’s fleets on NGO vessels, which have only stepped in to remedy the gap left by the questionable disengagement of Member States from effective SAR at sea, is cynical, to say the least. It amounts to a kind of reversed stoppel argument that is used to obstruct their intervention. Not only are States not being required to observe their SAR obligations, as codified in the SAR Convention, but they are encouraged to instead somehow ‘transfer’ those obligations to the NGO sector as a way to impede their action and foreclose unwanted migration flows.

In the same vein, the Recommendation mentions the Italian Code of Conduct, and appears to imply that it may provide a model for the cooperation and coordination framework to be established by the Interdisciplinary Contact Group (Recitals 14, 15, and 16, SAR Recommendation) for the purposes of ‘increase[ing] safety at sea’ and ‘monitor[ing] and verify[ing] compliance with standards for safety at sea as well as the relevant rules on migration management’ (para. 2, SAR Recommendation). To that end, the framework should specifically aim to provide ‘appropriate information as regards the operations and the administrative structure’ of SAR NGOs (Recital 15, SAR Recommendation), hence Europeanising policing practices that restrict rather than facilitate rescue activities.

Criminalising Solidarity

The proposed common European approach to search and rescue, therefore, encloses a paradox: on the one hand, it relies on the enhanced SAR capacity represented by private vessels operated by NGOs in the Mediterranean, while, on the other hand, it raises suspicion of their undertakings, which it attempts to control, police, and ultimately supress to the maximum extent (cf. Starita). This is particularly evident from the manner in which the Commission Guidance against the criminalisation of humanitarian assistance has been framed.

Despite criticism by the UNODC, i.e. the body in charge of overseeing the correct application of the UN Protocol against Migrant Smuggling (which the EU ratified in 2006), making clear that the behaviour that may be criminalised is the facilitation of irregular entry mediating financial benefit and alerting that ‘even if the Protocol does not prevent States from creating [other] criminal offences outside its scope … it does not seek and cannot be used as the legal basis for the prosecution of humanitarian actors’ (p. 3, Criminalisation Guidance), the response by the Commission has been lukewarm. While it has expressed the view that Article 1 of the Facilitation Directive must be interpreted so that ‘humanitarian assistance that is mandated by law [presumably including rescue at sea] cannot and must not be criminalised’ (§ 4.(i), Criminalisation Guidance), the Guidance fails to provide examples of what exactly should be understood as ‘humanitarian assistance’ or at which point precisely should it be considered as being ‘mandated by law’. Then, the Commission states that ‘the criminalisation of NGOs … that carry out [SAR] operations at sea … amounts to a breach of international law and therefore is not permitted by EU law’, but it caveats the provision to cover only rescue operations conducted ‘while complying with the relevant legal framework’ (§ 4.(ii), Criminalisation Guidance), which leaves ample margin for speculation.

Quite controversially, the Commission claims that ‘[e]veryone involved in search and rescue activities must observe the instructions received from the coordinating authority when intervening in search and rescue events’ (p. 7, Criminalisation Guidance), disregarding recent incidents of orders provided to stand-by or to collaborate with the Libyan Coastguard in contravention of international obligations flowing from the right to life or to protection from ill-treatment or against refoulement. Conversely, due to the prohibition on any State claiming sovereignty over the high seas, no jurisdictional powers, different from those explicitly recognized by the UN Convention on the Law of the Sea (UNCLOS) or other relevant international treaties, can validly be established to deliver orders with legal effect to foreign ships (Art 89 UNCLOS). Freedom of navigation and the rule of exclusive flag-state jurisdiction support this interpretation (Arts 90 and 92(1) UNCLOS). What is more, in the specific context of SAR interventions, the Safety of Life at Sea Convention (SOLAS) makes clear that no ‘other person … shall … prevent or restrict the master of the ship from taking or executing any decision which, in the master’s professional judgement, is necessary for safety of life at sea’ (SOLAS, Annex, Ch. V, Reg. 34-1). Such level of discretion is essential to respond promptly and adequately to changing circumstances. And, as regards the content of any SAR instructions by rescue coordinating authorities, these cannot be such as to contravene the purpose of the SAR regime—which is to preserve human life at sea. Neither can they violate human rights (Arts 2(3) and 87(1) UNCLOS). In such situations, shipmasters have what has been called a ‘right to obey international law’.

Nonetheless, instead of clarifying the specific conduct to be punished and the conditions under which it should be prosecuted—as would have been expected for compliance with the principle of legality of offences under Article 49 of the Charter of Fundamental Rights—the final assessment, in the Commission’s view, pertains to the judicial authorities of the Member States. They—instead of the EU legislator—are the ones who will ‘have to strike the right balance between the different interests and values at play’ (p. 6, Criminalisation Guidance)—as if the (customary international legal) duty to rescue or the absolute principle of non-refoulement admitted such a balancing against, presumably, the migration management interests of the Union and the Member States. The only policy recommendation made by the Commission is just to ‘invite’ Member States ‘to use the possibility provided for in Article 1(2) of the Facilitation Directive’ of exonerating humanitarian assistance from the scope of criminalisation (p. 8, Criminalisation Guidance). This means that a matter of EU legality (and its compatibility with international norms) has been left unresolved and relegated to a mere issue of domestic implementation and policy preference that may ultimately have to be resolved by Member State Courts ‘on a case-by-case basis’ (§ 4.(iii), Criminalisation Guidance). As a result, the practices of policing and criminalisation of SAR NGOs witnessed since 2017 may continue unabated. It will only be in the Courts that their activities, as humanitarian actors and human rights defenders, may eventually be de-criminalised. But the strategy of ‘persecution by prosecution’, used in Italy and Greece against Sea Watch, Proemaid, or Team Humanity, can and will foreseeably continue under the terms of the Criminalisation Guidance.

Disembarkation and Relocation

Regarding disembarkation, there is no proposal as part of the common European approach to SAR to clarify where survivors should be taken when rescued within operations not coordinated by Frontex (which is the only scenario regulated by the EU Sea Borders Regulation, to which the Commission proposals make no reference). Rather than attempting a clarification, the Commission alludes to ‘strengthen[ed] cooperation with countries of origin and transit to prevent … irregular crossings, including through tailor-made Counter Migrant Smuggling Partnerships with third countries’ (p. 14, New Pact). Although no direct mention is made of Libya, Turkey or Morocco, these are the main countries of provenance of rescued persons disembarked in the EU. It is striking that there is no discussion of the human rights implications of collaboration with these countries and that the proposal completely disregards the EU’s and the Member States’ own extraterritorial obligations vis-à-vis third-country nationals, including concerning the right to leave any country including one’s own, the right to seek asylum, and the right to protection from ill-treatment as well as the prohibitions of collective expulsion and refoulement that remain relevant at sea.

Compulsory Solidarity?

It is only if (and once) disembarkation takes place in an EU Member State that there is a specific system of solidarity relocations, which may be activated as part of the new provisions contained in the proposal for Migration Management Regulation (MMR). As explained by Maiani, the system can work in ‘basic’ mode, ‘pressure’ mode, or ‘crisis’ mode, the details of which he has discussed at length. In its basic variant, designed to replace the current ad hoc solutions (Arts 47-49 MMR), the Commission assesses, in its yearly Migration Management Report (Art 6(4) MMR), whether a Member State is faced with ‘recurring [maritime] arrivals’ following rescue operations (Art 47(1) MMR) and determines its solidarity needs, in terms of relocations and other contributions potentially taking the form of return sponsorships or capacity-building measures (Art 45 MMR). The other Member States are then ‘invited’ to notify the ‘contributions they intend to make’ (Art 47(3)-(4) MMR). If offers are sufficient, the Commission adopts a ‘solidarity pool’ (Arts 48(1) and 49 MMR). If not, it will convene a ‘Solidarity Forum’ (Arts 46 and 47(5) MMR) and ask Member States to adjust their pledges. If the offer still falls ‘significantly short’ of the needs, the Commission will adopt an implementing act (Art 48 MMR) identifying relocation targets for each Member State according to a distribution key, weighing total population and total GDP (Art 54 MMR). Member States may react by offering other contributions instead, provided that this is considered ‘proportional’. If the relocations offered still fall 30% short of the identified needs, each Member State will be obliged to meet at least 50% of their quota via relocations or return sponsorships (p. 19,MMR Memorandum). If the solidarity pool risks being exhausted, the Commission can revise it and set out additional relocations, which, however, may be ‘capped to 50%’ of the amount initially foreseen (p. 19, MMR Memorandum). If these, too, become insufficient, then the ‘pressure’ or ‘crisis’ mode of the solidarity system may be activated (Arts 49(3) and 50-53 MMR).

The relocation scheme can also be triggered by a ‘request for solidarity support’ (Art 49(1) MMR) from the Member State faced with repeated maritime entries. In such cases, the Commission will draw on the solidarity pool and coordinate implementation of the solidarity measures ‘for each disembarkation or group of disembarkations’ (Art 49(1) MMR)—which may replicate the ‘ship-by-ship’ formulas of the present. It is then for the Commission, alongside FRONTEX and EASO, ‘to draw up a list of eligible persons to be relocated’, indicating their distribution amongst the contributing Member States, taking account of their nationalities and any ‘meaningful links’ with the country of relocation, but giving priority to vulnerable persons (Art 49(2) MMR).

From this brief overview the overly complex nature of the system proposed becomes quite visible and a number of shortcomings can already be detected. First of all, it is unclear what happens if Member States fail to engage with the SAR Solidarity Response Plan (Art 47(4) and Annex I MMR), if they persist in their defection or do not comply with the Commission indications. What if there are conflicts between Member States or if they contest the way in which their quotas have been calculated? There are no conciliation procedures or sanctions envisaged in such cases. It is also unclear how long the Solidarity Forum may deliberate for and under which rules; this may defeat the objective of ‘rapid’ relocations, which may, in turn, translate into situations where disembarkations are withheld. The system depends on constant negotiation and relies on an amount of good faith and mutual trust between the Member States that has yet to materialize. We also do not know how concurrent situations of ‘recurring arrivals’, ‘migratory pressure’ or ‘crisis’ sparking simultaneously in different Member States will be reconciled. The Commission promises ‘reductions’ of up to 10% of quotas of contributing Member States in certain situations (Art 52(5) MMR), but it remains silent on the coordination of concurrent emergencies.

Overall, it seems unrealistic to expect Member States to cede the required power to the Commission to force their hand into accepting relocations of disembarked migrants. A repeat of the legal proceedings against the Visegrád States regarding the 2015 relocation scheme cannot be discarded. The proposal in fact concentrates the power to make all the key decisions in the hands of the Commission, to decide what the solidarity needs are and how these should be distributed; whether Member States are confronted with ‘recurring arrivals’, ‘pressure’ or a ‘crisis’; how solidarity contributions should be calculated and which shape they need to take. Yet, it is unclear how much more predictable, swift or foreseeable this system will be compared to the current ad hocarrangements.

Limitless Defection Possibilities

The situation is exacerbated by the new rules on force majeure, contained in the crisis and force majeure Regulation (CFMR), which the Commission proposal fails to define. While crisis scenarios are characterised by a ‘mass influx of third-country nationals … arriving irregularly in a Member State or disembarked on its territory following search and rescue operations, being of such a scale … and nature that it renders the Member State’s asylum, reception or return system non-functional’ (Art 1(2) CFMR), force majeure has not been specified. The Preamble of the proposed instrument relates generally to ‘abnormal and unforeseeable circumstances outside [Member States’] control the consequences of which could not have been avoided in spite of all due care’ (Recital7 CFMR) and it alludes to the COVID-19 pandemic and lessons to be learnt from it (pp. 4 and 9-11, CFMR Memorandum). But rather than condemning the violations witnessed throughout this period—vaguely referring to the unlawful suspension of the right to asylum by the Greek authorities in March 2020 as a ‘political crisis’ (p. 9, CFMR Memorandum), the Commission proposes to entrench them as valid derogations from the applicable rules—ignoring the impact that these will have on absolute human rights, like the prohibition of ill-treatment (including refoulement), which do not allow for proportionality reasoning or any limitations or derogations whatsoever.

An extra complication stems from the new force majeure framework. What will happen if a majority of Member States unilaterally declare themselves to be faced with a force majeure situation, such as an additional wave of COVID-19 infections? The current proposal allows them to do so without any democratic or legal oversight by the European Parliament or the Commission. This will put on hold solidarity mechanisms for months (Art 3(4) CFMR) and exempt Member States from Dublin transfers for an unspecified amount of time, since there is no deadline applicable to the length of the force majeure situation (Art 7(2) CFMR). This can paralyse the system and lead to a legalised form of fragmentation, which could lead to a de facto de-harmonization of the legal and policy framework as we know it, unwalking the steps towards a common European system in this field (see further De Bruycker).

From Win-Win to Lose-Lose Outcomes

While it is open to discussion who the winners of this scheme will be, there are some clear losers. The implications for applicants and the benefitting Member States need to be considered in some detail. Although one may think that relocations will be a ‘good thing’ for the individuals concerned, it is striking that their agency, voice, and preferences will not be taken into account in any way. Although they will be able to oppose a relocation decision (on the same limited basis as they could challenge a Dublin transfer), it is unclear the degree to which extended family links, support networks and other relevant connections will be taken in consideration, considering the ‘swiftness’ with which the pre-screening and relocation procedures are supposed to take place. The ‘meaningful links’ that need to be factored into relocation decisions (Art 49(2) MMR) have not been defined in the proposed Regulation (cf. Art 2 MMR), beyond the allusion to ‘diploma[s] or qualification[s] issued by an educational institution established by a Member State’ (Recital 50, MMR) and the ‘targeted extensions of the family definition’ (p. 24, MMR Memorandum). The fact that some relocations (or return sponsorships) will, therefore, be arranged against their will entrench, rather than reduce, possibilities for supposed abuses by individual beneficiaries and boost the much-despised secondary movements of protection seekers within the Schengen area (discussed by Thym). Another issue the Commission fails to address is the potential incompatibility of these arrangements with Article 3 of the 1951 Refugee Convention, which forbids discrimination amongst refugees. This system, however, singles out maritime rescuees on the basis of their mode of arrival to the potential country of refuge, putting them at a potential disadvantage on grounds unrelated to their protection needs.

There are also significant hidden costs for benefitting Member States, who will need to undertake substantial processing of SAR arrivals before relocation can be pursued, including for pre-entry screening purposes, entailing health and security checks (Arts 6(6), 9 and 11, pre-entry screening proposal), which may exclude applicants from relocation (Art 57(2) MMR and p. 12, MMR Memorandum); for the registration of asylum applications (Arts 10 and 14(6), pre-entry screening proposal); to carry out some form of abbreviated Dublin processing, at least, to establish whether family criteria may render the Member State of disembarkation responsible for the potential candidate (Art 57(3) MMR); and regarding the border procedure, if persons fall within its remit (Art 41, revised Asylum Procedures Regulation proposal), since this disqualifies them from relocation too (Art 45(1)(a) MMR).

Against this background, the extent to which relocations can be made swift remains doubtful and whether Member States in ‘pressure’ or ‘crisis’ situations will be able to adequately cope, even on account of the extended deadlines for registration and transfers under the applicable models (Arts 4-6 and 7-9 CFMR) is uncertain. Also, and most importantly, there are no guarantees against defection on the part of fellow Member States. In cases of non-compliance, the benefitting Member State will in fact be ‘stuck’ with the persons concerned.

Concluding Remarks: A Thousand Little Morias

All in all, the Commission’s plan for a new common European approach to search and rescue leaves much to be desired. It structuralises the current (mal)practices, including those whose legitimacy and legality have been challenged in national and European Courts. This, I fear, will create more problems than will solve.

Rescue in the New Pact has been designed as an exception to the general rule of containment of unwanted arrivals, and unauthorised crossings as a risk to be avoided as much as possible. Within this framework, the EU will ‘support capacity building … help[ing] partner countries manage irregular [flows]’ (p. 20, New Pact), framing maritime intervention as a function of border management. When assisting third countries, the EU will indeed focus on ‘strengthening capacities for border management, including by reinforcing their search and rescue capacities at sea’ (p. 20, New Pact). Rescue will thereby be further securitised and configured as a form of ‘sovereign capture’ which becomes undistinguishable from interdiction, used to spare the dangers of deadly crossings, to be performed pre-emptively to avoid loss of life, but, at the same time, in a way that impedes access to protection in Europe. Pull-backs, detention and repression by partner States will thus become further normalised as legitimised means within the ‘targeted migrant smuggling partnerships’ the EU is to conclude with third countries (p. 16, New Pact), regardless of their human rights implications—which are nowhere mentioned in the New Pact.

Even upon disembarkation the possibility of a thousand little Morias proliferating cannot be excluded. The combination of pre-entry screening arrangements, border procedures, and complex solidarity relocations embeds rather than overhauls the failed hotspot approach. Inevitably, the international SAR regime and the customary international legal obligation to render assistance and rescue at sea on which it is based (including disembarkation in a ‘place of safety’ in line with non-refoulement guarantees) will be disfigured and betrayed. So, in the final assessment, I need to concur with Commissioner Johansson and conclude that ‘no one will be satisfied’ with the New Pact—at least, no one should.

EU ACTS

Commission Communication on a New Pact on Migration and Asylum, COM(2020) 609 of 23 September 2020.

Commission Recommendation on cooperation among Member States concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities, C(2020) 6468 of 23 September 2020.

Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence, C(2020) 6470 of 23 September 2020.

Commission Proposal for a Regulation on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund] COM(2020) 610of 23 September 2020.

Amended Proposal for a Regulation establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2020) 611 of 23 September 2020.

Commission Proposal for a Regulation introducing a screening of third country nationals at the external borders, COM(2020) 612 of 23 September 2020.

Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum, COM(2020) 613 of 23 September 2020.

EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE