Massimo Starita, Università di Palermo

1. A number of measures concerning search and rescue (SAR) operations and disembarkations following those operations have been incorporated in the “new pact on asylum and migration” (hereafter pact) adopted by the European Commission on 23 September 2020.

This has not happened by chance: as is well known, SAR operations in the Mediterranean Sea have been a key theme and a reason of legal and political disputes between EU Member States and the EU Institutions in recent years. Mediterranean coastal States have demanded solidarity, both in carrying out SAR operations and in relocating rescued people. The Court of Justice assessed that even the temporary measures adopted in 2015 (here and here) relocating some asylum seekers from Greece and Italy, following the so-called refugee crisis, have been breached by several Member States. The European Commission acknowledges today that solidarity has been lacking. The Commission states, inter alia, in the proposal for an asylum and migration management Regulation, that «in 2019, half of all irregular arrival by sea were disembarked following search and rescue operations putting a particular strain on certain Member States solely due to their geographical position».

The pact, presented as a turning point in EU policy (see the political communication accompanying the asylum and migration package), focuses on two main aspects of SAR activities.

Firstly, it addresses the problem of the burden posed by continuing disembarkations on EU Mediterranean States, on their asylum systems, by introducing «a new solidarity mechanism for situations of search and rescue, pressure and crises». Secondly, the pact deals with the operational side of the problem. It promises more resources for SAR activities and asks for a coordinated approach towards NGOs carrying out SAR operations.

In what follows we will discuss the content and limitations of these measures. We will assess their real potential to alleviate the pressure of disembarkations on EU Mediterranean Member States and their capacity to guarantee operative cooperation. The article expresses an essentially skeptical view on both of these points. On the one side, it suggests that the solidarity mechanisms are still surrounded by some uncertainties and that they risk remaining dead letter. On the other side, it flags some ambiguities of the Commission’s approach to NGOs engaged in SAR operations.

2. We will start our short analysis by focusing on the operational aspect of the question.

The first consideration to be made is that, apart from the wish (made in the political communication accompanying the pact, at p. 13) that Frontex will provide increased operational and technical support, and that cooperation and coordination among Member States will be significantly stepped up, the Commission focuses on the relationship between Member States and NGOs engaged in SAR activities. In other words, the pact does not address the main problem embedded in SAR operations, which is the scarcity of public resources and vessels. As a consequence of this scarcity the role private entities  played in this field has become of paramount importance (NGOs as well as operators of commercial vessels: overview here).

The proposed policy towards NGOs is set out in two documents: a communication, that aims at preventing the criminalization of humanitarian actors through some guidance on the interpretation of EU rules on the definition of the facilitation of unauthorized entry, transit and residence; a recommendation, that addresses administrative cooperation among Member States concerning SAR operations carried out by private vessels.

The communication aims to guide the Member States in the interpretation of Article 1 (2) of the “Facilitation Directive”, which provides for the possibility to exempt facilitation of unauthorised entry and transit from being criminalised, when carried out for humanitarian assistance purposes. («Any Member State may decide not to impose sanctions with regard to the behaviour defined in paragraph 1(a) by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned»). The Commission reminds that, according to international law, both treaty and customary law, States have an obligation to require shipmasters flying their flags to provide assistance to people or vessels in distress at sea. Therefore, according to the communication, «it is clear that it cannot be construed as a way to allow humanitarian activity that is mandated by law to be criminalised, such as search and rescue operations at sea» and «in particular, the criminalization of NGOs or any other non-state actors that carry out search and rescue operations at sea, while complying with the relevant legal framework, amounts to a breach of international law, and therefore is not permitted by EU law» (emphasis added).

The communication represents a very positive development, given the increasing trend of criminalizing shipmasters for their assistance to people in distress at sea (here and here). It confirms an analogous position taken by the European Parliament in a resolution of 2018, as well as by the European Parliament and the Council in recital 14 of Regulation No. 656/2014.

As it expresses the official position of a EU institution aimed at increasing the degree of clarity of Article 1 (2) of the Facilitation Directive, the communication, notwithstanding its non-binding nature, produces legal effects. On the one side, the communication reduces national judges’ discretion in the interpretation of Article 1 (2) of the Facilitating Directive by precluding the application of the Acte clair doctrine exception to the obligatory references. As is well known, a national court of last instance is required, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the correct application of EU law is «so obvious as to leave no scope for any reasonable doubt». The case-law of the Court, while giving to the national court the “sole responsibility” to assess this possibility (van Dijk), states that the assessment should be made bearing in mind a number of criteria, including the fact that “every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied” (CILFIT and others).

In our opinion, as acts of an institution, Commission’s interpretative communications and guidelines, notwithstanding their non-binding force, must be considered by a national judge of last instance in reconstructing the EU legal framework. The principle was explicitly stated as for recommendations by the Court of Justice in the leading Grimaldi case. However, it could be applied also to interpretative communications, since the Court of Justice has consistently stated that the content of acts, rather than their nomen juris, is decisive in assessing their legal effects.

In light of the forgoing consideration, it is reasonable to argue that the interpretative communication of 30 September 2020 precludes a national court of last instance from concluding, without deciding to refer for a preliminary ruling under Article 267(3) TFEU, that Article 1 (2) of the Facilitation Directive “clearly” authorizes Member States to criminalise private conducts mandated by international law. It could also be argued that, in application of the principles laid down in Commission v. Italy, the European Commission may initiate infringement proceedings, if a national judge of last instance gives such an interpretation. Finally, while the criteria laid down in the case-law of the Court of Justice are less clear on this point, it could be prospected that such an interpretation is a “manifest” infringement of EU law. Indeed, the communication, read together with the aforesaid similar positions taken by the European Parliament and the Council, could be considered as a factor capable of “characterizing” the situation put before the national judge and leading to State liability for damages caused to private individuals (according to the principles set out in Kobler and Traghetti del Mediterraneo).

On the other side, the communication is beneficial to the European Union, given that it prevents its international responsibility to arise for authorizing the criminalization of a third State national shipmaster.

According to customary international law, States are under the duty to rescue persons in distress at sea (here). This general duty has been incorporated in several international treaties, providing for different obligations on both flag States and coastal States (for an overview see De Vittor and Starita). It will suffice to remind here that, under Article 98 (1) of the 1982 UN Convention on the law of the sea (UNCLOS), every State has to «require the master of a ship flying its flag… to render assistance to any person found at sea in danger of being lost”. Furthermore, coastal States are obliged not to impede foreign ships from stopping and anchoring in their territorial waters when they are rendering assistance to persons, ships, aircrafts in danger or distress, as codified under Article 18 (2) UNCLOS. The aforesaid obligations clearly include – a fortiori – the obligation not to obstruct the shipmasters’ full implementation of the duty to rescue people at sea, in particular, by criminalising them for their humanitarian conduct (the theme is discussed here, at par.2.2.2. and 2.3).

It could be argued that the EU is bound by this general obligation, since it is an international subject. If this was the case, by authorizing its Member States to criminalize shipmasters for their humanitarian activities, the EU would circumvent one of its international obligation and could incur international responsibility (under Article 17 of ILC Draft Articles on the responsibility of international organizations).

However, in our opinion, the communication prevents this risk, given that it contributes to clarify that the Facilitation Directive could not be construed as authorizing unlawful conducts of its Member States, but that, on the contrary, it has to be interpreted “in harmony” with international legal rules and principles (for a different view, under which the adoption of the Facilitators’ Package determined «a structural flaw in the EU definition of the offence of facilitation that cannot be remedied at the level of the interpretation but only through a legislative revision» see here).

3. The clear position taken against the criminalisation of NGOs is counterbalanced – from a political perspective – by the 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. Readers have to be careful not to let themselves be influenced by the heading of the recommendation. Indeed, the Commission does not recommend any cooperation aimed at favouring NGOs activities. The only recommendation’s goal is to strengthen administrative controls on humanitarian vessels on the ground that «it is a matter of public policy, including safety, that these vessels be suitably registered and properly equipped to meet the relevant safety and health requirements associated with this activity, so as not to pose a danger to the crew or the persons rescued» (recital 12 of the recommendation). While it would be unreasonable not to share the Commission’s security concerns, it is less convincing that the Commission does not care about recommending the adoption of any kind of public support that would facilitate the capacity of NGOs to adhere to relevant international standards. It should also be noted that in some situations the safety of vessels’ crew and passengers has been endangered more by the competent States’ delays in determining the place of safety (notwithstanding SAR Convention, section 3.1.9 and IMO guidelines on the treatment of persons rescued at sea, section 3.1) than by the vessels’ adherence to international standards. Being devoid of any promotional policy, the recommendation to reinforce administrative controls could acquire a “punitive” colour (we will come back on this point in our concluding remarks).

4. Let us move now to the second aspect of the question: How does the pact address the imbalances created by the continuing disembarkations on the distribution of the responsibility for examining the applications for international protection?

As very well known, the “entry” criterion (Article 13 of the Dublin III Regulation) is lower ranked in  the hierarchy of criteria laid down by the Regulation for determining the Member State responsible, but it has worked as a kind of “default” criterion. Due to their geographical location and to the application of this criterion, Mediterranean border States have been responsible for examining the most part of applications presented by persons disembarked following SAR operations (as well as, more generally, by persons spontaneously arriving at the borders of these States by sea). It is no coincidence, that Article 13 is the most controversial among the responsibility criteria (see Hruschka/Maiani). Notwithstanding its highly controversial character, the centrality of the entry criterion remains in the proposal for an asylum and migration management, whose Article 21, paragraph 1, reproduces Article 13, paragraph 1, of the Dublin III Regulation. Furthermore, to avoid misunderstandings, paragraph 2 of Article 21 expressly states that «the rule set out in paragraph 1 shall also apply where the applicant was disembarked on the territory following a search and rescue operation».

There are however some changes in the responsibility criteria: the Commission introduces a new criterion based on prior education in a Member State (article 20) and some other criteria are expanded (for example family reunification seems to be expanded by article 2 (g) which includes siblings in the definition of family). Although interesting and welcome, these changes do not seem able to prevent future imbalances in the distribution of the responsibility of examining applications for international protection, in particular applications by persons rescued at sea.

The Commission’s remedy to imbalances is essentially left to the so called “solidarity mechanisms”.

These mechanisms work through a complex procedure (Articles 47-49), which is essentially framed in three stages. First, each year the Commission shall adopt a Migration Management Report «setting out the anticipated evolution of the migration situation and the preparedness of the Union and the Member States» (Article 6, paragraph 4). It is important to note that the Report shall specifically address the migratory flow generated by SAR operations. Before adopting the Report, the Commission shall consult the concerned Member States in order to set out the total number of projected disembarkations in the short term and the solidarity response that would be required to contribute to the needs of the Member States”. The Report shall also set out the total number of applicants for international protection that would need to be relocated in order to assist the concerned States; the Report shall then identify any capacity-building measures which are necessary to assist those States (Article 47).

Secondly, Member States are invited to notify the contributions they intend to make, given a “distribution key” previously established by the Commission on the basis of the size of population and the total GDP (Article 54). However, States are not obliged to offer their contributions in terms of relocations, but are free to combine, respecting their distribution key, relocations and other contributions (capacity-building, operations support, cooperation with third States).

Thirdly, the Commission assembles a “solidarity pool”, considering the contributions offered by the Member States. Where the solidarity contributions fall significantly short of the total contributions needed, the Commission is authorized to convene a solidarity forum, comprising all Member States, in order to invite them to adjust the number and the type of contributions (Article 47). Furthermore, if relocations offered do not reach the 30% of the total number of relocations identified in the Report, the Commission is authorized to oblige Member States to cover «50% of their share calculated in accordance with the distribution key set out in Article 54 through relocations or return sponsorships» (Article 47).

Finally, it has to be underlined that, under the Commission’s proposals, a strengthened solidarity should be guaranteed to Member States under “a migratory pressure” (Article 50) and, a fortiori, to Member States facing a “crisis” in the migration flow (see Chapters II and III of the proposal on a Crisis and Force Majeure Regulation).

At first sight, no reasonable reader could deny that the aforesaid solidarity mechanisms are “the most significant feature of the new proposal on asylum management” (here) and that they are a very welcome reform from the point of view of Mediterranean States. However, at least three observations can help assessing their real redistributive power, i.e. their capacity to remedy injustice in burden sharing among Member States (see also the excellent reflections of Maiani).

First, solidarity mechanisms shall apply only after: (1) disembarkations have taken place; and (2) “pre-entry” procedures have been guaranteed by coastal States. This clearly reduces the capacity of solidarity mechanisms to alleviate the pressure over border States’ national asylum systems. In particular, entry States will be obliged to adopt the screening measures set out in an ad hoc Commission’s proposal (on the screening proposal, see Jakuleviciene). But they will also have to decide whether an application for international protection should be assessed in a normal procedure or in a faster procedure, called “border procedure”, whose features are described in the proposal for a regulation establishing a common procedure for international protection. Indeed, under Article 41 of the Commission’s proposal, the border procedure shall apply in cases of disembarkation following SAR operations, where the applicant poses a risk to national security or public order; or where the applicant has misled the authorities; or where the applicant comes from a third country for which the share of positive asylum decisions in the total number of asylum decisions is below 20 percent.

Secondly, the solidarity procedures leave wide room for manoeuvre to negotiations between Member States. Indeed, in its “solidarity pool”, the Commission will essentially endorse the contributions unilaterally decided by governments. Furthermore, as reminded above, under the proposed mechanisms, the Commission will be able to guarantee only the 50% of the relocations needed. This means that, while border States are obliged to take care of persons rescued at sea, the success of the solidarity mechanism will still depend, mostly, on the other Member States willingness, a virtue that they have not shown in the recent past.

Thirdly, the Commission’s decision on whether a Member State is under “a migratory pressure”, or a “crisis” in the migration flow, is highly discretionary. This is particularly clear for situations of the first kind. Under Article 50 of the proposal for an asylum and migration management, eleven quantitative criteria and other ten qualitative criteria will be combined in order to assess the existence of a migratory pressure (it is difficult to say in advance if the “substantiated information” on the basis of which the Commission will assess the existence of a situation of crisis, under Art. 3, para. 8 of the proposal for a regulation addressing situations of crisis and force majeure, will be more or less discretionary). Furthermore, there is no clear hierarchy between these different criteria. Only will the implementing practice show if the Commission’s interpretation will be more or less favourable to border States’ needs.

5. Concluding remarks. The short analysis conducted so far leads us to two conclusions. On the one hand, it shows a two-faced approach towards NGOs engaged in SAR operations. On the other hand, our analysis suggests more than one reason for skepticism about the expected impact that the proposed measures can have on the existing tensions among EU Member States on the question of SAR operations and disembarkations.

First, as far as the relationship with NGOs is concerned, the pact poses a problem of ambiguity. The European Commission tries to combine positions which are too distant to be put together. On the one side, in the interpretative communication on the Facilitation Directive, the Commission acknowledges the humanitarian role of NGOs. On the other side, in the recommendation on cooperation among Member States concerning SAR operations carried out by private vessels, the Commission warns against the risk that «migrant smuggling or human trafficking networks, including criminal organizations trafficking people or engaging in forms of exploitation assimilated to slavery, take advantage of the rescue operations conducted by private vessels in the Mediterranean». In the same vein, the Commission also underlines that «the continued disembarkations of rescued people in coastal Member States have direct consequences on the migration management systems and place increased and immediate pressure on their migration and asylum systems, including on their reception and processing capacity».

How exactly the Commission considers the presence of NGOs in the Mediterranean Sea? As a humanitarian agency or as a pull factor that incentivizes trafficking and smuggling? As we have seen before, the Commission tries to combine these two different approaches by recommending not to criminalise NGOs’ personnel and encouraging administrative controls on vessels.

However, SAR is a public function. In the last years, NGOs have contributed to carry out this public function, which has been neglected by coastal States, notwithstanding their legal obligations under the Hamburg Convention regime (see De Sena e Starita). Having this basic consideration in mind, it could be argued that the recommendation poses the risk that administrative sanctions, as monetary fines or seizures of vessels, will become a surrogate for punishments, making in practice impossible to save lives at sea. This concern has already been emphasized by some NGOs (see here).

Secondly, on responsibility allocation, our cautious pessimism is essentially based on some weaknesses of the solidarity mechanisms proposed by the Commission.

In addressing the consequences of the continuing disembarkations on EU Mediterranean States’ national asylum systems, the Commission rightly tried to combine the positions of these States with those of their European partners. As it has been already clearly pointed out (see Thym), the whole pact is marked by a strong effort of realpolitik. This is not necessarily a bad thing: politics is the realm of agreements and a Commission’s proposal based on pure principles would lack real chances of success in the subsequent phases of the legislative procedure. The problem is that the pact does not guarantee the uniformity of legal obligations among Member States. Indeed, the actual sacrifice imposed on the Mediterranean States (who are requested to accept again the “entry” criterion as the default one in determining the State responsible for examining asylum applications) is balanced by a promise of solidarity whose fulfillment depends on two basic circumstances: on the one side, the way in which the Commission will use its highly discretional powers in the implementing procedures; on the one other side, the degree of open-handedness that the other Member States will show in the solidarity forum.