The duty to rescue refugees and migrants at sea
This blog explores the obligations states have towards refugees and migrants even before they cross the border, including assistance at sea.
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.
The theory has been increasingly questioned and criticised 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.
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 analysing 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.