And Then There Were None: How Libyan Coast Guard’s Harassment of NGO Search & Rescue Vessels Violates UNCLOS

Chris Opila

Vol. 40 Associate Editor

Since 2014, more than 17,500 refugees and economic immigrants have drowned or otherwise died of exposure in the Mediterranean Sea, including more than 2,000 this year to date.[1] While actual immigration to Europe via the Mediterranean Sea has decreased by ninety percent since its peak in 2015,[2] the chance of dying at sea has nearly quintupled.[3] Nonetheless, European Union (EU) member states have reallocated resources away from nautical search and rescue (SAR)[4] and towards border security.[5] Non-governmental organizations (NGOs) in turn have operated SAR vessels to fill the gap.[6] Decrying these NGO operations as incentivizing unlawful immigration and facilitating smuggling,[7] EU members states are funding the Libyan Coast Guard to obstruct them.[8] The Libyan government has banned NGO-operated vessels from conducting SAR within its territorial waters[9] and its Coast Guard has fired upon,[10] boarded,[11] and threatened to kill the crew[12] of any NGO-operated vessel that violates this ban. These actions, however, violate the rights of NGO-operated vessels under the United Nations Convention on the Law of the Sea (UNCLOS) to conduct SAR missions in Libya’s territorial waters. UNCLOS affords NGO-operated vessels the right to navigate the seas – including the territorial waters[13] of coastal states – to search for and rescue migrant vessels in distress. Libya does enjoy full sovereignty over its territorial waters but the doctrine of innocent passage,[14] affords foreign-flagged vessels, such as those operated by NGOs, the right to access its waters provided that they merely pass through it – as opposed to stay in it – in an innocent manner.[15] If confronted at an international tribunal, Libya could argue that the NGO-operated vessels are not passing through its territorial waters because their journey is neither continuous nor expeditious.[16] However, while the innocent passage doctrine does require continuity and expediency, it also allows vessels to stop and anchor as necessary for the “purpose of rendering assistance to persons, ships, or aircraft in danger or distress.”[17] Therefore, while NGO vessels may not hover or circle around in Libya’s territorial waters, they may enter or traverse them for the purpose of rescuing immigrants announcing their distress over the radio.[18] Libya may also attempt to argue that the NGO-operated vessels are not entering its territorial waters for an innocent purpose but rather for one prejudicial to its peace, good order, and security.[19] Among the activities UNCLOS defines as prejudicial to peace, good order, and security is “the loading or unloading of any […] person contrary to the […] immigration […] laws and regulations of the coastal state.”[20] However, rescuing immigrants does not implicate this UNCLOS provision since it is not a deliberate act done to circumvent immigration laws.[21] Moreover, the provision’s scope is limited to immigration – rather than emigration – laws and so is applicable only to those attempting to enter – rather than leave – Libya.[22] Furthermore, NGO-operated vessels have duties “to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance.”[23] Libya may also attempt to argue that the International Maritime Convention on Search and Rescue[24] requires NGO-operated SAR vessels to comply with its instructions to cease and desist a rescue operation in its territorial waters. Libya does indeed have sovereignty over all foreign vessels – such as the NGO-operated SAR vessels – in its territorial waters so its instructions are binding upon them.[25] However, orders to cease and desist a rescue operation impair efficient and effective SAR, which is the object and purpose of the International Maritime Convention on Search and Rescue.[26] Therefore, such orders violate Libya’s duty to interpret and apply its authority under the International Maritime Convention on Search and Rescue in good faith and in light of its object and purpose.[27] Moreover, the International Maritime Convention on Search and Rescue expressly bars construing any of its provisions to prejudice the rights and obligations other international instruments impose on vessels,[28] such as the duty to rescue under UNCLOS. In sum, Libya’s interdiction and harassment of NGO-operated SAR vessels in its territorial waters in the Mediterranean Sea violates these vessels’ right to passage and obstructs their duty to rescue under UNCLOS. It has, however, achieved its goal of forcing NGOs to suspend their SAR operations,[29] reducing the number of NGO-operated SAR vessels from a peak of roughly fifteen vessels[30] in 2016 to none today.[31]

[1] Mediterranean Situation, UNHCR, (lasted visited Nov. 12, 2018), https://data2.unhcr.org/en/situations/mediterranean. [2] Id. [3] See Id. Deaths per thousand migrants have risen from approximately four deaths per thousand migrants in 2015 to approximately 20 deaths per thousand migrants today. Id. [4] Steve Scherer & Massimiliano Di Giorgio, Italy to End Sea Rescue Mission that Saved 100,000 Migrants, Reuters (Oct. 31, 2014 2:17 PM), https://www.reuters.com/article/us-italy-migrants-eu/italy-to-end-sea-rescue-mission-that-saved-100000-migrants-idUSKBN0IK22220141031. [5] Stefano M. Torelli, Migration Through the Mediterranean: Mapping the EU Response, Eur. Council on Foreign Rel., https://www.ecfr.eu/specials/mapping_migration (lasted visited Nov. 12, 2018). [6] Sertan Sanderson, The Mediterranean: Europe’s New Frontier, Infomigrants (July 18, 2018), http://www.infomigrants.net/en/post/10703/the-mediterranean-europe-s-new-frontier. In 2017. NGO missions rescued as many immigrants on the central Mediterranean route as Frontex, Sophia and the Italian Coast Guard combined. Id. [7] Eugenio Cusumano & James Pattison, The Non-Governmental Provision of Search and Rescue in the Mediterranean and the Abdication of State Responsibility, 31 Cambridge Rev. Int’l Aff. 53, 64-67 (2018), https://www.tandfonline.com/doi/full/10.1080/09557571.2018.1477118#. [8] Judith Sunderland, Saving Lives at Sea: A Two-Week Mission with SOS Mediterranee, Hum. Rts. Watch (Nov. 30, 2017), https://www.hrw.org/video-photos/interactive/2017/11/30/saving-lives-sea. [9] Marex, Libya Exclude NGO Vessels from “Rescue Zone”, The Maritime Executive (Nov. 8, 2017), https://www.maritime-executive.com/article/libya-excludes-ngo-vessels-from-rescue-zone. [10] Steve Scherer, Rescue Ship Says Libyan Coast Guard Shot at and Boarded It Seeking Migrants, Reuters (Sep. 26, 2017), https://www.reuters.com/article/us-europe-migrants-libya-ngo/rescue-ship-says-libyan-coast-guard-shot-at-and-boarded-it-seeking-migrants-idUSKCN1C12I4. [11] Id. [12] Marex, Rescue NGO Calls for Clear Rules for Libyan Coast Guard, The Martime Executive (Apr. 3, 2018), https://www.maritime-executive.com/article/rescue-ngo-calls-for-clear-rules-for-libyan-coast-guard. [13] Territorial waters are those waters within twelve nautical miles of a state’s coastline. United Nations Convention on the Law of the Sea art. 3, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. [14] See Id., at arts. 17–19. [15] Kristof Gombeer & Melanie Fink, Non-Governmental Organizations and Search and Rescue at Sea, 4 Martime Safety and Security L.J. 1, 10 (2018), http://www.marsafelawjournal.org/wp-content/uploads/2018/06/MarSafeLaw-Journal_Issue-4_Gombeer-and-Fink.pdf [16] See UNCLOS, supra note 13, at art. 18. [17] Id. See also Id., at art. 39(1)(c) (“Ships and aircraft, while exercising the right of transit passage, shall refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress.”). [18] Gombeer & Fink, supra note 15, at 10. [19] See UNCLOS, supra note 13, at art. 19. [20] Id., at art. 19(2)(g). [21] Gombeer & Fink, supra note 15, at 11. [22] Id. [23] UNCLOS, supra note 13, at art. 98. See also International Convention for the Safety of Life at Sea ch. 5, reg. 33, Nov. 1, 1974, 1184 U.N.T.S. 279 (as amended by the Maritime Safety Committee on May 20, 2004). See generally Irini Papanicolopulu, The Duty To Rescue at Sea, in Peacetime and in War: A General Overview, 902 Int’l Rev. Red Cross 491 (2016). [24] This international convention establishes “an international maritime search and rescue plan responsible to the needs of maritime traffic for the rescue of persons in distress at sea.” International Convention on Maritime Search and Rescue, Preamble, Apr. 27, 1979, 1405 U.N.T.S. 119 [hereafter SAR Convention]. [25] See UNCLOS, supra note 13, at art. 2. [26] Gombeer & Fink, supra note 15, at 17–18. [27] See Vienna Convention on Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S 331. [28] SAR Convention Treaty, supra note 24, at art. 2. [29] Gavin Jones, More NGOs Follow MSF in Suspending Mediterranean Migrant Rescues, Reuters (Aug. 13, 2017), https://www.reuters.com/article/us-europe-migrants-ngo-idUSKCN1AT0IZ. [30] Cusumano & Pattison, supra note 7, at 56. [31] Press Release, UNHCR, 2,000 Lives and Counting: Mediterranean Death Toll in 2018, (Nov. 6, 2018), http://www.unhcr.org/news/briefing/2018/11/5be15cf34/2000-lives-counting-mediterranean-death-toll-2018.html. The views expressed in this post represent the views of the post’s author only.