Rescue at sea: the Commission’s Migration Pact lacks solidarity and clarity

2 Oct 2020

On 23 September, the European Commission published a New Pact on Migration and Asylum, seeking to pursue “more effective procedures and to strike a new balance between responsibility and solidarity”. Initial analysis of the text revealed that the document still lacks solidarity, as well as legal clarity and coordinated solutions for cases where commercial vessels and their crew are involved in rescuing migrants and refugees.

 

ETF shares the ETUC’s analysis of the Commission’s New Pact on Migration and Asylum that “stronger borders and more returns cannot be dressed up as solidarity”  and that “What working class people in Europe actually need is action on legal routes for labour migration which prevent exploitation”. More action on legal routes would have an impact on the number of people crossing the Mediterranean where migrants and refugees are still in dire need of regular rescue operations.

Last week, ETF, jointly with ITF, ECSA, and ICS, called on the European Commission to “ensure prompt and predictable disembarkations for persons rescued at sea by merchant vessels”. The Commission’s Migration Pack, unfortunately, fails to provide the necessary protections.

In addition to humanitarian organisations and national search and rescue (SAR) services, crew onboard commercial vessels are also involved in rescuing migrants and refugees. According to international law, and as a long-standing seafaring tradition, any ship master has the duty to come to the rescue of a person in distress at sea. These crews often find themselves in difficult circumstances, where neither the flag state of their ship, nor the coastal state is eager to take responsibility, they are prevented from disembarking the distressed people in a place of safety, do not have enough resources or skills to provide them with the necessary medical support, and have been criminalised in the past for taking part in these operations.

ETF welcomes the reference the Pact makes to the fact that “assisting those in distress at sea is a moral duty and an obligation under international law”. To this end, it attempts to set forth a more coordinated EU approach to SAR operations, including increased operational support by Frontex to improve Member States’ capabilities and contribute to saving lives at sea.

However, it remains to be seen if this approach will be effective, as it does not offer clarity on whether it covers vessels that are not operated by humanitarian organisations and national SAR services. ETF calls on the European Commission to expand the scope of the Pact in a way that it covers commercial vessels and their crew.

The Pact’s Recommendation concerning operations carried out by vessels owned or operated by private entities for the purpose of SAR activities identifies the need for a more structural framework which would lay down “specific rules for solidarity between Member States, and address the need for reinforced cooperation among in particular the flag and coastal Member States.” This plan should include cooperation with seafarers’ trade unions and shipping companies. To this end, ETF calls on the European Commission to include maritime transport social partners in the interdisciplinary Contact Group the Commission intends to set up to oversee these activities.

At the same time, the ETF recognises the importance of the Pact’s Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence. It refers to the need to avoid risks of criminalising those who provide assistance to migrants in distress and addresses the perceived lack of legal certainty of Directive 2002/90/EC and Council Framework Decision 2002/946/JHA – referred to as the “Facilitators Package”- which provide, inter alia, for the possibility for Member States to exempt humanitarian assistance from being criminalised. ETF calls on EU Member States to follow the Commission’s guidance and policy recommendation on the interpretation of Article 1 of the Facilitation Directive, and to use the possibility provided for in Article 1(2) of the Facilitation Directive “which allows them to distinguish between activities carried out for the purpose of humanitarian assistance and activities that aim to facilitate irregular entry or transit, and allows for the exclusion of the former from criminalisation”.


On 7 October, ETF, ITF, ECSA, and ICS addressed another letter to the European Commission, calling for the EU Migration Pact to be complemented by measures to ensure merchant vessels are guaranteed prompt and predictable disembarkations for persons rescued at sea by merchant vessels.

Follow us: