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Expert Views: Should Rescue NGOs Sign Mediterranean Code of Conduct?

Refugees Deeply asked a selection of experts whether charities undertaking search and rescue in the Central Mediterranean should sign Italy’s new code of conduct.

Written by Kim Bode, Daniel Howden Published on Read time Approx. 5 minutes
African migrants stand on the deck of the Italian rescue ship Vos Prudence run by NGO Medecins Sans Frontieres (MSF) as it arrives in the early morning of July 14, 2017, in the port of Salerno. The ship carried 935 migrants, including 16 children and seven pregnant women rescued from the Mediterranean sea. AFP/CARLO HERMANN

Italy recently drafted code of conduct for nongovernmental organizations conducting search-and-rescue (SAR) operations for boats carrying refugees and migrants along the Central Mediterranean passage from Libya to Italy.

To date, four of the eight humanitarian groups operating rescue ships in the Mediterranean have signed the code, while the remainder have not. The rules include a ban on transferring rescued refugees and migrants to other ships at sea and an obligation to allow police officers to board rescue vessels.

Since Italy introduced the code, three organizations – Medecins Sans Frontieres (MSF), Germany’s Sea Eye and Save the Children – have suspended sea rescues after Libya warned foreign ships to stay out of an expanded zone of control off its coast.

As part of our new Expert Views series, Refugees Deeply asked migration analysts and rescue workers whether organizations should sign the Italian code of conduct and, if not, what kind of rules they should abide by.

Giulia Lagana, senior E.U. migration and asylum analyst, Open Society European Policy Institute

All actors involved in SAR operations at sea, be they commercial vessels, coast guard or navy units, ships chartered by NGOs or even pleasure yachts, must abide by international maritime law, which stipulates clearly that saving lives is an absolute priority. The Italian code of conduct, on the contrary, has no legal standing.

The Italian coast guard, which exercises de facto SAR responsibility over a vast swathe of the Mediterranean and which coordinates all rescue operations in the area, first began work on a nonbinding series of guidelines. As the numbers of migrants crossing the Mediterranean to Italy increased earlier this year – and as the undemonstrated claim that the NGOs were acting as a “pull factor” gained traction – the interior ministry took control of the code, shifting the emphasis from SAR to security and migration control. The final version, which has been rejected by MSF and other NGOs, includes provisions that run counter to basic tenets of SAR and others that would undermine the organizations’ neutrality.

Barbara Molinario, public information associate, U.N. refugee agency

With so many lives at stake, UNHCR stresses the vital importance of rescue-at-sea operations undertaken by all actors involved, including the Italian coast guard, NGOs, Frontex and the crews of merchant ships. It is important to recognize the work of NGOs in saving lives, providing additional and much-needed rescue capacity. NGOs provide 40 percent of all rescue operations in the central Mediterranean.

If the purpose of a code of conduct is to improve coordination and cooperation to enable effective SAR activities, this would need to be in line with international law, based on a wide consultation with all actors, and ideally apply to all vessels engaged in SAR activities. It is important to note that maritime and refugee law and International Maritime Organization (IMO) guidelines already apply to all those involved in SAR at sea.

Sasha Ockenden, media officer, Sea-Watch

The majority of SAR NGOs have refused to sign the code of conduct – and rightly so. Most clauses are “either redundant or simply illegal” in the words of Dr. Violeta Moreno-Lax from Queen Mary University of London. The code violates the universal principle of “non-refoulement,” the U.N. Convention on the Law of the Sea (UNCLOS) and the anti-trafficking Palermo protocols. For example, it proposes an “absolute ban” on entering Libyan waters – but under UNCLOS there is a universal obligation to render assistance to anyone in distress at sea in any waters. Nevertheless, NGOs enter Libyan waters only with the permission of the Maritime Rescue Coordination Centre (MRCC) – which is actually based in Italy.

But this is not just a legal debate. From a practical perspective, the clause forbidding “trans-shipments” – moving refugees to larger ships – would be disastrous. It would mean NGOs would spend half of their time out of the rescue area ferrying people to Italy themselves. And smaller NGOs, without the capacity to transport people large distances, might simply disappear. Last year, 5,000 people drowned in the Mediterranean despite our efforts, and the code would only increase this number.

The reason some clauses are “redundant” is because SAR is already regulated in detail: We keep our transponders on; we report our financial details and so on. Strict rules exist: UNCLOS, customary international law and our own charters. There was even an attempt in April by the NGO Human Rights at Sea to create a consensual, humanitarian code, rather than imposing one top-down.

We have rules that work, and we abide by them. Yet if we sign a code that aims to get NGOs out of the rescue area, we are simply signing a death warrant for many thousands of refugees.

Marina Petrillo, senior editor, Open Migration

[The Italian] government’s campaign for the code of conduct looks largely like a response to electoral, anti-migration fears. The government has convinced the public that the code of conduct was going to establish regulation where there was none. But this is completely untrue: Every NGO has been operating strictly within the coordination of the Italian coast guard, which abides by the complex and multifaceted mix of international laws in the Mediterranean. The few additional norms in the code of conduct appear aimed at de facto hindering rescues in the larger picture of the new Italian military agreement with Libya. The Italian coast guard expressed its displeasure at the code of conduct by way of the minister in charge of it [Italian transport minister Graziano Delrio] and this led to a serious clash inside the government.

Melissa Phillips, honorary fellow, University of Melbourne

It is a horrible situation when lives become pawns in a political process. However, this current debate should not detract from the reality that protection at sea is interconnected with protection on land. My concern is how this measure is being interpreted by the Libyan authorities. If NGOs come to be seen as “spoilers” rather than humanitarian actors, will this affect their ongoing access to migrants and refugees still in the country?

Another major concern is what will happen when the traditional summer season of departures ends and people have to stay in Libya? Our attention should remain fixed on the conditions that drive people to leave their homes first and Libya second, as well as developing a protective environment across countries of origin, transit and destination.

The statements have been edited for length and clarity.

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