A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea

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1 International Journal of Refugee Law Vol. 23 No. 3 pp The Author (2011). Published by Oxford University Press. All rights reserved. For Permissions please journals.permissions@oup.com doi: /ijrl/eer017, Advance Access published on June 22, 2011 A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea SILJA KLEPP* Abstract This paper discusses research results from anthropological fieldwork carried out in Malta in The island, which is situated in the central Mediterranean Sea between Tunisia, Libya and Italy, is a focal point regarding the continuing refugee situation. One of the research aims was to investigate the situation at sea concerning Search and Rescue (SAR) operations for migrants and refugees crossing the Mediterranean by boat. In the year 2006, 556 missing and drowned migrants were registered in the central Mediterranean between Libya, Malta and Italy, this number increased to 642 in The goal of the research in Malta was therefore to understand why an increasing number of migrants were dying at sea and what role the European security forces play in this context. After introducing the research perspective of this article, background information concerning migration movements in the Mediterranean Sea between Libya, Italy and Malta in recent years is provided. Due to European regulations, which are considered unfavourable for the island, and its population density, Malta feels under pressure from migrants arriving by boat across the Mediterranean. Different concepts regarding a place of safety to disembark rescued boat migrants are debated. The ambiguities in the responsibilities cause problems for the captains who rescue migrants in distress at sea. These ambiguities may in turn lead to a weakening of the SAR regime. Following discussion of the legal and political quarrels on the place of safety, the SAR operations at sea of the Armed Forces of Malta is analysed. The findings show that it is not merely a case of enforcing legal norms created by international law. The process is much more complex: legal gaps are filled by regional actors, through informal or even illegal practices, asserting their own claims at their convenience. Thus, transnationalization processes of law, such as the international SAR regime, are a fragmented and ambiguous set of regulations, creating space for negotiation and manoeuvre. 2 * Research Associate, Research Center for Sustainability Studies (artec), University of Bremen. The author would like to thank Dr Jeanne Féaux de la Croix and Katja Hessenkämper for their comments on the article. 1 Fortress Europe, I numeri del Canale di Sicilia anno per anno, available at: < blogspot.com/2006/01/i-numeri-del-canale-di-sicilia-anno.html> (last accessed 25 June 2010). Fortress Europe is a press review blog that monitors all fatalities at the European border linked to migration. 2 F. von Benda-Beckmann, K. von Benda-Beckmann and A. Griffiths, Mobile People, Mobile Law: An Introduction in F. von Benda-Beckmann, K. von Benda-Beckmann and A. Griffiths (eds.), Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World (2005), 1 25 at19.

2 1. Introduction Malta and the Rescue of Unwanted Migrants at Sea 539 In recent decades, the margins of the Mediterranean region have gone through enormous changes: previously taken for granted national borders became contested external borders of the European Union (EU). National law was complemented or replaced by European law in the fields of border control and refugee protection. On the one hand, legal migration routes to the EU have been restricted; on the other, the control of informal migration routes in the Mediterranean Sea has been extended. Countries located in the centre of the EU, such as Germany, have had declining numbers of asylum applications since In contrast, member states at the external borders have increasingly become the neuralgic spaces of migration and refugee protection: in 2008, Malta and Italy received more asylum applications than ever before. The effects of the relocation of borders and of the European refugee protection system have been especially strong around the Mediterranean Sea: in particular, gaining access to the refugee protection systems of the EU has become increasingly difficult for potential refugees. 3 The security forces in the border region are currently operating in unstable legal and political contexts in which the principle of non-refoulement 4 and other aspects of refugee protection at sea are being renegotiated. The protection of refugees from being returned to places where they might be subjected to persecution and the prohibition of sending them back without considering their proposal for asylum is contested. According to the UNHCR (United Nations High Commissioner for Refugees) and human rights representatives, the question of responsibilities with regard to potential asylum seekers crossing the border region is clear: where a state exercises jurisdiction, it is responsible for all potential refugees and their asylum claims. 5 This is a point of contention in the border region and between the European member states. It is unclear where and how to intercept migrants 6 boats 3 M. Garlick, The EU Discussions on Extraterritorial Processing: Solution or Conundrum? (2006) 18 IJRL , at The principle of non-refoulement is set out in the 1951 Convention relating to the Status of Refugees: No Contracting State shall expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion (art. 33(1)). 5 UNHCR, Advisory Opinion on the Extraterritorial Application of the Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 Jan. 2007, available at: < (last accessed 25 Jan. 2011); and R. Weinzierl and U. Lisson, Grenzschutz und Menschenrechte eine europarechtliche und seerechtliche Studie (German Institute for Human Rights, 2007), In this article, the term migrant will be used as an umbrella term for labour migrants and refugees alike. A clear division between labour migrants and refugees is not, and has never been, possible. At sea, UNHCR is referring in this regard to mixed migratory movements (UNHCR, Addressing Mixed Migratory Movements: A 10-Point Plan of Action, 2007).

3 540 Silja Klepp and which state is obliged to examine asylum claims in adherence to international refugee law. Responsibilities are particularly uncertain where a state is engaged in joint operations, operations in the territorial waters of another state, or operations on the high seas. 7 Dilemmas also arise when migrants are rescued from shipwrecked boats. The legal responsibilities to rescue migrants at sea should be clear but the actions taken vary according to which Search and Rescue (SAR) area the shipwreck occurs in. Further, enforcing the duty to rescue shipwrecked migrants has proved problematic. In several cases, controversies regarding the responsibility of rescuing shipwrecked irregular migrants delayed the rescue operations. In the Mediterranean Sea, the policies of border control and the right of sovereign states to control their territory clash with the claims of a functioning European refugee protection system and with some aspects of the humanitarian law of the sea. The renegotiation and modification of the human rights of migrants and refugees, as well as the practices of security forces at sea, have recently become a key concern. Processes of decision making and practices in the area of Search and Rescue will be analyzed in this article by combining the empirical study of border regions with a legal anthropological perspective. The concept of a multi-sited arena of negotiation 8 has proved useful in analysing the migration policies of the EU, national Maltese policies and rescue operations across the Mediterranean Sea. This perspective allows a view of the interconnections and power relations between local, national and supranational actors that acknowledges the complex character of the phenomenon of sea migration, SAR activities in the Mediterranean Sea and the development of law. Furthermore, the article sheds light on the difficulty of access to protection for refugees in the EU and the severe consequences for migrants and refugees lives that arise at the borders of the EU. In recent years, since the establishment of the Schengen aquis, 9 refugees access to EU territory and to an asylum procedure has become one of the most serious problems for an effective EU refugee protection system. 10 The broad, interdisciplinary perspective on the interpretation and development of law covers the relevant actors responsible for the creation and 7 Commission of the European Communities, Communication from the Commission to the Council, Reinforcing the management of the European Union s Southern Maritime Borders COM (2006) 733 final, Benda-Beckmann et al., above n. 2, 9. 9 The Schengen acquis is formed by the Schengen Agreement 1985 and the Schengen Convention 1990 and the rules adopted on their basis and the related agreements. It lays down the arrangements and safeguards for implementing freedom of movement and border control at internal and external EU borders. Since 1999, the Schengen acquis is part of the institutional and legal framework of the EU, by virtue of a protocol to the Treaty of Amsterdam. 10 European Council on Refugees and Exiles, Defending Refugees Access to Protection in Europe, available at: < (last accessed 20 Jan. 2010).

4 Malta and the Rescue of Unwanted Migrants at Sea 541 change of law. These include official institutions and law experts, such as judges, but also security forces in the border region. This inclusive approach illustrates the important interactions between micro- and macro-level, local and national interest and the conflicts that influence the implementation and interpretation of law. 11 The approach also covers actors and practices that seem to be marginal at first glance, but that may have far reaching influences and effects. This extended perspective on law shows how law is developing in society and how diverse actors are creating law and practices that are relevant for refugees. Furthermore, it allows the detection of internal logics and constraints that determine the incidents and developments in the Mediterranean Sea. The logic of interaction and of operation in the sea border region handling the phenomenon of boat migration will become more accessible in this way; making it easier to find ways to better protect migrant s and refugee s rights and lives at sea. 1.1 Methodology Triangulating perspectives guarantees an insight into the complex and highly politically charged subject of boat migrants and SAR activities in Malta. This is achieved by analysing different policy documents and the legal framework dealing with sea migration and EU border policies. Furthermore, various actors with different perceptions and viewpoints on sea migration in the Mediterranean were interviewed. These included Maltese security officials, members of the Maltese government and employees of Maltese institutions, employees of NGOs and International Organizations, migrants and fishermen who rescued boat migrants. Field research in Malta on the EU in the Mediterranean Sea in relation to border control and refugee protection was carried out in September and October Field research had also been conducted in Libya in October and November 2006, and in Southern Italy from March to July Sixteen detailed semi-structured interviews were conducted in Malta. Insights into the operational aspects of SAR practices were mainly obtained from interviews with Commanders of the Armed Forces of Malta (AFM), the director of UNHCR Malta and a Maltese journalist. These interviews lasted at least one hour and were recorded. The interviewees consented to publication, with the information attributed to them. However, the names of the three Commanders have been withheld. After introducing the research perspective of this paper, the situation of migration movements in the Mediterranean Sea between Libya, Italy and Malta is outlined briefly below. 11 F. von Benda-Beckmann, K. von Benda-Beckmann, Transnationalisation of law, globalisation and legal pluralism: a legal anthropological perspective in C. Antons, V. Gessner (eds.), Globalisation and resistance: Law reform in Asia since the crisis (2007), at 54.

5 542 Silja Klepp 2. Trends in sea migration across the Mediterranean Since the early 1990s, the situation of migrants and refugees in the Mediterranean has become more difficult. Opportunities to enter the territory of the EU legally were restricted with the implementation of the Schengen acquis and the new visa regulations for non-eu nationals in the Mediterranean region. In addition, irregular migration routes across the Mediterranean Sea from Africa to Europe were closed by military controls. Many of the more direct and less dangerous routes, such as between Tunisia and Italy, are now rarely used. Other routes, from West Africa to the Canary Islands, from Turkey to Greece, and from Libya to Italy, now constitute the most important southern routes into the EU today. 2.1 The situation between Libya, Italy and Malta In recent years, border controls have been enhanced by European and national security forces and new policies have been established, such as co-operation with North African transition states and countries of origin. 12 In the same time-period, migration routes proved to be very flexible. Since 2001, most arrivals in the Mediterranean region have been registered in Sicily, mainly on the small island of Lampedusa. However, despite these measures, the numbers of arrivals in Italy and Malta increased greatly in 2008, rising to 36,952 arrivals in Italy 13 (see table) and 2,704 in Malta. This was the highest number recorded in Malta since the first arrivals in In 2006, 1,694 boat migrants were detected by the AFM, this rose to 1,780 in Table Landings on Sicily and the minor Sicilian islands Numbers of the Italian Refugee Council (CIR) and UNHCR However, it should be noted that, contrary to media coverage of the phenomenon, sea migration in the Mediterranean accounted for only a small proportion of the undocumented migrants in Italy, or in other parts 12 P. Cuttitta, The Case of the Italian Southern Sea Borders: Cooperation across the Mediterranean? (2008) 17 Migraciones, Documentos CIDOB Sbarchi, allarme del Viminale: Nel 2009 sono raddoppiati, La Repubblica, 24 Sept Médecins Sans Frontières, Not Criminals Médecins Sans Frontières exposes conditions for undocumented migrants and asylum seekers in Maltese detention centres (2009), available at: < (last accessed 20 July 2010), 5.

6 Malta and the Rescue of Unwanted Migrants at Sea 543 of Europe. The number of overstayers, migrants who remain in the Schengen area after their visa has expired, is much higher. 15 Libya, originally only a country of destination, has become an important transit country for migrants from Sub-Saharan Africa attempting to reach Europe. Libyan citizens rarely migrate by boat. Many migrants come from areas of either war or crisis. In 2008, for example, 1,442 of the 2,704 migrants arriving in Malta by boat were Somalians. Most of those arriving in Malta claim asylum, and nearly 60 per cent acquire a refugee status, or a subsidiary protection status. 16 One factor that is probably important in the rising number of boat migrant deaths is the ever smaller boats used to cross the Mediterranean. In order to evade border control, fibre glass boats of only 6 7 meters are now being used. They carry persons and usually no member of the criminal network organizing the transfer from Libya accompanies the boat. 17 This means that often there is nobody with nautical experience onboard. The crossing of the Mediterranean Sea under these conditions is therefore characterized by high levels of risk. There are crossings that are quite short and proceed smoothly. However, others end in tragedy, with the death of all passengers. Small deviations from the route, worsening weather conditions, or problems with the, often small, motors all increase the risk for passengers. When boats are in danger, the international system of SAR should be activated. These procedures are outlined below. 3. The international system of Search and Rescue The humanitarian law of the sea dealing with Search and Rescue is covered by various maritime laws, soft laws, and traditions, which are put into practice by various actors. The regime is monitored and formally developed by the International Maritime Organization (IMO) of the United Nations, but the organization has few enforcement capacities. It is the coastal states that have a leading role in realizing and implementing the regime: as members of IMO, and as signatories to crucial conventions on the law of the sea and of shipping, the coastal states are obliged to establish a functioning maritime SAR system. They are responsible for distress communication and co-ordination in their area of responsibility (SAR area) and for the rescue of persons in distress at sea around their coasts. These arrangements should include the establishment, operation 15 Minstero dell Interno, Primo Rapporto sugli immigrati in Italia (2007), available at: < interno.it/ /sites/ /0673_Rapporto_immigrazione_BARBAGLI.pdf> (last accessed 10 Aug. 2010). 16 Interview with Mario Friggieri, Director, Maltese Refugee Commission (REFCOM), 3 Oct. 2007, La Valletta. 17 P. Monzini, Il traffico di migranti per mare verso l Italia. Sviluppi recenti ( ) (2008) CeSPI Working Papers 43, 10.

7 544 Silja Klepp and maintenance of such SAR facilities as are deemed practicable and necessary. 18 The international SAR regime relies on the naval security forces or the coast guards of the coastal states. It also relies on the commitment of all seamen to the longstanding maritime tradition to rescue people in distress, and on their inclusion into the SAR system. All vessels at sea, including private commercial vessels, are part of the SAR system and have a duty to rescue. The United Nations Convention on the Law of the Sea of 1982 (UNCLOS) codifies this commitment: Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew, or the passengers... to render assistance to any person found at sea in danger of being lost The International Convention on Maritime Search and Rescue (SAR- Convention) of 1979 requires the state parties to... ensure that assistance be provided to any person in distress at sea... regardless of the nationality or status of such a person or the circumstances in which that person is found 20 and to [...] provide for their initial medical or other needs, and deliver them to a place of safety. 21 Also, the captain of every vessel at sea has the duty to provide aid to all people in distress without distinction of status or conditions and, if possible, to inform the responsible SAR authorities on the SAR action. 22 In Germany, Australia, Norway, the UK and the United States, ship s captains can be accused of denial of assistance under national law if they don t rescue persons in distress. 23 It is clear that the international SAR system and the humanitarian law of the sea require that assistance be provided to any person in distress at sea. Nonetheless, political discussions over the responsibilities of the coastal states to rescue irregular migrants in distress and to disembark them in a place of safety can hinder or delay immediate SAR actions. Furthermore, uncertainties linked to the concept of distress, which is not clearly defined in international law, 24 leave room for interpretation on whether particular boat migrants should be rescued or not, as will be discussed below. As the political atmosphere on the island of Malta is crucial to the behaviour of all actors involved in issues regarding sea migration, including SAR actions, some background information on the Maltese situation concerning migrant landings is needed before discussing SAR questions further. 18 International Convention on the Safety of Life at Sea (SOLAS Convention) (1974), ch. V. 19 United Nations Convention on the Law of the Sea (UNCLOS Convention) (1982), art SOLAS Convention, above n.18, ch Ibid., ch Ibid., ch. V. 23 M. A. Harry, Failure to Render Aid in US Naval Institute, Proceedings (1990), 65-8, quoted in M. Pugh, Drowning not Waving: Boat People and Humanitarianism at Sea (2004) 17 JRS Pugh, ibid., 59.

8 Malta and the Rescue of Unwanted Migrants at Sea 4. We could be taken over a small island under pressure 545 Although Malta is a small island, its role within the migration system of the Mediterranean Sea should not be underestimated, especially in SAR matters. This very densely populated country 25 has an enormous SAR area. The relatively small Maritime Squadron of the AFM, consisting of 300 men and women, has to cover 250,000 km², reaching from the Tunisian coastal waters almost to the Greek island of Crete. 26 All migrants crossing the Mediterranean from the African coast to reach Italy have to pass through the Maltese SAR area. The reasons for this enormous SAR area are historical and are also connected to the lucrative income Malta derives from its Flight Information Region (FIR). The size of the SAR region is bound to the Maltese FIR. Malta is earning around Є8.23 million yearly for air traffic passing over its SAR/FIR region. 27 From 2002 to 2008 approximately 10,700 migrants landed on Malta or were rescued by AFM in the Maltese SAR area. Nearly all migrants landing on Malta intended to reach Italy, but bad weather conditions or other unforeseen circumstances prevented them from reaching their destination. In recent years, a heated political atmosphere regarding migrants arriving by boat has been observed on the island. Most migrants come from crisis areas, such as Somalia, Sudan and Eritrea, and request asylum in Malta. 28 As the spokesperson of the Maltese Ministry of Interior explained in an interview, people fear that we could be taken over. Because of our size, people are seeing more of these immigrants. 29 It could be said that a climate of psychosis 30 has developed on the island regarding the phenomenon of irregular migration. Racially motivated crimes, like arson attacks on the cars of the Jesuit Refugee Service (JRS), or the house of a refugee advocate, have occurred since 2002, when arrivals in Malta became more regular. 31 The general perspective and policy of the Maltese government in dealing with arriving migrants was explained in an interview with Martin Scicluna, official advisor to the Maltese government on irregular immigration. He outlined the fears of the Maltese population regarding migration and 25 Malta has approximately 410,000 inhabitants on an area of 316 km². 26 Shrinking Malta s search and rescue area is not an option, Times of Malta, 26 Apr Italy is applying pressure directly and indirectly. 27 F. Texeire, At the Gate of Fortress Europe: Irregular Immigration and Malta (Rennes 2006), Médecins Sans Frontières, above n. 14, 29 Interview with Joe Azzopardi, spokesperson, Ministry of Justice and Internal Affairs, 18 Sept. 2007, La Valletta. 30 Texeire, above n. 27, Interview with Pater Paul Pace, Director, JRS Malta, 23 Sept. 2007, Bikakara.

9 546 Silja Klepp emphasized Malta s position on the front line of European border control. 32 In interviews with representatives of the Maltese government it became clear that the government will do everything possible to avoid further migrants arriving. The Maltese government has dealt with the phenomena on the national level by introducing a rigorous detention policy. All migrants landing in Malta, including asylum seekers, must be detained. Detention usually lasts 18 months for adults, and 12 months for the asylum seekers amongst them. 33 On the European level, Malta feels disadvantaged by the Dublin II Regulation. 34 Malta has made several appeals to other member states for more burden sharing agreements in asylum issues, stressing that the country cannot handle the situation alone. 35 The aim of the Maltese efforts is to negotiate special terms for the island, due to its size and its population density, and resettlement for most of the migrants in other EU countries: EU burden sharing is extremely important to us. Our voice may be limited but, you know, we are constantly harping on this. (...) We are pressing on two issues. The first is the revision of the Dublin II convention, which we think is inadequate. It takes no cognisance of the special circumstances of Malta and possibly of other front-line states. That means more fairly revised burden sharing. And secondly, if only the 26 of all member states would take 25 or 30 a year, there would be no more problems anymore. (...) 36 A resolution of the European Parliament, from April 2006, came to the conclusion that the Dublin II Regulation and its effects are not acceptable for Malta and other border countries. The Parliament therefore invited the European Commission to revise the Regulation according to the interests of the Southern and Eastern border countries of the EU, 37 but this has not happened to date. 5. Who is responsible for migrants in distress? In recent years, one of the most controversial issues in diplomatic relations between Malta and other countries has been the responsibility for 32 Interview with Martin Scicluna, official advisor on irregular immigration, Maltese government, 2 Oct. 2007, La Valletta. 33 European Parliament resolution on the situation of refugee camps in Malta, EP res. doc. no. P6_TA (2006) 0136 [for European Parliament Resolutions]. 34 The Dublin II Regulation was adopted by the member states of the EU in The Dublin II Regulation aims to determine the member state accountable for an asylum claim and provides for the transfer of an asylum seeker to that member state. Usually, the responsible member state will be the state through which the asylum seeker first entered the EU. 35 Council of the European Union 5689/09, 23 Jan Interview with Martin Scicluna, above n EP res., above n. 33.

10 Malta and the Rescue of Unwanted Migrants at Sea 547 the disembarkation of migrants rescued in the central Mediterranean Sea. In 2001, this issue raised difficult questions in another region of the world, when a diplomatic dispute arose between Norway and Australia. In August 2001, the Norwegian cargo ship MV Tampa rescued 433 Afghan boat migrants in distress. While heading for the next place of safety, the Australian Christmas Islands, the vessel was denied entry and disembarkation of the Afghan refugees was refused by the Australian authorities. The shipwrecked migrants were finally transferred to an Australian navy vessel and were taken to the Pacific island of Nauru, which is an independent state. In September 2001, the much contested Border Protection Act was passed to create a legal basis for such measures. The Norwegian government praised the captain of the MV Tampa for his courage in rescuing persons in distress, while the Australian authorities threatened to take him to court for human trafficking. 39 This incident paved the way for global discussions at the IMO level on clearer regulations for the disembarkation of migrants rescued by vessels of the civil shipping industry. 40 Similar events occurred several years later in the Mediterranean region: In July 2006, the Spanish trawler Francisco Catalina rescued fifty-one migrants from a disabled boat. The trawler headed for Malta to disembark the passengers. The Maltese army stopped the vessel 60 miles off the coast claiming that the migrants could not be disembarked on Malta. The Maltese government argued that the migrants had been rescued within the Libyan SAR area and that they should be taken to Spain. The situation onboard rapidly became unbearable as hygiene deteriorated and medical emergencies occurred. After one week of diplomatic quarrels the trawler headed for Spain, where most of the migrants applied for asylum. 41 Similar incidents have occurred in subsequent years. On 16 April 2009, the cargo ship Pinar E, registered in Panama by Turkish owners, was refused entry to Malta with 154 migrants onboard. Malta argued that the migrants were picked up 41 nautical miles off Lampedusa. The Italian authorities also refused entry into Italian waters, insisting that the migrants should be taken to Malta, since it was responsible for this SAR region. 42 Italian ministers yielded after a four-day stalemate, and allowed the Turkish cargo ship to enter Italy s territorial waters. 38 Border Protection (Validation and Enforcement Powers) Act 2001, C2004A M. Giannacopoulos, Tampa: Violence at the Border (2005) 15 Social Semiotics 29 42, at Interview with Prof. David Attard, Director, IMO International Maritime Law Institute (IMLI), Msida, Malta, 25 Sept. The interview was not recorded. 41 Weinzierl, above n. 5, Migrants standoff: PM insists Malta did its duty, Times of Malta, 20 Apr

11 548 Silja Klepp 5.1 The amendments to SOLAS and SAR The cases described above involved civil shipping industry seamen taking shipwrecked migrants onboard and experiencing difficulties in subsequently disembarking them. Such circumstances involve a significant loss of time and money for ship owners and create uncertainties regarding the consequences of rescue operations. The result is a weakened international SAR system, which is built on the principle that all individuals at sea have to assist people in distress. For this reason, the IMO decided to amend the SAR and SOLAS-Conventions, which are crucial for the international SAR-system. The amendments were adopted by the Maritime Safety Committee (MSC) of the IMO on 20 May 2004 and came into force on 1 July In order to make the responsibilities of coastal states more transparent, the new rules determine that the state responsible for a certain SAR-area is also responsible for finding a place of safety to disembark shipwrecked people. It is now clearly regulated that each particular SAR-state needs to provide a harbour on its own territory where people can be safely disembarked or has to negotiate with other states to find such a harbour. Where a person can be disembarked, as well as the definition of a place of safety, are other important aspects. This highlights how closely the humanitarian law of the sea and refugee law are interconnected when it comes to migration at sea. Usually, the closest port of call might be seen as a place of safety. However, if boat migrants are potentially in need of asylum protection, this has to be taken into consideration. In the Guidelines on the Treatment of Persons Rescued at Sea (Resolution MSC. 167 (78) (2004)), 44 which were adopted together with the SAR- and SOLASamendments, it is stated that: A place of safety is a location where rescue operations are considered to terminate, and where: the survivors safety or life is no longer threatened; basic human needs (such as food, shelter and medical needs) can be met; and transportation arrangements can be made for the survivors next or final destination. 45 Furthermore, regarding the needs of asylum seekers rescued at sea, the guidelines are more concrete: Disembarkation of asylum-seekers and refugees recovered at sea, in territories where their lives and freedom would be threatened should be avoided. 46 This passage actually includes the principle of non-refoulement of the Convention Relating to the Status of Refugees (The Geneva Convention) of All boat migrants should have the opportunity to claim asylum and should not be taken to their home country or a country where 43 MSC res., 153 (78) (2004). 44 MSC res., Guidelines on the Treatment of Persons Rescued at Sea 167 (78) (2004). 45 MSC res., ibid., para Ibid., para

12 Malta and the Rescue of Unwanted Migrants at Sea 549 they risk human rights violations. According to practical information given to the ships masters by UNHCR and IMO, in cases where rescued boat migrants want to claim asylum, they should inform the next Rescue Coordination Centre responsible for SAR actions, but should also contact UNHCR for further assistance. 47 In disputes over the place of safety and rescued migrants in the Mediterranean Sea, these matters are of great importance when it comes to Libya. Libya has no asylum system and violates basic human and refugee rights. 48 Therefore, it cannot be regarded as a place of safety for migrants crossing the Mediterranean. Unfortunately, many migrants crossing the Mediterranean from Libya get into difficulties while still in the Libyan SAR region. 5.2 The Maltese point of view Although the Amendments to the International Convention for the Safety of Life at Sea 49 aim to facilitate and support the position of seamen who assist people in distress and to smooth the process of disembarkation, Malta has not signed these amendments. The main point of resistance is Malta s vast SAR-area. The government of the island has always insisted that rescued migrants should be taken to the nearest safe port from the place of rescue. 50 The Maltese government also differs in its view of determining a place of safety for the protection of refugees, as various Commanders of the AFM, the responsible Maltese SAR authorities, stated. Commander One accused UNHCR of connecting matters of SAR and matters of refugee policy. He insisted that migrants rescued in Libyan SAR waters or in Libyan coastal waters should be disembarked in Libya: UNHCR has said that Libya is not a safe place for disembarkation. So what does that mean? That anyone saved in Libyan SAR has to be disembarked in Malta as well? They are not separating the two issues! There is a safe place in terms of SAR and there is a place of safety in terms of humanitarian law. These are two different things. 51 The Maltese military command and government seem to deny the mutual relevance of the humanitarian law of the sea and refugee law, which plays a big role in defining a place of safety. Malta insists on separating refugee 47 UNHCR/IMO, Rescue at Sea, A guide to principles and practice as applied to migrants and refugees (2006), S. Klepp, A Contested Asylum System: The European Union between Refugee Protection and Border Control in the Mediterranean Sea (2010) 12 European Journal of Migration and Law MSC res., above n Dept. of Information, Malta, Another Amnesty International Report riddled with inaccuracies, misinformation and glaring omissions, Press Release 0985 (2010), available at: < mt/en/press_releases/2010/05/pr0985.asp> (last accessed 19 July 2010). 51 Interview with Commander One, AFM, 5 Oct. 2007, Headquarters, Luqa Barracks, Malta.

13 550 Silja Klepp law matters and SAR matters in dealing with migrants in distress. As can be seen, though, in the cases described above, the international SAR regime is also bound by refugee law. In SAR operations, refugee law must be taken into account. The commander primarily attacked UNHCR for their repeated statement that, since there is no asylum system in Libya and detention conditions violate basic human rights standards, Libya cannot be considered a place of safety for rescued boat migrants. However, the disembarkation of migrants in Libya would be a case of refoulement and would violate the Convention Relating to the Status of Refugees, which is also the legal basis of Maltese and European refugee law. 52 Part six will discuss how political pressures and circumstances are linked to the Maltese position of rejecting the SAR amendments. Anxieties regarding the place of safety and disembarkation of migrants rescued in the central Mediterranean Sea could hinder rescue actions, especially by vessels of the civil shipping industry. Another issue, which links directly to possible fatalities at sea, is the negotiations between Malta and Italy about the responsibility for rescuing migrants in imminent danger and distress at sea. Italy regularly conducts SAR actions in the Maltese SAR area to support Malta. In 2006, the Italian coast guards (Guardia Costiera) carried out 289 operations in the context of the Search and Rescue of migrants in distress in the Mediterranean Sea. It is remarkable that 135 of these operations were realized in the SAR area of Maltese responsibility. 53 Nonetheless, discussions about which country should take action can delay SAR measures in situations where delays can cost lives, especially since there are no fixed mechanisms to automatically delegate or regulate responsibilities. All actions taken by Italy in the Maltese SAR area are based on ad-hoc agreements between the SAR forces of the two countries. 54 There are no written agreements or official regulations governing Italian rescue operations in the Maltese SAR area. In May 2007, an Italian vessel saved twentyseven migrants who were clinging to the tuna pens of a Maltese trawler which did not want to take the migrants onboard. The migrants, who were found on the border of Libyan and Maltese SAR waters, were rescued after three days, following a diplomatic controversy between Libya, Malta and Italy. One man died of dehydration. 55 After having discussed legal quarrels and insecurities regarding the disembarkation of boat migrants and the definition of a place of safety, further 52 UNHCR, UNHCR deeply concerned over returns from Italy to Libya, Press Release, 7 May 2009, available at: < (last accessed 19 July 2010). 53 Comando Generale del Corpo delle Capitanerie di Porto, Relazione Attività Antimmigrazione Anno 2006 (2007), Internal Paper of Guardia Costiera, provided by Commander Calvinare, IMRCC Rome, 26 June Interview with Commander Calvinare, Comando Generale del Corpo delle Capitanerie di Porto, 26 June 2007, Rome. 55 Tre giorni fra le onde le navi non ci aiutavano, La Repubblica, 28 May 2007.

14 Malta and the Rescue of Unwanted Migrants at Sea 551 facts from 2007 will be presented. They illustrate the problems of the SAR system in the Mediterranean Sea at the operational level, problems that are often not apparent to the public. The Maltese Commanders of the AFM, who are responsible for SAR actions at sea, seem to be bound by a strong commitment to save migrants in distress. The three Commanders interviewed all agreed that political issues should never interfere in SAR actions and that it was a humanitarian duty founded on and backed up by international law to immediately rescue shipwrecked persons. As they stated, political aspects should only play a role after the rescue, once the migrants are safely disembarked. 56 Nonetheless, political discussions regarding SAR responsibilities, and the heated atmosphere on the island regarding irregular migration, shape the behaviour of the AFM, as this study reveals. Legal loopholes and avoidance measures are used to sidestep SAR obligations. As a consequence, there have been incidents where AFM practises impeded or delayed SAR actions, with serious consequences for migrants, as described below. 5.3 What does SOS mean to them? Malta, as a country with a strong shipping tradition, has a small but highly professional Maritime Squadron. As Commander Two stated during an interview, in contrast to other European states, the military in Malta is also involved in policing. Due to the small size of the country, the AFM is the sole agency with the resources to carry out complex rescue operations at sea. Only the AFM has the necessary vessels, helicopters and aircrafts at their disposal. 57 The Commander explained that the Maltese navy consists of nine ships and 300 men and women. It is no surprise that rescuing over 8,000 migrants between 2002 and represented a great challenge to the Maltese SAR authorities. 59 However, Commander Two underlined that as people of the sea, his troops feel committed to saving every person in distress, and all irregular migrants. As argued above, some negative aspects regarding SAR activities and the high number of fatalities at sea amongst boat migrants are caused by the large Maltese SAR area and the limited resources of the AFM to cover their responsibilities. As the spokesperson of the Ministry of Interior stated, conservative Maltese estimates assume 600 to 700 fatalities per year in the area of Malta, Italy and Libya. 60 When asked for possible explanations for 56 Interview with Commander One, above n. 51. Interview with Commander Two, AFM, 21 Sept. 2007, Headquarters, Luqa Barracks, Malta. Interview with Commander Three, 5 Oct. 2007, Headquarters, Maritime Squadron, military harbour, La Valletta. 57 Interview with Commander Two, ibid. 58 Ibid. 59 Ibid. 60 Interview with Joe Azzopardi, above n. 29.

15 552 Silja Klepp the fatalities at sea in recent years, Commander Two declared, in a suddenly angry tone: Who has told you that there are so many people dying at sea? So far we have rescued 58 boats! That s 1,551 people. If the numbers carry on like that... We had the worst August on record. 61 His outburst was surprising, since the number of fatalities at sea are well known to Maltese civilians, and even more familiar to the navy. After interviewing Commander Two, further information was sought about the situation at sea and the work of the AFM from representatives of other institutions. Neil Falzon, a representative of UNHCR in Malta, illustrated how the UNHCR of Malta has actually become a maritime rescue organization. 62 He stated that there would otherwise be a lack of adequate organizations that could take care of the situation at sea. During the interview he vividly described which moments he feared most during his daily work: Many times we receive calls in the office... Often directly from boats approaching. I mean, I pick up the phone and they say UNHCR, UNHCR we are sinking. Can you imagine my reaction? I hear people shouting in the background and I panic. Or we receive calls from friends or relatives in Malta saying that they are arriving. So what do we do? We have a basic procedure: First we try to get all the information, number of people onboard, gender, age, nationalities and we pass all the information to the AFM. What we have seen this year particularly is that the AFM is very reluctant to saying automatically ok, yes, we go and rescue them. They ask: what kind of problem do they have? I say the engine stopped, and they say ok, we will look after it. And then I call an hour later, because I call on an hourly basis. We call the AFM every hour. And they usually tell us, yes they have made contact with the boat, they didn t want to be rescued, we will not rescue them, they are moving steadily north. And then they will leave them. 63 The journalist Karl Schembri sees this AFM practice as passing the buck to the Italian navy. He has investigated several reports on SAR failures by the AFM, describing the operation of the Maltese navy as a calculation : if there is any chance that a boat will have enough fuel to reach Italy, the AFM will take the risk of not immediately rescuing the migrants and will pass the problem on to the Italians, expecting the Italian security forces to take care of the arriving boat. One of the Maltese navy Commanders also described how the AFM often proceeds when it is informed about a boat entering its SAR area: the AFM goes out with an offshore vessel. They approach the boat with a smaller boat and try to communicate with the people onboard. Very often the migrants want to continue their journey north in order to reach Italy, 61 Interview with Commander Two, above n Interview with Neil Falzon, UNHCR representative Malta, 26 Sept. 2007, La Valletta. 63 Ibid.

16 Malta and the Rescue of Unwanted Migrants at Sea 553 as Commander One elucidated. In these cases the AFM provide food, water and sometimes fuel for the boat and let them continue their journey to Italy. They inform the Italian SAR authorities and accompany the boat up to Italian SAR waters. 64 As described above, the duty of rendering assistance is clear in cases of distress at sea. The SAR Convention defines the term distress as [a] situation wherein there is a reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance. 65 However, this definition leaves room for interpretations in favour of non-intervention. Customarily, ship masters are expected to be best placed to exercise their own judgment and reach an autonomous decision on rescues. 66 Nonetheless, the AFM practice described above can have fatal consequences for travelling migrants. UNHCR representative Neil Falzon identified the weak points of this method. He was aware of several incidents where migrants boats had been identified or approached by the AFM but subsequently appear to have sunk. 67 One of these boats was called the phantom ship (barca fantasma) by the Italian media. The incident of the phantom ship occurred in May A photograph taken by the AFM, which later reached the press, showed fifty-three men who were in distress on their small boat in Maltese SAR waters. 68 Neil Falzon commented: The boat vanished. It was the famous boat; there was a photo in the newspapers.... They were bailing out water, they were in evident danger. The Maltese insisted that there was no SOS. Come on! They have a very restricted interpretation of what SOS means.... I think that they literally want people to say: Yes please save us! Any other sign that the boat might not make it is a sign for them that they can help them but not rescue them. I mean the photo was taken by the AFM themselves. There was a man with a red T-shirt; there were buckets with which they were bailing out water. This boat vanished! We have no idea where this boat went. Our colleagues in Libya went to every single detention centre, everywhere, asking for that boat, and they didn t find them. And like that boat, we are sure there are many, many more. 69 Interviewed about the incident of the phantom boat, Commander One confirmed that the AFM had taken a photograph of the boat from an aircraft. However, he refused to believe that this boat was in distress, explaining AFM s definition of distress at sea: Distress is the imminent danger of loss of lives, so if they are sinking, it s distress. If the boat is 64 Interview with Commander One, above n SAR, annex, ch. 1, para , Pugh, above n. 23, Interview with Neil Falzon, above n Weinzierl, above n. 5, Interview with Neil Falzon, above n. 62.

17 554 Silja Klepp not sinking it s not in distress. Even if it s six meters long and has 30 people onboard. 70 He confirmed that the Italian navy has a different perception; they would rescue every heavily overloaded boat. How should the AFM react if the migrants onboard don t want to be rescued by the Maltese navy? he asked. In contrast to the opinion of the Maltese navy on the issue, the IMO emphasises that even if a ship s passengers show no sign of distress, the suspicion of trafficking and transport in unsafe conditions only entitles states to take action in accord with humanitarian principles. 71 Regarding communication with migrants at sea by the AFM, the Maltese journalist, Karl Schembri, documented a case, in November 2005, which attracted great attention in the Italian media. The journalist photographed the official AFM logbook registering the orders given from the headquarters by radio to rescuers who were sent to track a boat on that day. The entries in the log book showed that the order - coming from Commander Two, who was coordinating the SAR action from the AFM operations room at Luqa Headquarters - was to keep at distance from the boat, which was carrying 200 migrants in force six winds on 17 November The Italian SAR forces were informed too late about a boat approaching their SAR region. The next day, the Maltese and Italian press published critical reports about the shipwreck of the migrants. Nine of them had been found dead along the coast of Pozzallo, Sicily, between twenty and thirty of them were missing, and 177 had been found on land, among them, five children and three women. In the arguments that followed, the Maltese parliamentary secretary stated that the migrants had not wanted to be rescued by Malta. Karl Schembri disagreed: The day after in parliament, Tony Abela, the parliamentary secretary who is responsible for the army, said that the immigrants had refused assistance. That was an outright lie. The migrants couldn t refuse assistance because they were never asked The heated negotiation process When is a boat in distress and when do passengers have to be saved? The controversy regarding these questions of when to rescue and when not to rescue people highlights how heated the negotiation process over irregular migration, border protection and the humanitarian law of the sea has become in the Mediterranean Sea. Looking again at the interview with Commander Two, who became angry when asked about fatalities at sea, 70 Interview with Commander One, above n IOM, quoted in Pugh, above n. 23, Exclusive: November migrants shipwreck tragedy. Keep at distance from boat people, rescuers told, Malta Today, 16 Apr Interview with Karl Schembri, 20 Sept. 2007, Malta Today.