Migrant rescuers need predictable framework mechanism | Kahin Ismail

Kahin Ismail, representative of the United Nations High Commission for Refugees, outlines the urgent need for a reform of the rules of engagement... without losing sight of basic human decency

The recent Aquarius stand-off has pinpointed a lack of international consensus regarding the precise chain of responsibility in such cases; and in the end, the impasse was broken only through the voluntary intervention of Spain. Effectively, this means that the underlying root problem remains unresolved. Would you agree with that assessment? And what do you think the next step after Aquarius should be?

Obviously, in such situations, the most important imperative is the protection and well-being of refugees and migrants: the people who are taking these very dangerous journeys across the central Mediterranean. We can talk about the root causes of migration, and how we can address them... but in this kind of immediate situation, the safety of well-being of the people involved is paramount.  And it should be paramount across the board, among all the countries involved, and other stakeholders.

Of course, we are very grateful for Spain to have stepped in to defuse the situation, and to take those people in after spending a few days in the middle of the sea: with women and children, sick people, and pregnant women among those who were on board the Aquarius. It was a very unfortunate situation, but it was not a first; it has happened in the past. In fact, we’re seeing a bit of a déjà-vu, in terms of incidents like this being repeated. What is missing, and perhaps what we should focus on, is [a discussion on] how to have a predictable framework and mechanism, that allows countries to fulfil their obligations in terms of rescue at sea – which is an international, legal obligation – but also what happens to the people who are rescued: whether by a state, by NGOs, or by private vessels.

In the Aquarius scenario, for example, the rescue was carried out by six different private boats... and in this, we need to maintain a robust rescue capability; but we also need predictability, because these merchant ships, or private boats, need to know where the disembarkation would be; where these people would be taken to. Otherwise, next time round they will not deviate from their course to pick up people stranded in the middle of the sea. A predictable mechanism is what is lacking at the moment. And of course, this is not going to be the last incident of this kind. We are going to see many more...

One might argue that this mechanism you refer to is already in place: there are international maritime legal obligations, as well as treaties like Dublin II, which specify (among other things) that people rescued at sea should be taken to the ‘nearest safe port of call’. This doesn’t seem to work in practice. Why not, in your view?

First of all, I would say that principle of the ‘nearest safe port’ is something that should be safeguarded. It is enshrined in conventions, and by best practice, and that should be retained. But we need to go beyond that, and determine where the precise responsibility for disembarkation lies. Because that is ultimately the issue: especially for countries in southern Europe, on the front line when it comes to receiving and disembarking those crossing the central Mediterranean. Italy and Malta should not be the only countries where these people end up staying; there should be a mechanism of relocation, responsibility or burden-sharing in that regard. And the Dublin Treaty reform, that is now under discussion, should be seen in that context as well. The treaty is now going through a process of revision, and may be facing a bit of a difficulty... but we need to find a solution whereby, first of all, the rescue at sea takes place within a predictable framework; and secondly, how we can distribute the burden among European countries.

But questions arise even over the existing rules. In the present scenario, for instance – where the central Mediterranean is a major migration route – the ‘nearest safe port of call’ can only realistically ever mean either ‘Italy’ or ‘Malta’. Doesn’t Italy, therefore, have a point, when it argues that the rules themselves are unfairly tilted against southern states?

Italy and Malta should not be the only countries where these people end up staying; there should be a mechanism of relocation, responsibility or burden-sharing in that regard

It is true, but first of all I think that we need to keep the entire issue in perspective. The numbers, in themselves, are manageable. That is one thing we need to keep in mind, and take a global view. Nine out of 10 of people who are forcibly displaced, globally, are not in Europe: they are in developing countries... the countries neighbouring where they had fled. What is lacking [in the context of Europe] is a coherent, comprehensive mechanism of responsibility sharing. It is not realistic to assume, and insist, that the countries that receive or disembark these people, should be the countries where they end up staying indefinitely. When the discussions on Dublin II reform come into play – and we’re not there yet – there should be a de-coupling between disembarkation, and processing, for example. Basically, if you are the country receiving the disembarkation, there should already be a framework in place that takes into consideration that people may not stay in the country; they might be distributed according to capacity, or other factors. That is where we need to focus the discussion; otherwise we will keep seeing the same stand-offs; and, of course, the people who will be suffering are the migrants and refugees caught up in the middle. [...] So yes, there is definitely also a need to clarify the rules of engagement. And maybe we can talk about the roles that others play, apart from states... such as NGOs, for instance. But ultimately, if it was clear where the disembarkation would take place... if it was clear how the mechanism of burden-sharing would work out afterwards...the rescue operation itself would never have been an issue, in my view. Now, however, people might be thinking... if I rescue people at sea, I might end up in that situation: with no one coming to assist in terms of burden-sharing. That is the concern for countries on the front line, like Malta, Italy, Spain and others.

Speaking of private rescue boats: does the UNHCR have any information about vessels not responding to distress calls for that reason... i.e., to avoid entanglements of the Aquarius variety?

No: as in the Aquarius case, merchant ships and privates do respond, and have always responded, to distress calls at sea. And this has been the case since time immemorial: international law, and basic human decency, demands that the principle of saving lives at sea is always respected. What we have seen, in fact, is that these ships have been doing a very commendable job over the years. But then, of course, these are merchant ships, on their way to somewhere. They need to know where to take those people, and who to hand them over to. That has to be clarified. If not, it could erode the age-old principle of coming to the assistance of those in distress.

Another difference between countries and private vessels is that there would be consequences for any ship which (for instance) ignored an SOS. However, there are no immediate repercussions when countries ignore their international obligations. Doesn’t this challenge or undermine our entire notion of international law?

I’m not an expert in international maritime law; but in terms of international law in general: countries sign these conventions voluntarily... and of course, this is also something that appeals to their sense of values, their decency... it is something the international community agrees is a positive thing to adhere to. And for the most part, we should also say that countries do abide by their obligations. We see all sorts of commerce and transactions taking place at sea, for example: it is all regulated, and for the most part it works. But there is no such thing as ‘enforcement’, to the extent that you have in national law: where if you violate a traffic law, there will be a traffic cop to stop you. Most countries adhere to these conventions because they believe in these things. The problem arises when you have this sort of dispute: and of course, it must be resolved around a table, and discussions will have to ensue... because it is in the best interest of everyone to have a clear framework in place, so that there is no ambiguity, and people are no longer exposed to danger as a result of such disagreements.

Earlier, you mentioned discussions that are already underway to reform Dublin II, and you sounded optimistic...

[Smiling] I’m always optimistic...

... no doubt, but it must be said that your optimism is not widely shared. Prime Minister Joseph Muscat described the proposed reform as ‘implausible’. The Italian government is likewise sceptical. On a realistic level: what are your own projections?

Naturally I am not privy to the discussions at state-level, but at UNHCR we feel that there has to be a reform. [...] I understand that there seems to be a stalemate, and that there are difficulties that the process is going through. But we have no other option but to come to some sort of an agreement, because countries that are taking in refugees and migrants have to be shown solidarity by others in Europe. As I said earlier, the numbers are large, but they are manageable... for a continent that is very wealthy, and that has actually pioneered the 1951 [Refugee] Convention. That convention was born in Europe: it was European values and principles that actually gave birth to it. So, Europe has a history and tradition, and is still contributing significantly to the protection and assistance of refugees globally. That is where my optimism comes from, that they will find a solution to this issue.

Speaking of the numbers involved: UNHCR recently published statistics suggesting that the number of Mediterranean crossings has actually declined in recent years....

That is the case. The numbers speak for themselves. In 2017, we had 172,000 coming across the central Mediterranean: most of them obviously going to Italy. In 2018, we have had 37,000... and of those, 15,000 went to Italy, the rest to Spain and also Greece...

But 2018 isn’t over, and summer has only just begun....

True, but if you look at the projections, and examine the trend: comparing where we were this time last year, to today, the number is significantly lower...

How do you account for that? Could it be a reflection of policies that are actually working, for instance?

There are a number of factors involved: there have been some interventions in the countries of origin... there has been some information-sharing, to warn people of the dangers of the crossing. As you know, the discussion tends to focus mostly on Libya, but the process of migration itself begins in the country of origin. My agency, UNHCR, focuses specifically on refugees: I am talking about people actively fleeing for their lives. In Africa right now, there are 12 ongoing wars; we also have the situation in Syria, that has been going on for some years... in Afghanistan and elsewhere... in all these places, people are genuinely fleeing for their lives, and for the safety of their families. We need to keep this is mind. The discussion should not only be about ‘keeping migrants out’. Europe, as I said, has a history and tradition of helping refugees. It should open its doors to people genuinely seeking protection and safety.


Part of the problem, however, is that even genuine refugees end up being put to sea by unscrupulous, criminal human trafficking organisations. This has raised questions regarding whether NGOs and rescue boats are unwittingly ‘colluding’ with criminality, by responding to ‘distress signals’ designed purposely to rope them in. Is this a concern for the UNHCR?

When, in the last few years, NGOs became more active in terms of search and rescue, they did so to fill a vacuum that they saw. If you look at the figures in the last few years, I think they have contributed significantly in terms of saving lives. That is without doubt. But while NGOs have a role to play, and have to date played it very commendably... it is true that the concept of search and rescue at sea needs to be given a clearer infrastructure in which to function. Ultimately, responsibility for this sector lies with states, not with NGOs. Because when private vessels do pick up people at sea... they still have to deliver them to a country, somewhere...

We have so far talked about other countries’ responsibilities in the Aquarius case. What about Malta’s? The government claims it has fully abided by its obligations. Do you agree? Should Malta have taken in those 620 migrants?

For us, any country that was in a position to take them in, should have taken them in immediately: whether it’s Italy, or Malta, or elsewhere. But of course, this is what this whole dispute is about: the different interpretations of where the responsibility lies. But yes, we think that countries have to have a manageable way of fulfilling those obligations. Malta is a small country, but it has played its fair share... the Prime Minister offered assistance, and to evacuate medical cases from the Aquarius. We appreciate that. And I also think that Malta has come a long way, from the days of automatic detention of people upon arriving... which is now in the past, and will hopefully remain in the past. But we need to keep in that direction...

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