The Legal Duty of the EU to Criminalise Failure to Rescue at Sea
Professors Valsamis Mitsilegas, University of Liverpool, and Elspeth Guild, Queen Mary University of London, argue in favour of the criminalisation of failure to rescue people seeking asylum at sea, as serious fundamental rights violations are outlined in a damaging report.
In September 2022, the long-awaited report by OLAF, (European Anti-Fraud Office), on Frontex was unofficially made public. Its contents had been made available to the European Parliament’s LIBE committee earlier in the year and the director of Frontex resigned at the end of April, a direct result of the damning contents of the report. The report sets out in great details eight cases where Frontex staff: (a) witnessed but did nothing to stop illegal push-backs of boats full of people seeking to make protection claims in Greece, (b) failed to make serious incident reports of fundamental rights violations or (c) relocated surveillance planes so that they would not record evidence of illegal push-backs. Clearly these meticulously documented illegal acts and cover ups are representative rather that definitive of the unfortunate activities of the agency in the eastern Aegean since the opening of Frontex’s operation there.
As the OLAF report sets out in section 184.108.40.206, one of the key elements of the legal framework within which these actions are deemed to be unlawful is Article 98 of the UN Convention on the Law of the Sea (UNCLOS). This article requires that: “every state shall require the master of a ship flying its flag, in so far as he[she] can do so without serious danger to the ship, the crew or the passengers:
- to render assistance to any person found at sea in danger of being lost;
- to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;
- after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.
Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.”
This is known as the duty to assist persons in distress and applies to all ships. UNCLOS was ratified by the EU by Council Decision 98/392, which means that the EU is also bound by all the rights and obligations under UNCLOS, which are within the competences of the EU. As the OLAF report stresses among the situations covered by Article 98 UNCLOS are those where boats are severely overcrowded and do not have sufficient propulsion to make progress towards a port, particularly if sea conditions are rough. According to OLAF, where authorities do not intervene in such circumstances or as, in the cases which it examined, create extra danger for the boat and its passengers, there is a strong argument that “a clear breach of the duty” to rescue under Article 98 UNCLOS has occurred.
OLAF further rejects the argument that as Frontex was only witnessing the illegal acts (at least in some of the cases) and the illegal acts were carried out by the Greek coast guard, Frontex itself is not responsible. According to OLAF, Frontex is bound by EU fundamental rights obligation to make reasonable efforts to ensure that all participants, not just its own staff, act in conformity with fundamental rights. The more persistent the fundamental rights violation is, the more actively Frontex can be expected to take measures to stop it. This did not happen, as the report demonstrates.
So, the EU through one of its agencies, Frontex, has been in breach of its duty under Article 98 UNCLOS, a breach which continued over time and includes at least eight specific and thoroughly documented examples. What should the EU do next?
As UNCLOS is an international agreement (although binding on the EU) it does not specify what sanction should accompany a breach of this provision, let alone an egregious and sustained one sanctioned by the very director of an EU agency. This is left to national law or in this case the EU itself. Article 83(2) Treaty on the Function of the European Union states: “If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned…” It is apparent that the effective implementation of a Union policy, that is as regards the obligation to rescue at sea, part of EU Transport policy, is at risk. This obligation stems from EU ratification of UNCLOS and its corresponding duty in international law. The lawlessness exhibited by one of the EU’s own agencies, Frontex, which emboldened national coast guards to act with apparent impunity in breach of EU law, makes essential the approximation of EU criminal law to provide an effective sanction against such action which contravenes both UNCLOS and the Charter of Fundamental Rights.
The EU should therefore adopt a Directive requiring Member States to criminalise all action contrary to Article 98 UNCLOS. The TFEU contains an express legal basis for such an instrument, Article 83(2). Under this ‘functional criminalisation’ legal basis (Mitsilegas, EU Criminal Law, hart, 2nd ed, 2022, chapter 2), the Union has competence to adopt criminal offences and impose criminal sanctions where approximation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures. This legal basis has been used to adopt EU substantive criminal law to ensure the effective implementation of EU policy in areas as diverse as the protection of the environment (the Environmental Crime Directive) and the integrity of the internal market/financial markets (Market Abuse Directive).
Article 83(2) can clearly act as the legal basis for a Directive introducing criminal offences and imposing criminal sanctions for failure to rescue at sea, as such criminalisation is essential for the effective implementation of the Union’s transport policy. The link between rescue at sea and EU transport policy has been affirmed recently by the CJEU in its Sea Watch ruling. Criminal law is essential for the effective implementation of EU transport policy in ensuring that the duty to rescue at sea is performed in a meaningful and effective manner, in full compliance with EU law, including with the Charter of Fundamental Rights.