‘Liquid Rights’: Negotiating Migration Frontiers in the Central Mediterranean

Guest post by Dr Antonella Patteri, Associated researcher at the Department of Politics, Birkbeck, University of London. Antonella is on Twitter @AlmaPataramon.  

Attempts to block and redirect NGO ships conducting Search and Rescue (SAR) operations in the Central Mediterranean have been made in the past by former Interior Minister Matteo Salvini, who in 2018 and 2019 blocked the disembarkation of migrants from different rescue ships (on the practice of ‘closed ports’ see work by Cusumano and Gombeer). Italy’s hard-line approach to fighting ‘illegal migration’ is also key to read today’s politics of rescue at sea. Following a decree ban to NGO-run vessels issued by the newly installed Italian Interior Minister Matteo Piantedosi on 4 November 2022, the government initially prevented the German-flagged ship Humanity 1 carrying 179 migrants from reaching Italian ports except for the purpose of ‘selective disembarkations’ stating that the rescue vessel “forced the situation by entering into territorial waters”. In other words, according to the newly drafted measures, the NGO violated rescue procedures by not properly coordinating rescues that took place outside Italian SAR zone of jurisdiction.

Following the separate rescue of about 1,000 migrants at sea, in addition to the NGO vessel Humanity 1, Rise Above, Ocean Viking and the Geo Barents all issued requests for a Port of Safety in Italy. After weeks spent stranded at sea due to blocked disembarkations, and in contrast with requirements set by international law, disembarkations of migrants were initially conducted selectively according to an assessment of vulnerability done by Italian health authorities. The criticism raised against Italy caused a diplomatic row with France where the Ocean Viking was assigned a Port of Safety to smooth out the political impasse on 10 November 2022. SOS Mediterranée denied circumventing procedures, stressing that in the absence of Member States/EU coordinated rescue at sea, it is their duty to intervene and save lives.

In this context, Italy’s approach to SAR seems to weaken the efforts that the EU and 18 Member States (and 3 associated states of the European Union) are making to implement the Solidarity Mechanism, adopted on 22 June 2022, which coordinates the relocation of migrants rescued in SAR events. Notably, the role of NGO vessels operating in the Mediterranean has been also addressed by the European Commission in a statement released on 9 November 2022 stating that irrespective of the circumstances in which rescue took place, migrants’ disembarkation in a place of safety should be considered a priority. On November 21st, the Commission proposed a 20-measure action plan to deal with the challenges faced in the Central Mediterranean. Despite this, it remains unclear how the imperatives of rescuing migrants at sea and protecting their rights, and that of securing the borders of the EU through its southern Member States, will hold together.

Indeed, the question of protecting human rights at sea is further complicated in the Mediterranean by the existence of overlapping SAR zones (such as those of Malta and Italy, signatory to different versions of the SOLAS Convention, or Greece and Turkey) while other coastal states, such as Libya, “officially accepted the existing SAR regime and the obligation it entails only in July 2017, but it has not yet signed the SAR Convention and remains unable to independently conduct effective operations” (on the abdication of state responsibility on SAR, see work by Cusumano and Pattison). This has led to the above-mentioned repeated standoffs where different claims are continuously being made about which state should be performing rescues, and in which port people should be disembarked (see Heller and Pezzani). These conflicting maritime legal regimes often clash with states’ practices in a context where the 1951 Refugee Convention, International Human Rights Law, the Law of the Sea, and frameworks of border security, human smuggling and trafficking intersect.

Such uncertainty has been addressed legally. In 1982, the United Nation Convention on the Law of the Sea (UNCLOS) established the various degrees of sovereignty of nations. It established SAR zones across the high seas, where coastal states have the duty to organise operations for assisting people in distress and coordinate rescue operations. Within the limits of operational safety, people at sea have to be rescued regardless of their identity or status so that “sovereign jurisdiction takes second place to international law, customary law and universal norms concerning the aid and rescue of people in peril at sea” (on humanitarianism at sea see work by Pugh). The lack of conceptual clarity about terms such as ‘distress’, ‘assistance’, ‘rescue’ and ‘disembarkation’ in a ‘place of safety’, which entails responsibility for processing potential asylum applications in accordance with the principle of non-refoulement, has led to disputes over which states should intervene in different stages of rescue (on ‘liquid’ sovereignty at sea see work by Pezzani and Heller).

The space of the Mediterranean Sea, a liquid frontier of unbundled and unequal sovereignty, is “speedy and secure for certain goods and privileged passengers, slow and deadly for the unwanted” (this is well evident in the report on the left-to-die-boat by Pezzani and Heller). The unwanted are not only migrants but also the self-organised network of NGOs. As we can see from Italy’s new far-right led government’s anti-NGO latest position, the constant criminalisation of civil fleets works to recast humanitarian agents as facilitators of illegal migration especially when conducting SAR operations: “the humanitarian purpose of SAR has become compromised in the name of border security with ensuing consequences” (see work by Ghezelbash, Moreno-Lax, Klein and Opeskin on the securitisation of SAR). Ultimately, in this space of patchy maritime borders, the duty to intervene to rescue lives is called into question anytime that the rights of migrants are rendered ‘liquid’ through the uncertainties connected to contentious, and ‘liquid’, sea frontiers.

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