Thursday 6 December 2018
Geneva. Update to 3 December Press Release on flagging of the Aquarius
Switzerland. The country of Henry Dunant, father of humanitarian principles, has responded to a popular request and parliamentary motion to allow the Aquarius, Search and Rescue (SAR) vessel of SOS Méditerranée and Médecins sans Frontières, to sail under the Swiss flag.
On Friday, the Swiss Parliament has responded to a parliamentary inquiry on the possibility of letting the Aquarius sail under the Swiss flag, stirring a national debate in the country. The Swiss Federal Council stated that the rescue operations instead require a sustainable and coordinated effort to manage the admission of refugees.
First, rescue operations should not be confused with the admission of refugees. Under the 1974 International Convention for the Safety of Life at Sea (SOLAS), the United Convention on the Law of the Sea (UNCLOS) and the SAR Convention, all vessels present in the area of a distress case ought to undertake all efforts possible to rescue lives at risk at sea. Moreover, while this is a highly political debate, the response additionally reflects a gross misunderstanding of the subject as a person in distress at sea should be rescued regardless of their asylum or refugee status.
Rescue of lives misunderstood as refugee case management
While the Swiss have recently voted against the explicit supersedence of the national constitution over international law, the Federal Council appears to justify the refusal through a negation of the aforementioned Conventions. An argument brought to the fore to justify the decision is the need for a European solution to ensure safe disembarkation ports for the persons rescued at sea. All vessels involved in a rescue operation are under the obligation to disembark the rescued persons to a place of safety.
In light of the above, it is worth noting that should an asylum seeker then be returned to a place where he/she risks persecution, the master of the vessel could risk prosecution as he/she would act against the principle of non-refoulement. Therefore, the issue of refugee admission put on the forefront of a debate on whether a humanitarian NGO-led SAR vessel could fly the Swiss flag appears inappropriate and misleading.
Moreover, while the European Union institutions are desperately debating coordinated efforts to tackle the so-called “migration crisis” for the past years, it appears important to remind that such effort has existed under Mare Nostrum and have been shut down after a year of operation (2013-2014). As a useful reminder, this has been at the source of the emergence of civil-society led rescue operations in the Mediterranean Sea. SAR NGO vessels fill a vacuum by the EU and its Member States.
What about merchant vessels?
There is only one SAR NGO vessel operating in the central Mediterranean Sea, the Mare Jonio. It is therefore worth noting that in the absence of SAR vessels, as also noted by the International Chamber of Shipping, merchant vessels will inevitably be increasingly involved in mass rescue operations, for which they may not necessarily be trained and for which they may not have the equipment.
Out of sight, out of mind? Not really. While Switzerland is debating whether to ensure that a humanitarian vessel can set sails in the central Mediterranean, and far right and populist parties of European Union Member States are exploiting the issue to fuel national political turmoil, people are still fleeing Libya on flimsy boats. Yesterday, reports stated that another 15 migrants have died in a desperate attempt to cross the Mediterranean Sea. The emergency situation has now become a prolonged crisis that will probably be viewed with future generations as a political fiasco.
The justification for refusing the Aquarius a Swiss flag appears to purposefully redirect the attention towards issues that should be tackled separately. As previously mentioned, the rescue of lives in distress at sea is an obligation under internationally recognized Conventions. On Friday, the possibility to rescue more lives at sea has been denied to SOS Méditerranée, an NGO known for its respect towards well-established humanitarian principles and its professionally trained maritime rescue crew.