Taking aim at sea rescue

In Germany, the Federal Ministry of Transport has attempted to restrict the work of organisations with the “Ship Safety Act” – under the pretext that it is necessary to raise safety standards for smaller ships. For many organisations, this would have resulted in the cessation of their humanitarian work in the Mediterranean. Following fierce criticism, the draft was shelved. It is currently being revised.

And just the week before last week it became known that humanitarian work at Europe's external borders and sea rescue could be further criminalized, hidden in an amendment to the Residence Act. The criminal offence of "smuggling foreigners" is intended to criminalise altruistic "smuggling" into another EU or Schengen state. A monetary payment or other consideration for the assistance would not be required. It would be sufficient to act repeatedly or in favour of several foreigners. It remains to be seen to what extent this would be interpreted to the detriment of humanitarian actors and refugees. It is conceivable that simply giving a lift in a car, buying a train ticket or distributing food or water, or even calling at Italian ports with people rescued from distress at sea, would fulfil the offence. Ultimately, the courts will have to clarify this.

GEAS reform: sea rescue and the instrumentalisation of migration

With the CEAS reform, states have also found ways to make humanitarian sea rescue more difficult. The reform could create new incentives to block NGO ships and hinder or even criminalise civilian sea rescue. Screening, border procedures and the extension of the Dublin deadline will place an even greater burden on EU states with external borders and thus create even more incentives for states such as Italy to obstruct sea rescue organisations, in order to prevent further arrivals. Perhaps this is also why Italy insisted that a clause be removed from the Council proposal on the crisis regulation, which was intended to prevent sea rescue operations from being seen as an "instrumentalisation of migration". This would mean that the organisations could be accused of jeopardising or destabilising essential functions of the state, such as maintaining law and order or protecting national security. As a result, the Italian government could further restrict rescue activities and tighten laws and measures that criminalise civil society activities in the central Mediterranean.

However, the reform of the CEAS is not the only way in which ways of restricting civilian sea rescue are being sought at European level. In May 2023, a work programme entitled "Draft Roadmap towards a European Framework for Operational Cooperation on Search and Rescue in the Mediterranean Sea" was leaked. The plan shows that the Commission and the Member States want to harmonise the registration, certification and ship safety requirements for private vessels, which would also affect civilian sea rescue vessels. In light of the experiences in the Member States, it is to be feared that harmonisation will serve as a pretext for further attempts to obstruct sea rescue organisations.

Response to the humanitarian disaster in the Mediterranean

To summarise: Europe is witnessing a humanitarian catastrophe in the Mediterranean. The EU and its Member States are refusing to do their duty and are outsourcing responsibility to countries such as Libya and Tunisia. Actors trying to rescue people in distress at sea and draw attention to the disaster are being obstructed, criminalised and defamed. A humanitarian response to the deaths in the Mediterranean should include the following points:

1. The EU and its Member States must establish a proactive, state-led search and rescue mechanism and deploy their own search and rescue vessels to the Central Mediterranean with the clear aim of saving lives at sea and ensuring disembarkation in a safe place.
2. European coastal states and EU agencies must fulfil their duty to help people in distress at sea, coordinate rescue operations and pass on available information to all institutions capable of carrying out a rescue.
3. The obstruction and criminalisation of civil sea rescue must be ended. Regulations, laws and practices that criminalise the rescue of people must not be introduced.
4. The EU and national institutions must investigate incidents, shipwrecks and offences at sea. States and authorities must be held accountable for their failures.
5. The EU and its Member States are called upon to develop accessible and safe routes for migration.

In addition, the EU and its Member States should put an end to deterrence policies and the outsourcing of border protection, which lead to violent closures, forced returns and refoulement as well as the denial of fundamental rights. The primacy of reducing migration by all means must be ended, because it costs human lives.