This blog series first appeared on the Border Criminologies blog, and is re-posted here.Pål Nesse is Senior Adviser at the Norwegian Refugee Council. This is the fifth and final instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective.
A few years back I participated in a moving ceremony outside the Maritime Museum in Oslo, where Vietnamese refugees unveiled a monument in appreciation of being rescued by Norwegian merchant ships in the South China Sea in the 1970s and 80s. In the first row were several retired captains, some of them in their nineties, sitting next to Vietnamese people that were rescued at their orders. They were life-saving heroes – and the many hundred saved were granted resettlement in Norway. Fortunately, I never heard anyone suggesting this was an unacceptable practice, as it was a pull factor for future Vietnamese migrants.
Since then, I have visited the Italian Coast Guard in Sicily, the crew on a Norwegian oil rig support ship that rescued 1,900 persons off the Libyan coast, fishermen and others plying the seas. They all referred to the duty of rescue as an “of course” practice, something they all adhere to.
In July last year, Germany requested European countries to join a “coalition of the willing” that would jointly share responsibility for those rescued in the Central Mediterranean – and support Italy’s policy change that again permitted disembarkation in Italy, without Italy solely being left the responsibility for those coming ashore. Eight European countries responded positively. Since then, more have joined. This is one of those few recent European occasions – where the shortage of pan-European consensus on refugees and migrants resulted in a constructive protection and responsibility sharing initiative.
As I write this, the Norwegian ship “Ocean Viking” has 407 migrants on board, rescued in the Mediterranean during the last week of January. The ship is chartered and operated by MSF (Doctors Without Borders) and SOS Mediterranée. Yet, various European governments, including my own, keeps warning against this NGO activity. They claim it constitutes a pull factor for African migration to Europe, contributing to more deaths at sea.
Academics and news channels have countered this argument based on their research and interviews with the migrants and refugees themselves. NGOs operating rescue ships claim the same. Migrants state they took the risk of leaving Libya to reach Europe by boat, irrespective of rescue ships in the area.
But isn’t the question of “pull factor” the wrong one to start with? Any forced displacement or voluntary migration intervention in countries of origin, transit countries or potential destinations may constitute a certain degree of push or pull – based on real or perceived options and opportunities for those on the move. Rescuing people from fragile or sinking boats at sea is a humanitarian imperative, practiced by coastal countries like Italy and Norway for centuries. Even if the boat used for the transport should never have left the port of origin due to its condition, incompetence of the crew or the weather forecast, that is irrelevant to the simple duty of rescue.
This blog series first appeared on the Border Criminologies blog, and is re-posted here.Kyrre Lind is a field worker and spokesperson and Head of program department MSF Norway. This is the fourth instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective.
Last night when I wrote this piece, the search and rescue ship Ocean Vikingrescued 92 people, including pregnant women and small babies, from an overcrowded rubber boat 30 nautical miles from the coast of Libya. Many of the survivors suffered from hypothermia and seasickness, and many were extremely weak and saturated in fuel.
Doctors without Borders (MSF) and SOS MEDITERRANEE have since august 2019 rescued over 1,500 people at sea in the central Mediterranean. In 2019, 14,876 people reached Malta or Italy by sea, while 771 deaths were recorded. In 2019, more than 2,000 people were evacuated from Libya by UNHCR, to Niger, Rwanda, different European countries and Canada. At the same time, the Libyan coastguard forced more than 9,000 border crossers back. About 3,000 – 5,000 remain trapped in official detention centres in Libya.
In August 2019, MSF returned to sea as people were drowning. Our actions were directed at saving their lives. We intervened because the conflict raged in Tripoli and ever more migrants and refugees were losing their lives in Libya. Throughout the second half of 2019, it often took days and weeks before assignment of a place of safety for the people we rescued. There is no established, predictable system for disembarkation of people from rescue ships and boats.
From our perspective as participants in the search and rescue, there seems to be little indication that NGO boats are a pull factor from the countries of origin. We see that reasons for leaving home are manifold. For those who already planned to cross the Mediterranean when they set on their journey, Europe is the real pull factor. They hope to obtain protection, security, a better life and a good job. However, there are also long-established migration routes from West Africa and Sudan to Libya and not everyone planned to cross the Mediterranean when they first set out on their journey. Many people we encountered tell us that they just wanted to get a job. Libya has for a long time been a country that hosts guest workers from African countries and others. The fact of the matter is that today Libya is a fragile country ravaged in civil war: lawless conditions make it easier to get a job without paperwork, but also increase the risk of exploitation and abuse. Yet, many take the chance and try to get a job in Libya.
What people tell us aboard the Ocean Viking is that the situation in Libya is the main reason why they are trying to leave the country. People tell us about war horrors, brutal violence, gross exploitation and slavery-like work conditions. Our medical staff on-board Ocean Viking see wounds and scars from beatings, cuts, burns and gunshots, the consequences of sexualized violence, and illnesses related to unhygienic living conditions. EU reports confirm how bad the situation is. IOM has expressed strong concerns about the situation and has asked for a completely new approach in the region. The people we meet say they would rather risk their lives at sea than stay in Libya.
Norway, the country where I come from, receives quota refugees from Libya (450 in 2019), and at the same time supports transit reception centres in Rwanda. However, Norway, via the EU, also supports the Libyan coastguard, which is forcibly returning people to Libya. Back on land, most of them are sent straight back to detention centres – back to the very same detention system MSF have consistently called for people to be evacuated from. Absurdly, and shamefully Norwegian politics is currently helping a few to get out of a terrible situation, while at the same time contributing to pushing people back to that very same conditions.
From where I stand, the narrative that our search and rescue activities are a pull factor for migration seems oversimplified. It is a tool used to defend the present politics, which is failing to solve the humanitarian crisis in the central Mediterranean Sea.
The search and rescue activities are a subject of long-standing legal obligations and frameworks which often become muddled and entangled in the intense political debates surrounding the issue. In this post I discuss legal obligations of states related to the search and rescue. From a legal point of view, nation states can control their borders and refuse migrants to enter under certain conditions. However, states have clear obligations towards refugees and migrants before they cross the border, including assistance at sea. Even if assistance at sea may function as a “pull factor” and encourage refugees and migrants to attempt to cross the Mediterranean, there is no legal avenue for states to avoid such assistance. Moreover, if assistance is rendered, this entails further obligations towards refugees and migrants.
One implication of this rule is that a state cannot legally prohibit its vessels from rescuing persons at sea: states must accept that their vessels engage in rescue operations. In the International Convention on Maritime Search and Rescue (SAR), coastal states undertake the role to coordinate the SAR in respect of persons in specified areas (Article 2.3). There is a duty to organize such services (UNCLOS Article 98 and SOLAS, Regulation V-7). There are no provisions in the SAR convention that the particular state in charge of a specific area can direct foreign vessels whether to assist or not. Within the 12 nautical miles of territorial waters, the state has general jurisdiction on other grounds (including the right to direct vessels how to assist or not to assist), but this jurisdiction does not extend to ships in passage assisting other vessels (UNCLOS Articles 17-18).
It is sometimes suggested that migrant vessels heading from Africa to Europe are so unseaworthy, overloaded and in such bad shape, that they are unlikely to make it to the destination. It is thus suggested that the rules of maritime rescue do not apply. I can see no legal basis for this argument. Most likely, the majority of ships in the need of a rescue have ended up in this situation because they are unseaworthy, and it would be quite harsh that passengers should pay with their lives for not having ensured the seaworthiness of the vessel. On land, persons in danger are assisted if they have driven too fast, been the passenger of a car driven by a drunk driver, had thoughts of suicide, or caused themselves illness through bad lifestyle choices.
The maritime rules of rescue also apply to stand-by rescuers, and not solely to rescue operations initiated by, for example, freighters coincidentally passing by. As such, even the ships of humanitarian organizations deployed to the Mediterranean with no other purpose than to rescue, can invoke the rules of maritime rescue. There is a long tradition of such specialized rescuers, and this is clearly reflected in the international law of remuneration for rescue. These rules stipulate that professional salvors should receive extra remuneration to compensate for their preparedness (see for example International Convention on Salvage Article 13). These provisions would be meaningless if the rules did not apply to vessels designated purely to salvage.
In sum, there is a duty and a right to render assistance to persons in danger at sea. This duty applies regardless of whether the rescue operations are believed to have an undesired pull effect, motivating refugees and migrants to travel.
Rescuees on board
Rescuers assume primary responsibility for taking care of the rescuees, but there are limits to what they can do. If necessary, the relevant authorities must intervene. At sea, nation states have the duty to actively secure fundamental human rights. This duty was reiterated by The European Court of Human Rights, which stated in Hirsi Jamaa v Italy that the
“special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention [the European Convention on Human Rights] which the States have undertaken to secure to everyone within their jurisdiction” (Hirsi Jamaa v. Italy para. 178).
The relevant authority is principally the state with jurisdiction, which has the opportunity to take legal as well as practical actions. This is primarily the state in which the ship with the rescuees is registered, the flag state (UNCLOS, Article 92). Coastal states have such powers pursuant to the rules of the law of the sea over vessels in their internal waters (very near the coast), and (with some exceptions) over those in their territorial waters (typically within 12 nautical miles from their coast). Thus, these states can and must take action and have some responsibility for securing human rights on board.
It may be difficult to find a port that is willing to receive the rescuees. If no such port is found, the responsibility for the rescuees remains for the rescue vessels and the states having jurisdiction over it. It can be tempting in such cases to disembark the rescuees in any willing port. However, international law requires that rescuees should only be disembarked in a safe port (see Martin Ratowich, International Law and Rescue of Refugees by Sea (Stockholm, 2019)). This does not have to be a Western European port, but for example, Libyan ports are not considered safe ports in this respect (see UNHCR and IOM joint statement). Persons who may be political refugees are even better protected (via the principle of “non-refoulement”). If no willing, safe port can be found, the European coastal states and the flag states cannot pass the buck further and must take care of the rescuees.
Non-assistance to refugees and migrants at sea is not a legal option. When they are rescued, this entails some obligations for the rescuer and the states having jurisdiction over the rescuer. These obligations prevent disembarkation in an unsafe port and include a responsibility for protecting human rights of the rescuees. This is essential for the protection of migrants.
Unfortunately, even states that generally take human rights seriously often fail to honor these obligations. They ignore their responsibilities to make sure that migrants are rescued and that human rights are respected on board their vessels or visiting vessels. Furthermore, they may allow or even encourage rescuees to de disembarked in a port that is unsafe for them. This is a shameful breach of the best of humanitarian and maritime traditions.
This blog series first appeared on the Border Criminologies blog, and is re-posted here.Maria Gabrielsen Jumbert is a Research Director and Senior Researcher, PRIO. This is the second instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective.
Debates have flourished in recent years about whether the NGO-led rescue vessels in the Mediterranean create a pull-factor and encourage more migrants to attempt the risky journey across the Mediterranean. The connection between aid to migrants and the fear of creating a pull-factor is neither new, nor unique to Europe, and constitutes one of the central elements in refugee reception policies in many host countries across the world. It has also been an element in European refugee reception policies for many years, and has become particularly pregnant in recent years following the large number of arrivals in 2015, and the debate around the rescue operations at sea.
This debate around the rescue efforts in the Mediterranean can be traced back to the set-up of Operation Mare Nostrum. The search and rescue mission, led by the Italian navy, was established in response to the large shipwreck of Lampedusa in October 2013, which was met with moral outrage, compassion for the victims and declarations of this brining “shame” on Europe by European leaders. The year during which Mare Nostrum was operational was also the period in which migrant arrivals increased the most. Although there were probably many driving factors for this increase, the juxtaposition of increased rescue efforts and increased migrant arrivals quickly led to conclusions that the first led to the second. While the theory was initially seen as controversial, since it was used to legitimate the need to reduce rescue capacities at a time where these needs seemed to be increasing, it has become a commonplace, widespread and generally accepted in European political circles.
State of the art: what has been said about the connection
The theory has been increasingly questioned and criticized by scholars in the field, including in previous posts on this blog, especially by Elias Steinhilper and Rob Gruijters. They demonstrate such an approach is not reflected in data as they compare periods of high rescue capacity and low rescue capacity (also seen in relation to the total number of arrivals and drownings in these periods). Moreover, the reports “Death by Rescue” and “Blaming the rescuers” by researchers from Forensic Oceanography at Goldsmiths (University of London) have shown how the policies in this area led to the retreat of state-led rescue and an increase in the loss of lives at sea. They also demonstrated that NGOs filling this role are becoming the target of accusations outlined above. The most recent attempt to engage in this controversy by refuting the pull factor theory is the work of Eugenio Cusumano and Matteo Villa, who have systematically analysed the number of departures from Libya to Italy, from 2014 to October 2019. They concluded that there is “no relationship between the presence of NGOs at sea and the number of migrants leaving Libyan shores”. They also found that departures from Libya have been largely shaped by weather conditions, as well as Italian policies of “onshore containment” in Libya.
What these reports highlight is that the assumption about SAR as a pull factor is either weak or unfounded. The picture is much more complex and policy responses need to reflect that.
The pull factor as a symptom: of what?
Despite these findings, the assumption about the SAR as a pull factor is still deeply anchored in policy and popular debate around responses to migration in the Mediterranean. It pervades policies and public discussions in different reception countries across Europe, from Greece where border crossers are stuck, to France that seeks to avoid a creation of a new “Jungle” off Calais. It is also very much present in countries like Norway, much further away from the Mediterranean and with very few arrivals in recent years (2655 asylum applicants in 2018, and 2305 in 2019, the lowest number since the mid-1990’s). This focus appears to be symptomatic of the way the EU is struggling to deal with and respond to the “migration issue”, and analyzing this debate indeed tells us several things about the state of EU policies in this area – or the state of the stalemate.
First, debates about how to solve the Mediterranean crisis over the past years have been complex, as well as intense and polarising, with seemingly few solutions in sight. In such a setting, it becomes important to point to certain causes, or ideally, actors to blame. While the focus a few years ago was to a large extent on the smugglers as the root cause and actors to blame for the Mediterranean migration, the blame is now on the rescuers, for “playing into the hands of the smugglers”. Condemning the presence of the rescue vessels also becomes a way to point to a “solution”, at the time when there are seemingly very few solutions in sight. Returning them to Libya is not legally feasible, as it is not considered a “safe harbour” (see upcoming post by Røsæg), and seeking to establish asylum reception centres in Libya also pose several legal, practical and political challenges. The fact that intense policy efforts and enormous financial spendings to reinforce European border security have not put an end to the tragic situation in the Mediterranean, with people still attempting the perilous journey, also creates a political need for someone to blame.
Finally, the tragic humanitarian situation at Europe’s borders today is likely not the result of an inability of providing an official Search and Rescue operation, but is first and foremost a product of an unwillingness to provide better and more assistance to border crossers. This unwillingness is inherently tied together with the idea that any form of aid runs the risk of both “fixating” already arrived migrants and encouraging more to come. The humanitarian concerns, however, are not absent from European policy makers’ discussions in this area, which also constitutes the strength of the “pull factor theory”: as it is argued that is for humanitarian reasons that we should refrain from rescuing, as these practices contribute to maintain the same humanitarian suffering. Such rhetoric is the main reason why this assumption that links the SAR and increased mobility should continue to be challenged and debated.
Written by Katja Franko (UiO) & Maria Gabrielsen Jumbert (PRIO)
This blog series first appeared on the Border Criminologies blog, and is re-posted here. Post by Katja Franko and Maria Gabrielsen Jumbert. Katjais Professor of criminology at the University of Oslo. Her work is primarily concerned with borders, globalization and issues of criminalization of migration. Maria is Research Director and Senior Researcher at the Peace Research Institute Oslo (PRIO), and the Director of the Norwegian Centre for Humanitarian Studies (NCHS). Her work is primarily concerned with humanitarian and security responses to migration and border management. This is the first instalment of the themed series onthe humanitarian Search and Rescue, from the Nordic perspective.
During 2016 and 2017, more than 46,000 migrants were rescued yearly by NGOs and civil society actors close to the Italian coast. The numbers have declined considerably in the past two years. NGOs are, nevertheless, still the largest single actor in search and rescue in the area apart from the Libyan coast guard, after Italy and the EU delegated increased responsibilities on this matter to Libya during the last year. As pointed out by previous contributions on this blog, these activities have been subjected to various types of state intervention such as seizure of rescue vessels, arrests of crew members, and initiation of legal procedures against them.
At the same time, NGO search and rescue (SAR) activities have been surrounded by intense rhetorical battles. Migration policy is a highly politicised field and positions on humanitarian rescue vary considerably, often depending on the speakers’ professions, institutional affiliations and political convictions. Attention to language is important here. The use of certain metaphors, discursive couplings and rhetorical tropes framing migrants and rescuers influences attitudes and political actions by focusing on certain aspects of the activities while suppressing others. At the most extreme, NGOs have been accused of ‘playing into the hands of human traffickers’ (Fabrice Leggeri, Director of Frontex, Die Welt, 27.2. 2017). SAR has been rhetorically coupled with human smuggling and even trafficking. As Frontex wrote in one of its reports:
“Apparently, all parties involved in SAR operations in the Central Mediterranean unintentionally help criminals achieve their objectives at minimum cost, strengthen their business model by increasing the chances of success.” (Frontex, 2017: 32).
More recently, the French interior minister Christophe Castaner suggested (5.4. 2019) that SAR off the North African coasts represent “a real collusion between smugglers and some NGOs“. What these linguistic tropes do is to present the rescuers as deliberately creating routes for irregular migration into Europe, and thereby effectively deflecting attention away from the duty of rescue and the lifesaving efforts they are fulfilling. Within this debate, there are similar discourses that eventually create doubts around the migrants’ right to assistance, by questioning their right to international protection. This narrative is underpinned by their awareness of the risks that they “put themselves into”, thereby obscuring the fact that the right to rescue is unconditional of any legal status (yet to be defined) and the reasons that have led anyone into that situation in the first place.
While the statements referred to here may be the sharpest and most dramatic examples of condemnation of NGO rescue operations by EU member states and agencies, a more pervasive and, arguably, more influential perception has been established in the past decade or so: that SAR constitutes a pull factor for irregular migration. While the debate on the topic has raged, with polarized views and disagreements around this assumption, this idea of SAR as a pull factor has become more widespread. The idea is probably attractive because it provides a seemingly simple explanation to a situation that is otherwise difficult to comprehend: why people are risking their lives, and what should be done about it.
Because the pull-factor argument has become pervasive in current discussions about responses to the humanitarian crisis in the Mediterranean, it is important to address the question by closely examining the findings of existing scientific studies on the subject, and to critically discuss what this assumption does to the policy responses in the area. This is what we aim to do in this week’s thematic issue. The contributions address the issue of humanitarian Search and Rescue from several standpoints: from a policy and legal perspective, and from the point of view of humanitarian actors who are tackling these questions on a daily basis. The contributions were first presented at a public debate that took place at the House of Literature in Oslo in November 2019, jointly organized by the Peace Research Institute Oslo (PRIO), the Norwegian Centre for Humanitarian Studies and the University of Oslo’s NORDHOST project. Conscious of the fact that migration policies are often more informed by political convenience than scientific knowledge or even reference to international legal obligations, the event aimed to bring in dialogue researchers, politicians, NGO representatives and the general public in order to discuss the nature and impact of humanitarian SAR operations.
In the second post, Maria Gabrielsen Jumbert examines some of the existing studies about SAR as the pull factor, all refuting any direct connection and pointing to a more complex picture affecting the numbers of people crossing the Mediterranean. Her contribution then asks what the focus on SAR as a pull factor says about the state of European policies in the area.
Erik Røsæg, professor of maritime law at the University of Oslo, examines SAR from the perspective of the international law of the sea. What do existing conventions actually say about the duty to rescue, whose responsibility is it, and what it means to fulfil this responsibility? While political discourse may give an impression that there is much room for choice, Røsæg’s contribution points to the clarity and firmness of state legal obligations when it comes to SAR.
The final two posts are contributions from the field by two NGO representatives, Kyrre Lind from Doctors without Borders Norway, and Pål Nesse from the Norwegian Refugee Council. Lind shares an account from the perspective of those participating actively in search and rescue, and who are at the centre of the “pull factor” polemic. Nesse follows up arguing that the “pull factor question” is all together the wrong question to start with: not only is the picture much more complex, but it also obscures what should be very clear, namely, the duty to rescue lives at sea.
While the contributions are critical of the discourses through which search and rescue activities have been framed in recent years, they also paint a more pressing overall picture. They show that European policies in this area have turned away from some central principles that have traditionally been seen as salient guides for political action: scientific evidence, legal rules and humanitarian principles. The contributions in this issue, and the preceding debate, show that this development is also taking place in Norway, a country that is often taking great pride in observing the above-mentioned principles. This is yet another reminder that when it comes to migration policy, there are few countries that have been able to stand firm on principles, when faced with the perceived urgency of the issue.