*First Published in Initiative of Lawyers and Jurists for the shipwreck of Pylos

Open Letter on the Greece Boat Disaster: Questions of International Law

This letter is undersigned by academics internationally specialising in the areas of migration, asylum, refugee and human rights law, public international law, law of the sea and international criminal law.

On 14 June 2023, yet another migrant boat sank in an attempt to cross the Mediterranean Sea. An estimated 650 passengers were lost at sea. The flagless boat had departed from Libya and was heading towards Italy when it was detected on the high seas, 87 kilometres off the Greek coast. Alarm Phone and Frontex separately alerted the Greek authorities. No rescue attempt was initiated. According to the Greek authorities, the boat was seaworthy when the Coast Guard vessel arrived at the scene, and those on board rejected their offer for assistance.

The Greek authorities argued that since the vessel was on international waters, the Hellenic Coast Guard lacked jurisdiction to intervene, especially since their offer for assistance had been rejected. The capsizing of the boat was allegedly caused by the acts of the smugglers, without any involvement of the Coast Guard. According to survivors’ accounts, the Coast Guard attempted to tow the vessel, a practice indicating a possible pushback attempt, which eventually caused the boat to capsize. In the days following the shipwreck, nine survivors were arrested and charged with migrant smuggling. The proceedings are ongoing.

Systematic pushbacks and the practice of delayed or non assistance in the Mediterranean undermine well-established legal obligations. Moreover, the national debate around these practices, as the recent shipwreck exemplifies, attempts to cast doubt on basic principles of international law. Therefore, with this open letter, we clarify the applicable legal obligations on the basis of international Law of the Sea, Human Rights Law, EU law and the Smuggling Protocol.

Rescue and the Law of the Sea

The duty to rescue persons in distress at sea is a core principle of customary international law. It is also codified in treaty law and other legal instruments, including Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS), the International Convention on Maritime Search and Rescue (SAR)) and the IMO Guidelines.

Distress

A vessel is in distress if “there is reasonable certainty that the vessel is threatened by grave and imminent danger and requires immediate assistance” (SAR Convention Article 1). The wording implies that a distress situation exists not only in case of confirmed imminent danger (e.g. sinking vessel) but also when there is a risk of such danger (e.g. due to the unseaworthiness of a vessel).

In the same spirit, EU Regulation 656/2014 (Frontex Sea Operations Regulation), codifying rules on international law relevant to operations at sea, states that the determination of a situation of uncertainty, alert or distress shall be based on the following indicators: the seaworthiness of the vessel and the likelihood that the vessel will not reach its final destination, the number of passengers on board, the availability of sufficient supplies, such as fuel, water and food, the availability of a qualified crew and master, and the presence of children on board. The assessment of the duty to assist is objective and must consider all relevant information. The existence of a request for assistance is relevant but not decisive.

Smuggling and irregular entry

The obligation to render assistance at sea exists irrespective of the persons at risk nationality or (legal) status. This also applies to migrants who may not fulfil the requirements for regular entry. One of the arguments voiced in the national debate is that UNCLOS was not drafted with migrant vessels in mind, reflecting the concern that SAR duties are being abused by smuggling networks. The Convention does not limit rescue obligations to ‘legal’ or ‘regular navigation’ and does not include any exception from the duty to rescue. Article 98 UNCLOS explicitly states that the duty covers ‘any person’ found at sea in danger of being lost, in other words, regardless of immigration status, travel purposes, or other motivations.

Jurisdiction on the high seas

States primarily have jurisdiction to stop or intercept vessels and enforce their laws within their territorial waters. On the high seas, vessels enjoy the freedom of navigation and are subject to the enforcement jurisdiction of the State of nationality of the vessel (flag state).

While extraterritorial jurisdiction is contested with respect to intercepting and seizing vessels on the high seas, this uncertainty does not apply to Search and Rescue. When a vessel is in distress, the duty to assist overrides jurisdictional limitations. The duty to rescue applies equally in the territorial waters and on the high seas.

The International Maritime Organisation (IMO) ensures the establishment of search and rescue regions (SAR zones), which also include sections of the high seas. States must provide (and coordinate the provision of) assistance to vessels in distress within their SAR zone. The obligation is not one of result (i.e. succeeding in saving those in distress) but of due diligence, namely that the State must carry out its best efforts to support the situation necessitating a rescue. The vessel was situated in the Greek SAR zone in this particular case.

It follows that under the International Law of the Sea and EU law, Greece did not only have the right but also the duty to intervene, assist and rescue those on board irrespective of their status as irregular migrants or smugglers, regardless of whether they asked for or refused assistance, and even though the incident took place on the high seas.

Human Rights & Refugee Law

International and European human rights law protects the right to life (Art. 2 ECHR, Art. 2 EU Charter, Art. 6 ICCPR). States do not only have the negative obligation to refrain from unlawful taking of life but also the positive obligation to take all appropriate steps to safeguard lives within their jurisdiction (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania). Notably, the right to life may also be violated when acts of state agents put the applicant’s life at serious risk, even when the latter manages to survive (Makaratzis v. Greece). States’ positive obligations include a duty to carry out life-saving operations at sea when they are informed of persons or vessels in distress and under their jurisdiction.

In cases of pushback, the prohibition of refoulement can also be at stake, which forms an essential protection principle in international refugee law, human rights law and customary international law. Other human rights at stake during pushbacks include the prohibition of collective expulsion, the right to asylum, the right to effective legal protection, and the rights of the child.

Extraterritorial jurisdiction

The primary rule of jurisdiction in human rights law is territorial jurisdiction (Art. 1 ECHR, Bankovic and others v. Belgium), meaning that a state can be held responsible for violations occurring within its own territory. However, jurisdiction can also apply extra-territorially under certain circumstances. Jurisdiction can be established on the foreign territory or the high seas when a state exercises effective control over persons (Medvedyev v. France) or when it exercises formal public authority or effective control over a territorial area (Al Skeini v. the UK).

In Hirsi Jamaa v. Italy, the European Court of Human Rights accepted that such extraterritorial control was established, both de jure and de facto, when the Italian authorities intercepted a boat on high seas, transferred the passengers to their own vessels, and returned them to Libya.

The UN Human Rights Committee has further held that extraterritorial jurisdiction also exists when the vessel in distress is located within the SAR zone, for which a State has formally assumed responsibility to coordinate rescue operations (AS and others v. Malta).

Extraterritorial jurisdiction can also arise when a State, without having formal competence, is nonetheless involved in practice in a search and rescue operation, for instance, by remaining in communication and contact with the vessel in distress (AS and others v. Italy).

Thus, under human rights and refugee law, Greece can be found in violation of the right to life and also possibly the prohibition of inhuman and degrading treatment and collective expulsion (depending on the establishment of the facts concerning the towing of the vessel). The extraterritorial jurisdiction of Greece with respect to its human rights obligations can be established on the basis of the effective control it exercised over the migrant vessel.

Criminal Investigation

Next to its substantive limb, the right to life also has a procedural limb, namely the duty to conduct an effective investigation to ensure accountability for loss of life and an effective legal remedy for the victims and their families (Armani Da Silva v. The United Kingdom). The relevant investigation must be carried out on the initiative of the competent authorities, must be adequate, immediate, rapid, and thorough and allow for public scrutiny. It must also provide for the involvement of the victims’ next of kin to safeguard their interests (Al-Skeini and Others v. the UK).

As a rule, mere administrative, disciplinary proceedings or a civil lawsuit aimed at compensating the victims and their families does not fulfil the standards of this duty. An effective investigation to safeguard the right to life should take the form of a criminal investigation (Human Rights Committee, General Comment 6, Makaratzis v. Greece). The investigation needs to ensure the accountability of state actors for deaths caused by them. Given that very often, ‘the actual circumstances of the death are largely known only to state institutions or state authorities, the initiation of appropriate proceedings at the national level, such as criminal prosecution and disciplinary proceedings, depends on the conduct of an adequate formal investigation, which must be independent and impartial. Suppose the investigation is characterised by flaws that undermine its ability to determine the circumstances in which the incident took place or to succeed in identifying the perpetrators. In that case, it will not meet the criterion of effectiveness (Makaratzis v. Greece).

In a similar incident off the island of Farmakonisi in Greece in 2014, resulting in the death of 11 people, a violation of the right to life was found on its procedural limb, as the Court held that the national authorities had not carried out a thorough and effective investigation (Safi and Others v. Greece). In this case, the Court also found an additional violation of the right to life on its substantive limb on account of the failure of Greece to take all reasonably expected measures to protect the applicants (due diligence duties) and a violation of the prohibition of inhuman and degrading treatment. Moreover, in 2022 the UN Committee on Enforced Disappearances expressed concern about the lack of effective investigation and criminal prosecution of enforced disappearances of migrants, including in relation to pushbacks or persons arriving by sea or via the Evros River.

As a party to the Migrant Smuggling Protocol, Greece is required to establish migrant smuggling for financial or other material gain, as a criminal offence and to consider life-threatening situations as aggravating circumstances (Article 6). The Greek law has adopted an even broader approach criminalising the facilitation of irregular entry or stay regardless of material benefit (Law 5038/2023, Article 24). In a similar case in 2017, Greece’s Supreme Court held that it lacked jurisdiction to prosecute the alleged smugglers, as these were arrested on international waters and the vessel was headed towards Italy (Decision 2070/2017).

The investigation is currently ongoing, but it can already be assessed that it will fall short of the standards for an effective investigation if it deals inappropriately with issues of jurisdiction, presents flaws that undermine its ability to determine the facts, and does not cover the examination of the criminal responsibility of the Greek Coast Guard.

Issues regarding the involvement of Frontex

Frontex’s mandate mainly covers border surveillance and return operations. However, a search and rescue situation may arise in the context of Frontex border surveillance operations at sea. In this case, relevant issues may arise with respect to its own legal obligations. The role of Frontex is complementary to that of the host member state, which has the main responsibility over the control of its part of the external borders and the main authority over the joint operation. The Agency, operating under Regulation 2019/1896 and Regulation 656/2014, is mandated to provide technical and operational assistance in the support of search and rescue operations for persons in distress at sea and is under the obligation to render assistance in coordination with the national Rescue Coordination Centre.

The Agency, independently of the member states, is bound by fundamental rights obligations, as enshrined in Regulation 2019/1896 and 656/2014 and the EU Charter of Fundamental Rights. These include the prohibition of non-refoulement, collective expulsion, and the right to life. Therefore, the Agency must fulfil its due diligence obligations in the context of its operations, also when this concerns situations of distress at sea. Moreover, the Agency has considerable monitoring duties, to be conducted especially by the Agency’s Fundamental Rights Monitors and the Fundamental Rights Officer, while the Executive Director has an explicit duty to suspend or terminate operations in case of serious violations that are likely to persist (Art. 46 Regulation 2019/1896).

Frontex has announced that it is preparing a Serious Incident Report regarding the Pylos shipwreck. Moreover, the Fundamental Rights Officer recommends the suspension of Frontex operations in Greece.

Failure to abide by its fundamental rights obligations may result in the legal responsibility of Frontex. It should be independently investigated whether Frontex took all reasonably expected steps after its first sighting of the vessel to protect the lives of the passengers. Moreover, any internal investigation needs to consider not only possible wrongdoings by Greece but also by Frontex.

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