Search and Rescue in the Mediterranean Sea: A Call
for an International Search and Rescue Agency
Andrea L. Curley†
I. Introduction .......................................................................... 1
II. The Crisis in the Mediterranean and the Duty to Search and
Rescue ............................................................................ 3
a. Overview of Migrants in the Mediterranean.............. 3
b. Summary and Criticisms of the Legal Framework for
Search and Rescue at Sea ........................................ 5
III. The Dublin II Regulation and the Refugee Resettlement
Program: Creating Incentives for Irregular Migration... 8
a. The Dublin II Regulation ........................................... 8
b. The Joint EU Refugee Resettlement Programme .... 10
IV. The End of a Valiant Effort: Italy’s Mare Nostrum
Operation ..................................................................... 13
V. Frontex: Responding to the Crisis at Sea .......................... 17
VI. Relying on Frontex: Inappropriate Means to an End ...... 21
VII. Conclusion...................................................................... 26
I. Introduction
In early February 2015, more than three hundred migrants lost
their lives in the Mediterranean Sea while attempting the dangerous
journey from Libya to Italy.1 This tragedy marked the largest loss
of life since Italy ended its search and rescue program, Mare
Nostrum, in October of 2014.2 Italy began the Mare Nostrum
operation shortly after a similar tragedy occurred off the coast of the
† J.D. Candidate 2016, University of North Carolina School of Law; Articles Editor of
North Carolina Journal of International Law. The author would like to thank her family,
friends, and editors for their encouragement and support throughout the writing of this
note.
1 Deborah Ball & Liam Moloney, Hundreds of Migrants Die at Sea in Attempt to
Reach Italy, WALL ST. J., Feb. 12, 2015, at A8, http://www.wsj.com/articles/hundreds-ofmigrants-die-attempting-to-reach-italy-1423652129 [http://perma.cc/VM3F-SRDS].
2 Id.
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small island of Lampedusa in October of 2013.3 The search and
rescue operation was largely successful, rescuing over 150,000
migrants in distress at sea.4 Due to budget concerns and political
pressure, Italy ended the program in October 2014, relying on
Frontex, the European Union’s border surveillance agency, to
manage the crisis.5 Frontex, by Italy’s request, then spearheaded a
joint operation called Triton in the Mediterranean Sea.6 Triton,
however, is ill-equipped to handle the immense flow of migrants.7
As this paper will discuss, joint operations helmed by Frontex are
the wrong solutions for controlling the migrant crisis and, most
importantly, for saving the lives of those that attempt the dangerous
crossing.
This paper focuses on the European Union’s failure to
adequately respond to the migrant crisis in the Mediterranean on
two fronts: (1) the search and rescue operations for migrants
attempting to reach Europe, and (2) cooperation among the Member
States in accepting and processing asylum and refugee claims. Both
areas directly impact the number of migrants losing their lives while
making the treacherous journey across the sea.8 The EU has chosen
to place search and rescue operations within Frontex.9 Frontex,
however, is the wrong framework for addressing the problem, and
as a result, migrant lives are being put at risk.10 Additionally, the
European Union fails to provide for an adequate legal route to
Id.
Ministero Della Difesa, Mare Nostrum Operation, MARINA MILITARE,
http://www.marina.difesa.it/EN/operations/Pagine/MareNostrum.aspx
[http://perma.cc/8XXA-48W6] (last visited Feb. 20, 2015).
5 ‘Turning Blind Eye Not a Solution’ to the Mediterranean Migrant Crisis – UN
Rights Expert, U.N. NEWS CENTRE (Dec. 5, 2014), http://www.un.org/apps/news/story.
asp?NewsID=49526#.VOd4kPn7IrU [http://perma.cc/3RAN-7NAW]; see also Lizzy
Davies & Arthur Neslen, Italy: End of Ongoing Sea Rescue Mission ‘Puts Thousands at
Risk,’ GUARDIAN, Nov. 1, 2014, at 25, http://www.theguardian.com/world/2014/oct/31/
italy-sea-mission-thousands-risk [http://perma.cc/G7UY-YW82]
(describing the
consequences of the termination of Mare Nostrum).
6 Davies & Neslen, supra note 5.
7 Harriet Grant, UN Plan to Relocate Syrian Refugees in Northern Europe,
GUARDIAN, Mar. 12, 2015, at 2, http://www.theguardian.com/world/2015/mar/11/unhcreu-new-approach-syrian-refugee-europe [http://perma.cc/S8WQ-V5BW] (noting the
migration of more the 42,000 Syrians to Italy in 2014 alone).
8 Davies & Neslen, supra note 5.
9 Id.
10 Id.
3
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SEARCH AND RESCUE IN THE MEDITERRANEAN
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Europe for migrants, leading them to depend on smugglers.11
Furthermore, southern coastal states are unequally burdened with
processing refugees and asylum-seekers, contributing to an
unwillingness to commit to national search and rescue operations.12
Part I of this paper will discuss the current migrant crisis and the
legal structure that creates a duty to rescue lives at sea. Part II will
examine the current framework for EU Member States to accept
refugees as well as to process asylum applications and criticize the
lack of cooperation among Member States. The failure on this front
contributes greatly to rising numbers of migrants at sea. Part III will
analyze the success and termination of Italy’s Mare Nostrum
operation and the EU’s response to the growing crisis, focusing on
the Frontex operation Triton. Part IV of this paper will analyze both
the scope and mission of Frontex, as well as the disparate effect the
migrant crisis has on the southern states of the European Union and
the failure of Frontex to address this problem. Finally, Part V of
this paper will suggest ways in which the European Union could
address the current crisis in a meaningful way.
II. The Crisis in the Mediterranean and the Duty to Search
and Rescue
a. Overview of Migrants in the Mediterranean
Over 170,000 migrants arrived in Italy by sea in 2014,13 and an
estimated 3,500 people lost their lives in the Mediterranean Sea
while attempting to reach Europe’s coastal border.14 These grim
figures represent a recent, but sharp, rise in the number of people
attempting the crossing.15 In 2013, only 60,000 made the journey
11 ELSPETH GUILD ET AL., ENHANCING THE COMMON EUROPEAN ASYLUM SYSTEM AND
ALTERNATIVES TO DUBLIN 8 (European Parliament Comm. on Civil Liberties, Justice &
Home Affairs ed., 2015), http://www.europarl.europa.eu/RegData/etudes/STUD/2015/
519234/IPOL_STU(2015)519234_EN.pdf [http://perma.cc/V57X-NQEM].
12 See Davies & Neslen, supra note 5 (discussing continued violence in countries
such as Syria, Eritrea, and the Palestinian territories leading to more people trying to reach
Europe by the Mediterranean Sea).
13 U.N. HIGH COMM’R FOR REFUGEES, CENTRAL MEDITERRANEAN SEA INITIATIVE:
ACTION P LAN 1 (2015), http://www.unhcr.org/531990199.html [http://perma.cc/WBW79QD5] (describing how over 200,000 migrants are estimated to have reached Europe by
sea, over 170,000 of which arrived in Italy).
14 Id.
15 A rescue operation in July 2014 that rescued 8,000 migrants in one, single
weekend provides a stark example of the immense magnitude of the crisis. Press Release,
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across the Mediterranean, with 600 reported total deaths.16 In 2012,
a comparatively small number—22,500 people—arrived.17 The
majority of migrants are from Eritrea, Syria, and other countries
fleeing their home countries torn by war and violence.18 Faced with
terrible conditions in their home countries, migrants are seeking
safety in Europe and placing their money and their lives in the hands
of smugglers.19 Generally, the migrants travel along a route from
Northern Africa to the coast of Malta and Italy, most often departing
from Libya.20 Increasingly, there are reports of smugglers—hired
by migrants in an effort to avoid detection—purposely sinking or
otherwise sabotaging boats with the thought that rescue boats are
nearby to take the migrants.21 With the unseaworthy conditions of
the vessels carrying them, the overcrowding, and the exploitation
by smugglers, the route across the Mediterranean has become one
of the most deadly migrant routes in the world.22 Despite these
frightening conditions and statistics, and with no end in sight to the
violent conflicts in the migrants’ home countries, the rush of
migrants seeking asylum or refuge will not be ameliorated any time
soon.23
The duty of ships to respond to distress calls from these migrant
UNHCR, Urgent European Action Needed to Stop Rising Refugee and Migrant Deaths at
Sea (July 24, 2014), http://www.unhcr.org/cgi-bin/texis/vtx/search?page=search&docid=
53d0cbb26&query=Mediterranean%20migrant%20crisis [http://perma.cc/XSQ6-CHBA].
16 Id.
17 Id.
18 Id.
19 Id.
20 Central Mediterranean Route, FRONTEX, http://frontex.europa.eu/trends-androutes/central-mediterranean-route [http://perma.cc/87NC-82W3] (last visited Nov. 30,
2015). Libya functions as a nexus point for migrants and refugees from the Horn of Africa
and Western Africa. Id. Before the Arab Spring, many migrants and refugees chose to
stay in Libya as the country once provided job opportunities; however, now with the
country in chaos, migrants are fleeing Libya for Europe. Id.
21 FRONTEX, FRAN QUARTERLY: QUARTER 3, at 19–20 (European Agency for the
Mgmt. of Operational Cooperation at the External Borders of the Member States of the
European Union ed., 2015), http://frontex.europa.eu/assets/Publications/Risk_Analysis/
FRAN_Q3_2014.pdf [http://perma.cc/Q8TT-J9PN].
22 Ball & Moloney, supra note 1.
23 U.N. HIGH COMM’R FOR REFUGEES, OBSERVATIONS REGARDING THE ROME
CONFERENCE OF THE EU HORN OF AFRICA MIGRATION ROUTE INITIATIVE 1 (2014),
http://www.unhcr.org/54bd0a409.pdf [http://perma.cc/AYX5-DDGP].
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boats is established in international law.24 Despite this established
body of law,25 there is still no clear mechanism for determining
which state must accept the disembarkation of the rescued
migrants.26 As discussed below, there are also other enforcement
problems with the law.27 These practical shortcomings and legal
issues contribute to commercial and private ships’ reluctance to
rescue, and also to disputes among the Member States about who
has the responsibility to rescue or accept disembarkation.28
Therefore, the European Union should not rely on commercial ships
and Member States to implement search and rescue operations;
there must be an international search and rescue operation focused
solely on search and rescue in the Mediterranean Sea.
b. Summary and Criticisms of the Legal Framework for
Search and Rescue at Sea
There are three main conventions and treaties that govern search
and rescue at sea: (1) the United Nations Convention on the Law of
the Sea (“UNCLOS”),29 (2) the 1974 International Convention for
the Safety of Life at Sea (“SOLAS”),30 and (3) the 1979
International Convention on Maritime Search and Rescue
(“SAR”).31 The clear obligation to rescue persons in distress at sea
is codified in Article 98 of UNCLOS:
24 See United Nations Convention on the Law of the Sea art. 98, Dec. 10, 1982, 1833
U.N.T.S. 3 (requiring member states to “ensure that assistance be provided to any person
in distress at sea . . . regardless of the nationality or status of such a person or the
circumstances in which that person is found”).
25 The International Maritime Organization (“IMO”) monitors and develops the
international law of the sea, including search and rescue. The IMO, which is a specialized
U.N. agency, is responsible for creating a “regulatory framework for the shipping
industry.” Silja Klepp, A Double Bind: Malta and the Rescue of Unwanted Migrants at
Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea, 23 INT’L
J. REFUGEE L. 538, 543 (2011); Introduction to IMO, INT’L MAR. ORG.,
http://www.imo.org/About/Pages/Default.aspx [http://perma.cc/JUZ2-ZT9D] (last visited
Feb. 21, 2015).
26 Klepp, supra note 25.
27 Infra Part I.B.
28 Infra Part I.B.
29 United Nations Convention on the Law of the Sea, supra note 24.
30 International Convention for the Safety of Life at Sea, Nov. 1, 1974, 1184
U.N.T.S. 277.
31 International Convention on Maritime Search and Rescue, Apr. 27, 1979, 1405
U.N.T.S. 119.
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Every State shall require the master of a ship flying its flag, in
so far as he can do so without serious danger . . . to render assistance
to any person found at sea in danger of being lost [and] to proceed
with all possible speed to the rescue of persons in distress, if
informed of their need of assistance . . . .32
While the obligation “to render assistance” is clear, some
Member States problematically interpret the meaning of “distress”
differently.33 Some require that ships relay very clear signals
requesting assistance, despite being overcrowded and dangerously
ill-equipped.34 Others require that the ship be imminently sinking,
and some only require clearly unsafe conditions on the ship.35
As amended, SOLAS provides that a master of ship is required
to provide assistance to anyone sending out a distress signal
“regardless of the nationality or status of such persons or the
circumstances in which they are found.”36 The Amendment also
provides that the state responsible for the search and rescue zone in
which the assistance occurred must provide or secure a “place of
safety” for the rescued migrants to disembark.37 This requirement
does not impose the duty to admit the migrants at the Member
State’s own port of entry, and there is disagreement among the
Member States as to what a “place of safety” entails.38 One
interpretation, provided by the International Maritime Organization
(“IMO”), is “a location where the rescue operations can be
considered as complete.”39 The IMO further clarified, stating that
“[i]f disembarkation from the rescuing ship cannot be arranged
Id. art 98.
Jasmine Coppens, Migrants in the Mediterranean: Do’s and Don’ts in Maritime
Interdiction, 43 OCEAN DEV. & INT’L L. 342, 345 (2012).
34 Silvia Borelli & Ben Stanford, Troubled Waters in the Mare Nostrum: Interception
and Push-Backs of Migrants in the Mediterranean and the European Convention on
Human Rights, 37 REV. INT’L L. & POL. 29, 57 (2014) (citing Hidden Emergency: Migrant
Deaths in the Mediterranean, HUM. RTS. WATCH (Aug. 16, 2012),
https://www.hrw.org/news/2012/08/16/hidden-emergency
[http://perma.cc/VD574VTQ]).
35 See Coppens, supra note 33; Klepp, supra note 25, at 553–54 (describing how the
Maltese will only see a vessel as in distress if that vessel is sinking).
36 International Convention for the Safety of Life at Sea, supra note 30, annex, ch.
V, regulation 33.
37 Id.
38 Seline Trevisanut, Search and Rescue Operations in the Mediterranean: Factor of
Cooperation of Conflict?, 25 INT’L J. MARINE & COASTAL L. 523, 525 (2010).
39 Id. at 530.
32
33
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swiftly elsewhere, the [g]overnment responsible for the SAR area
should accept the disembarkation of the persons rescued.”40 Despite
an official definition from a governing agency, there is still
disagreement among states regarding their duties under SOLAS. 41
In particular, Italy and Spain argue that which state is responsible
for search and rescue when migrants should be responsible for
coordinating the disembarkation.42 In contrast, Malta argues that
the closest port should bear the burden of disembarkation,
regardless of who is responsible for the stretch of ocean from which
the migrants are rescued, because of “geographic realities.”43 This
disagreement may create a delay in states arriving at rescues, deter
commercial ships from rescuing because they fear they will be
delayed with no place to disembark the migrants, and ultimately
contribute to loss of life at sea.44
The SAR, as amended, also provides for the same duty for states
to coordinate and cooperate in order to disembark the rescued
persons at a place of safety and to discharge the rescuing ship from
any duty as swiftly as possible.45 The framework of SAR enables
coastal states to coordinate a search and rescue zone for which each
state is responsible.46 However, just as with SOLAS, there is
disagreement among the European coastal states, especially
between Malta and Italy, as to the delineation of those zones and the
obligations of each state.47 This highlights the main flaw of the
40 Int’l Mar. Org. [IMO], Principles Relating to Administrative Procedures for
Disembarking Persons Rescued at Sea, IMO Doc. FAL.3/Circ. 194 (Jan. 22, 2009),
http://www.imo.org/OurWork/Facilitation/docs/FAL%20related%20nonmandatory%20i
nstruments/FAL.3-Circ.194.pdf [http://perma.cc/9Q7R-EQ33]; see also Trevisanut, supra
note 38, at 530 (describing the IMO’s guidelines).
41 Trevisanut, supra note 38, at 530.
42 Id.
43 Id. at 531–32.
44 Anja Klug, Strengthening the Protection of Migrants and Refugees in Distress at
Sea Through International Cooperation and Burden-Sharing, 26 INT’L J. REFUGEE L. 48,
51 (2014).
45 See International Convention on Maritime Search and Rescue, supra note 31,
annex, ch. 3 (explaining the type of duty SAR provides).
46 See id. at annex, ch. 2 (explaining the framework of SAR).
47 Trevisanut, supra note 38, at 524. For example, in 2009, a Turkish merchant ship
rescued migrants off the coast of Lampedusa in waters that technically belong in the
Maltese SAR zone. Id. at 523. The Italians refused to let the ship into its waters, stating
that the responsibility belonged to Malta. Id. at 524. Malta, however, refused to accept
the ship, denying any responsibility. Id.
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current search and rescue law: The heavy reliance on the coastal
states’ naval forces and the private ships’ willingness to commit to
their international obligations.48
An additional obstacle to commercial and private ships’
willingness to cooperate may be the scrutiny and legal
consequences that ship captains face due to anti-smuggling laws.49
For instance, Tugba Basaran argues that private ships may not be
willing to respond to migrant ships in distress, despite a legal
obligation to rescue, “as to avoid crime by association, costly
investigations[,] and possible prosecutions . . . .”50 Basaran argues
that states must separate rescue operations from border security
operations, claiming that the securitization of rescue operations
through anti-smuggling laws creates a deterrent effect on
humanitarian acts at sea.51 In making this argument, Basaran
discusses recent Italian cases where crews of both commercial ships
and private non-profit rescue ships were prosecuted for smuggling.52
While the crews were either found not guilty or the charges were
dropped as a result of humanitarian exceptions to smuggling laws,
these prosecutions proved lengthy and costly.53 These types of
prosecutions, stemming from rescue attempts, create deterrents to
comply with an affirmative duty to rescue.54
III. The Dublin II Regulation and the Refugee Resettlement
Program: Creating Incentives for Irregular Migration
a. The Dublin II Regulation
Compounding the above problems is the European Union’s
current framework for accepting and processing asylum and refugee
claims.55 The Dublin II Regulation56 provides a framework for
Klepp, supra note 25, at 544.
Tugba Basaran, Saving Lives at Sea: Security, Law and Adverse Effects, 16 EUR.
J. MIGRATION 365, 374 (2014).
50 Id.
51 Id. at 365.
52 Id. at 374–78.
53 Id.
54 Id.
55 Lillian M. Langford, The Other Euro Crisis: Rights Violations Under the Common
European Asylum System and the Unraveling of EU Solidarity, 26 HARV. HUM. RTS. J. 217
(2013).
56 Commission Regulation 343/2003, Establishing the Criteria and Mechanisms for
48
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deciding which member state is responsible for processing an
asylum application.57 The purpose of which is to provide swift
access to procedures for determining refugee status, to prevent
abuse of the asylum system by stopping migrants making claims in
multiple states, and to efficiently identify the state responsible for
the claim.58 Member States’ responsibility for an application is
determined first on the basis of whether the migrant has family
members in the state, and then on whether the migrant already has
entry documents issued in that state.59 If neither of these two criteria
is applicable, then the responsible state is the state in which the
migrant first arrived.60 Most commonly, though, the state of first
arrival is responsible for processing an asylum application despite
the other two criteria having more importance under the
regulation.61 The Dublin II Regulation also creates what are known
as “Dublin transferees,” which are asylum seekers sent from the
country in which they filed an application back to the country in
which they first arrived.62
Therefore, with the increased number of migrants reaching
Europe by the Mediterranean Sea, southern Member States are
unequally burdened with processing migrants, possibly causing
reluctance both to actively provide search and rescue operations and
to interpret its international obligations in the way most favorable
to rescue migrants.63 As Victoria Smythies and Lara Ramazzotti
have described it, the Dublin II Regulation generates “burden
Determining the Member State Responsible for Examining an Asylum Application
Lodged in One of the Member States by a Third-Country National, 2003 O.J. (L 50) 1
(EC), [hereinafter Dublin II Regulation].
57 Country Responsible for Asylum Application (Dublin), EUR. COMMISSION:
MIGRATION
AND
HOME
AFF.,
http://ec.europa.eu/dgs/home-affairs/what-wedo/policies/asylum/examination-of-applicants/index_en.htm
[http://perma.cc/77WFPR83] (last updated June 23, 2015).
58 Dublin II Regulation, supra note 56, pmbl.; see also Langford, supra note 55, at
223 (explaining the purpose of Dublin II Regulation).
59 Dublin II Regulation, supra note 56, arts. 7–9; see also Langford, supra note 55,
at 224 (explaining how a member states’ responsibility for an application is determined).
60 Dublin II Regulation, supra note 56, art. 10; see also Langford, supra note 55, at
224 (explaining where the responsibility lies if the above mentioned criteria are not met).
61 EUROPEAN REFUGEE FUND, DUBLIN II REGULATION: LIVES ON HOLD 6 (2013),
https://lcrien.files.wordpress.com/2013/02/executive_summary.pdf
[http://perma.cc/B9HN-3XEU].
62 Langford, supra note 55, at 224.
63 Id. at 242.
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shifting” instead of “burden sharing.”64 For example, Malta
received 4.9 asylum applications per 1,000 residents in 2012, while
the average in the European Union was only 0.6 for the same year.65
During the formation of the Dublin III Regulation (recasting several
rules of Dublin II),66 a proposal to allow the responsible Member
State to temporarily suspend transfers back to them if the country
was found to be incapable of receiving and absorbing new asylees,
in accordance with international asylum procedures and standards,
was rejected by the European Council.67 This proposal would have
allowed for more effective “burden sharing”68—something that is
sorely needed. As a result of the worsening refugee crisis in Italy
and other Mediterranean States, Italy asked for assistance from
other Member States in taking some of its asylum applications; its
calls for help have gone unanswered.69 As it currently stands, the
Member States with external borders on the Mediterranean Sea are
over-burdened, leading to a reluctance to accept rescued migrants
and to fund robust search and rescue programs.70
b. The Joint EU Refugee Resettlement Programme
Not only does the current framework for processing asylum
applications over-burden some countries, the current framework for
64 Victoria Smythies & Lara Ramazzotti, The Dublin Regulation: A Critical
Examination of a Troubled System, INT’L REFUGEE LAW (Aug. 26, 2013),
https://internationalrefugeelaw.wordpress.com/2013/08/26/the-dublin-regulation-acritical-examination-of-a-troubled-system/ [http://perma.cc/H9S7-E3EE].
65 Id.; Press Release, European Comm’n, Cecilia Malmström, Commissioner Cecilia
Malmström Commemorates the Lampedusa Tragedy (Oct. 2, 2014),
http://europa.eu/rapid/press-release_STATEMENT-14-296_en.htm
[http://perma.cc/VU87-6NPM] (explaining that in 2013, Italy’s total number of asylum
applications rose from 17,350 in 2012 to 26,620). The figures only represent 6% of total
applications in the EU. Id. Additionally, the ratio of asylum applications to national
population was below the EU average. Id. This, however, does not mean that Italy has
not been overwhelmed by the current crisis. Id.
66 Commission Regulation 604/2013, Establishing the Criteria and Mechanisms for
Determining the Member State Responsible for Examining an Application for
International Protection Lodged in One of the Member States by a Third-Country National
or a Stateless Person, 2013 O.J. (L 180) 31.
67 Smythies & Ramazzotti, supra note 64.
68 Id.
69 Langford, supra note 55, at 247. There has been one successful burden-sharing
operation in 2009, in which Member States agreed to relocate 300 asylum seekers from
Malta. Id. Germany took 100 of them. Id.
70 Id. at 218.
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accepting and relocating refugees in and around Europe is woefully
inadequate in sharing the burden. A refugee is someone who has “a
well-founded fear of being persecuted” on the basis of his race,
religion, nationality, membership of a particular social group or
political opinion, is currently outside the country of his nationality,
and “is unable to, or owing to such fear, is unwilling to avail himself
of the protection of that country.”71 An asylum seeker, on the other
hand, is someone who says he is a refugee, but his claim of a wellfounded fear must still be evaluated.72 In 2012, the European
Council established the Joint E.U. Resettlement Program and
Refugee Fund in order to encourage European countries to foster
refugee programs73 (i.e., taking refugees directly from a third
country outside the EU).74 The purpose of the program is to fairly
share the responsibility of resettlement and to create common
resettlement priorities.75 These common priorities are based on two
categories: (1) “persons belonging to a specific category falling
within the United Nations High Commissioner for Refugees
(“UNHCR”) resettlement criteria,” and (2) “persons from a country
or region which has been identified in the UNHCR annual
resettlement forecast and where common action by the Union would
have a significant impact in addressing protection needs.”76
As an incentive, the program provides a Member State that
agrees to take in certain vulnerable refugees (e.g., children and
71 Convention Relating to the Status of Refugees art. 1, July 29, 1951, 19 U.S.T.
6259, 189 U.N.T.S. 150.
72 Asylum-Seekers,
UNHCR,
http://www.unhcr.org/pages/49c3646c137.html
[http://perma.cc/72NH-ABK6] (last visited Nov. 9, 2015).
73 Council Decision 281/2012/EU, 2012 O.J. (L 92) 1 (EU) (amending Decision No
573/2007/EC establishing the European Refugee Fund for the period 2008 to 2013 as a
part of the General Programme “Solidarity and Management of Migration Flows”)
[hereinafter Joint EU Refugee Resettlement Programme]; see also UNHCR Welcomes
Adoption of Joint EU Resettlement Programme, UNHCR (Mar. 30, 2012),
http://www.unhcr.org/4f7589ef9.html [http://perma.cc/X3P7-VMJS] (explaining that the
purpose of creating the joint resettlement programme is to aid refugees from various
nations).
74 Press Release, European Comm’n, supra note 65.
75 Joint EU Refugee Resettlement Programme, supra note 73, pmbl., ¶¶ 2–3.
76 Id. pmbl., ¶ 3. In 2013, the common priorities for resettlement included Congolese
refugees in the Great Lakes Region (Burundi, Malawi, and Rwanda); refugees from Iraq
in Turkey, Syria, Lebanon, and Jordan; Afghan refugees in Turkey, Pakistan, and Iran;
Somali refugees in Ethiopia; Burmese refugees in Bangladesh, Malaysia, and Thailand;
and Eritrean refugees in eastern Sudan. Id. annex.
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women at risk, unaccompanied minors, survivors of violence or
torture, and those with serious medical needs) with a certain amount
of funding.77 The Member State originally received €4,000 for each
vulnerable refugee, €6,000 for each if the Member State has not
availed itself to the funds before, or €5,000 for each if the Member
State has only used the funds once before.78 In 2014, however, the
Council increased the total amount of funding available, giving
between €6,000 and €10,000 depending on the category.79 Despite
this monetary incentive, only half of the Member States have annual
resettlement programs.80 Most telling, however, is that of the
approximately 80,000 refugees that were resettled around the world
in 2013, Europe (including countries that are not Member States)
accepted only nine percent of them.81 Additionally, the UNHCR
estimated that there are approximately 960,000 refugees in the
world in need of resettlement,82 which means only eight percent of
the need has been met.83
However, amid the growing crisis in Syria, seventeen Member
States have pledged to receive more Syrian refugees. 84 While the
pledges represent an improvement in burden sharing, there are still
calls for more solidarity in the European Union.85 European
Commissioner Cecilia Malmström recently stated that “it is
virtually impossible to come to Europe in a legal and safe way.”86
She called Member States’ acceptance of refugees “quite possibly
[their] biggest challenge” and admonished those Member States that
refused to accept refugees through the resettlement program.87
Without robust refugee acceptance throughout Europe, there are
Id. art. 1.
Id.
79 Press Release, European Comm’n, supra note 65.
80 Id. These Member States that have annual resettlement programs accepted 7525
refugees through the UNHCR.
Introduction to Resettlement in Europe, EUR.
RESETTLEMENT NETWORK, http://www.resettlement.eu/page/introduction-resettlementeurope [http://perma.cc/W5GR-6JEB] (last visited Mar. 14, 2015).
81 Introduction to Resettlement in Europe, supra note 80.
82 Id.
83 Id.
84 Id.
85 Id.
86 Press Release, European Comm’n, supra note 65.
87 Id.
77
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very few legal channels open to fleeing migrants.88 The high
numbers of refugees—the highest the world has ever recorded since
World War II89—coupled with the almost non-existent legal path to
Europe90 will lead people to continue making the dangerous journey
across the Mediterranean, tragically leading to more loss of life.
IV. The End of a Valiant Effort: Italy’s Mare Nostrum
Operation
Italy established the Mare Nostrum Operation in October 2013
in order to stem the loss of life at sea.91 In establishing the operation,
the Italian government was responding to a tragedy that had
occurred earlier off the coast of Lampedusa, in which more than 100
migrants, many of them children, perished when their boats
capsized and sank, and about another 200 went missing.92 After the
tragedy, there was a general outcry from Italian and international
leaders for change and action within the European community.93
Later that month, the Italian government created Mare Nostrum, an
extensive search and rescue operation.94 The operation was
necessary “to improve maritime security, patrol sea lanes, combat
illegal activities . . . and tackle the Mediterranean humanitarian
emergency . . . .”95 While the operation was active, there was an
average of five Italian Navy ships and their air units patrolling the
water at any given time.96 The patrols covered an area of roughly
70,000 square kilometers (27,027 square miles) off the coast of Italy
Id.
Introduction to Resettlement in Europe, supra note 80.
90 Press Release, European Comm’n, supra note 65.
91 Mare Nostrum Operation, supra note 4.
92 Lizzy Davies, Lampedusa Boat Tragedy Is ‘Slaughter of Innocents’ Says Italian
President,
GUARDIAN
(Oct.
3,
2013),
http://www.theguardian.com/world/2013/oct/03/lampedusa-boat-tragedy-italy-migrants
[http://perma.cc/Z357-YJEU].
93 Id. The deputy prime minister of Italy said, “We hope the EU reali[z]es that this
not an Italian but a European disaster.” Id. The head of the European Council
parliamentary assembly called for urgent action. Id.
94 Mare Nostrum Operation, supra note 4 (“Operation Mare Nostrum (OPM) was
established by the Italian Government last October 18, 2013 to tackle the dramatic increase
of migratory flows during the second half of the year and consequent tragic ship wreckages
off the island of Lampedusa.”).
95 Id.
96 Id.
88
89
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[Vol. XLI
in the Sicily Straits.97 After a year of enactment, Mare Nostrum
completed 421 operations, rescuing over 150,000 migrants, all of
whom received medical triage.98 Mare Nostrum accomplished this
by deploying 900 military personnel on any given day, with thirtytwo naval units and two submarines taking shifts.99
Mare Nostrum was largely praised by the international
community as a success.100 However, despite the obvious successes
of the operation, Italy defunded and ended the program in October
2014.101 The Italian government faced much opposition from antiimmigrant groups, as well as severe budget constraints.102 Many in
the country were wary of spending nine million Euros a month in
the midst of high unemployment and economic turmoil.103 Some
critics, including the British government, have argued that the
robust search and rescue programs created an incentive for migrants
to make the dangerous crossing, encouraging more people to try to
reach Europe.104 Amidst this political pressure, the Italian
Id.
Id.
99 Id.
100 The U.N. High Commissioner for Refugees praised Italy for its efforts and calls
on Europe to implement similar operations. António Guterres, U.N. High Comm’r for
Refugees, Opening Remarks at the High Commissioner’s Dialogue on Protection
Challenges, Protection at Sea (Dec. 10, 2014), http://www.unhcr.org/54882c149.html
[http://perma.cc/MD54-9PC8]. European Union Commissioner Malmström said, “Italy
has done a formidable job in assisting thousands upon thousands of refugees who have
risked their lives by trying to cross the Mediterranean in rickety vessels.” Press Release,
European Comm’n, Cecilia Malmström, Statement by EU Commissioner Cecilia
Malmström on Operation Triton (Oct. 7, 2014), http://europa.eu/rapid/pressrelease_STATEMENT-14-302_en.htm [http://perma.cc/SU67-VZNS].
101 Ball & Moloney, supra note 1.
102 Id. Mare Nostrum cost nearly nine million euros per month. Davies & Neslen,
supra note 5.
103 ‘Turning Blind Eye Not a Solution’ to the Mediterranean Migrant Crisis – UN
Rights Expert, supra note 5.
104 Nick Squires, How Mediterranean Migrants Have Increased Since Italy Began
Search-and-Rescue, TELEGRAPH (Oct. 29, 2014), http://www.telegraph.co.uk/news/
worldnews/europe/italy/11196014/How-Mediterranean-migrants-have-increased-sinceItaly-began-search-and-rescue.html [http://perma.cc/F2VR-5C7Q]. This argument is a
gross oversimplification of the crisis. See supra Parts II, III (discussing the issues that
contribute to irregular migration in the Mediterranean). In fact, “the number of irregular
migrants arriving by sea in January 2015 increased by around 60% over the same month
last year, when Mare Nostrum was in place.” EU ‘Burying Heads in the Sand’ as
Hundreds More Migrants Die at Sea off Italy, AMNESTY INT’L (Feb. 11, 2015),
https://www.amnesty.org/en/articles/news/2015/02/eu-burying-heads-in-the-sand-as97
98
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government decided to end the program, asking for assistance from
the European community instead, through the auspices of
Frontex.105
This assistance came in the form of a joint operation helmed by
Frontex.106 This joint operation, called Triton, is not a replacement
for Mare Nostrum.107 EU Commissioner Cecilia Malmström stated,
“It is clear that the Triton operation cannot and will not replace Mare
Nostrum . . . . Triton will not affect the responsibilities of Member
States in controlling their part of the European Union’s external
border.”108 Furthermore, Triton is much more limited in terms of
scope and manpower.109 Triton’s focus is on border surveillance in
the Mediterranean Sea, but the operation will provide assistance to
persons detected to be in distress while performing these
surveillance missions.110 Triton initially had a budget of only 2.9
million Euros per month (as opposed to Mare Nostrum’s monthly
budget of nine million Euros)111 and only utilized four aircrafts, one
helicopter, and four vessels on the open sea.112 Additionally, only
sixty-five people carried out the operation.113 Furthermore,
Operation Triton’s patrol area extended thirty miles off the Italian
Coast,114 a sharp decrease from Mare Nostrum’s expansive zone of
hundreds-more-migrants-die-at-sea-off-italy/ [http://perma.cc/N8PR-L45P].
105 See Benjamin Fox, Italian Right Calls for End to Migrant Rescue Programme, EU
OBSERVER (Apr. 23, 2014), https://euobserver.com/news/123904 [http://perma.cc/R5MXEAVM].
106 Press Release, European Comm’n, Frontex Joint Operation ‘Triton’–Concerted
Efforts for Managing Migrator Flows in the Central Mediterranean (Oct. 31, 2014),
http://europa.eu/rapid/press-release_MEMO-14-609_en.htm
[http://perma.cc/DM554WWR].
107 Id.
108 Press Release, European Comm’n, supra note 100.
109 See Press Release, European Comm’n, supra note 106 (“Although Frontex is
neither a search and rescue body nor does it take up the functions of a Rescue Coordination
Centre, it assists Member States to fulfil their obligation under international maritime law
to render assistance to persons in distress.”).
110 Id.
111 Davies & Neslen, supra note 5.
112 Press Release, European Comm’n, supra note 106.
113 Id.
114 Nikolaj Nielsen, Frontex Mission to Extend Just Beyond Italian Waters, EU
OBSERVER (Oct. 7, 2014), https://euobserver.com/justice/125945 [http://perma.cc/36DZK9FM].
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operation.115 After an increase of migrant deaths in April of 2015,
however, the European Union and Frontex responded to criticism
by increasing the operation’s capacity and funding.116 During the
summer months, Frontex greatly expanded Operation Triton’s
patrol area and added eight ships and a helicopter to the mission.117
Despite getting closer to the amount of funding and capacity that
Mare Nostrum had, Operation Triton’s mandate remains
unchanged.118 As discussed below, Triton’s main mission is not to
rescue, which is a concern for many.119 Amnesty International has
emphasized the need for a comprehensive program in order to
enhance rescue capacity.120 Operation Triton has been involved in
many rescue operations,121 but because of its limited scope, the
burden of rescue is still falling onto private merchant ships or
coastal states’ national coast guards.122 Civilian merchant ships are
increasingly responsible for picking up migrants.123 Indeed, Frontex
found that thirty percent of all migrants rescued in September and
October of 2014 were rescued by commercial ships.124 This forces
the merchant ships to travel off their scheduled routes in order to
disembark the migrants safely.125 While acknowledging this
widespread problem, Frontex has underscored repeatedly that
Mare Nostrum Operation, supra note 4.
EU Leaders Agree to Triple Search and Rescue Funds for Mediterranean Sea –
Merkel, REUTERS (Apr. 24, 2015), http://uk.reuters.com/article/uk-europe-migrantsmerkel-idUKKBN0NE2H720150424 [https://perma.cc/EXA8-ZD9X].
117 Frontex Expands Its Joint Operation Triton, FRONTEX (May 26, 2015),
http://frontex.europa.eu/news/frontex-expands-its-joint-operation-triton-udpbHP
[http://perma.cc/8BR3-ET4S].
118 EU Leaders Agree to Triple Search and Rescue Funds for Mediterranean Sea –
Merkel, supra note 116.
119 Id.
120 Latest Mediterranean Tragedy Exposes EU’s Failure on Rescue Operations,
AMNESTY
INT’L
(Mar.
4,
2015),
https://www.amnesty.org/en/articles/news/2015/03/mediterranean-boat-tragedy-eufailures/ [http://perma.cc/U88C-TMAG].
121 Operation Triton – Winter Developments, FRONTEX (Dec. 24, 2014),
http://frontex.europa.eu/feature-stories/operation-triton-winter-developments-qXDamY
[http://perma.cc/5946-3BFS].
122 Latest Mediterranean Tragedy Exposes EU’s Failure on Rescue Operations,
supra note 120.
123 Operation Triton – Winter Developments, supra note 121.
124 Id.
125 Id.
115
116
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Operation Triton “cannot be expected to handle the migrant
challenge alone.”126
V. Frontex: Responding to the Crisis at Sea
Operation Triton is incapable of matching the rescue capacity of
Mare Nostrum because, as this section will demonstrate, Frontex is
poorly structured to address the migrant crisis. Despite this
problem, the European Union has still chosen to respond to this
crisis by placing rescue operations within the purview of the border
surveillance agency.127 Frontex, or the European Agency for the
Management of Operational Cooperation at the External Borders of
the Member States of the European Union, was established in
2004.128 In 1995, the Schengen Convention eliminated internal
border checks within the Member States and created one external
border.129 Frontex was established for the purpose of implementing
common rules and procedures for controlling the external border
and for coordinating cooperation between the Member States.130
The founding regulation mandates Frontex to perform six main
tasks: (1) coordinate cooperation in “the field of management of
external borders,” (2) provide Member States with training, (3)
perform risk analysis, (4) perform relevant research, (5) provide
technical and operational assistance to Member States as required,
and (6) provide Member States with support in return operations.131
Despite the authority that Member States have conferred on the
European Union to implement and manage common rules and
procedures at the external border, the Member States still maintain
the responsibility for the surveillance and management of its own
border.132
Frontex is funded by the Member States through a subsidy from
the EU budget, individual member state contributions, and any fees
Id.
See Basaran, supra note 49, at 370.
128 Council Regulation 2007/2004 of Oct. 26, 2004, Establishing a European Agency
for the Management of Operational Cooperation at the External Borders of the Member
States of the European Union, 2004 O.J. (L 349) 1 (EC) [hereinafter Frontex Regulation].
129 About Frontex: Origin, FRONTEX, http://frontex.europa.eu/about-frontex/origin
[http://perma.cc/27U2-XX4Z] (last visited Mar. 14, 2015).
130 Frontex Regulation, supra note 128, pmbl., ¶ 2.
131 Id. art. 2.
132 Frontex Regulation, supra note 128, ¶ 4; Roberta Mungianu, Frontex: Towards a
Common Policy on External Border Control, 15 EUR. J. MIGRATION & L. 359, 363 (2013).
126
127
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for services provided.133 Additionally, while the executive director
of Frontex is independent,134 and Frontex itself is technically an
independent body,135 Frontex is still guided by the Management
Board, which is comprised of a representative from each member
state and two representatives from the European Commission.136
Thus, because of the structure of Frontex, the Member States still
retain much of their national power in border management
policies.137 It is questionable whether Frontex can create objective
policies and procedures in the field of border control and
immigration.138
In the context of this paper, the most important function of
Frontex is to provide operational support to requesting Member
States.139 Under Article 8 of the establishing regulation, a member
state confronted with circumstances that make following its
obligations to control and perform surveillance on its external
border difficult or impossible may request operational support.140
Frontex may “assist on matters of coordination,” “deploy experts,”
and provide technical equipment to be used during the duration of
the operational support.141 These joint operations occur at the
request of the Member States and can manifest as land, sea, or air
operations.142 The operations must first consult with the Member
States to determine what resources they can contribute, and then an
operational plan must be developed.143 The operational plan is a
very detailed report of the scope and goal of the joint operation,
including what equipment and officers will take part in the
operations.144
Frontex Regulation, supra note 128, art. 29.
Id. art. 25.
135 Langford, supra note 55, at 252.
136 Frontex Regulation, supra note 128, arts. 20–21.
137 Langford, supra note 55, at 252.
138 Id.
139 See id. at 218–19 (describing the importance of Frontex being operational for
immigration and asylum support).
140 Frontex Regulation, supra note 128, art. 8.
141 Id.
142 Types of Operations, FRONTEX, http://frontex.europa.eu/operations/types-ofoperations/general [http://perma.cc/KW7C-JV3G] (last visited Mar. 14, 2015).
143 Roles and Responsibilities, FRONTEX, http://frontex.europa.eu/operations/rolesand-responsibilities [http://perma.cc/C73Z-2GJM] (last visited Mar. 14, 2015).
144 Id.
133
134
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Since 2004, Frontex has implemented nearly fifty sea
operations, most of which occurred in the Mediterranean. 145
Frontex’s main responsibilities in this regard are to perform border
checks at the sea port of entry and to perform border surveillance at
sea.146 According to Frontex, its joint operations are the largest
search and rescue program in Europe.147 In 2013, there were seven
joint operations.148 All the operations had the goal to reduce illegal
migration flow and other cross-border crime.149 The largest of the
operations was the European Patrol Network (“EPN”) Hermes,
which had a budget of just more than five and half million euros and
was hosted by Italy.150
Another major joint operation is the ongoing Operation
Poseidon Sea, which is hosted by Greece.151 According to Frontex,
the mission of Operation Poseidon is to “control irregular migration
flows and other cross-border crime from the Turkish coast and
Egypt towards Greece and Italy,” as well as preventing secondary
irregular migration from Greece to other parts of the European
Union.152 Participating states, as with other missions, provide
technical support and personnel for screening and debriefing
migrants.153
As these operations demonstrate, Frontex—in accordance with
its mandate—coordinates resources and methods for carrying out
border security, not rescue missions.154 These operational aims of
Frontex suggest that the European Union combines saving lives and
border control into one mission, despite the clear mandate of
Frontex in regards to coordinating border control.155
Additional evidence of how Frontex views intercepting and
Basaran, supra note 49, at 371.
Types of Operations, supra note 142.
147 Id.
148 Id.
149 Id.
150 Id.
151 Archive of Operations: Poseidon Sea, FRONTEX, http://frontex.europa.eu/
operations/archive-of-operations/8HPltg [http://perma.cc/B3F5-PWNP] (last visited Mar.
14, 2015).
152 Id.
153 Id.
154 See Basaran, supra note 49, at 372.
155 Id.
145
146
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deterring the smugglers and saving lives at sea as part of the same
mission is Frontex’s European Patrols Network (“EPN”).156 In
order to diminish human trafficking and to catch smugglers, Frontex
established EPN as a long-term solution to border control.157 The
EPN, established in 2007, sought to streamline surveillance, and as
a result save more lives at sea.158 Tugba Basaran criticizes this
approach to search and rescue operations.159 She argues that the
European Union believes that the best approach is to “address
security concerns and rescue efforts together.”160
Frontex, while ostensibly a surveillance and border security
agency, is presumed by the European Union to be the best agency
in which to promote a rescue agenda.161 But the underlying mission
of Frontex, underscored by its founding regulation,162 is to facilitate
solutions to border management through coordination and
information sharing.163 As Basaran indicates, this approach reduces
the current crisis to a simple matter of “insufficient/uncoordinated
rescue coverage, which can be countered by technical solutions
stressing sufficient surveillance and operational coverage.”164
Over the course of its existence, Frontex has faced much
criticism for both alleged human rights violations165 and for not
reducing loss of life at sea.166 One of the main criticisms is its
See id.
Types of Operations: Sea, FRONTEX, http://frontex.europa.eu/operations/types-ofoperations/sea [http://perma.cc/EAN5-SPG6] (last visited Mar. 14, 2015).
158 European Patrols Network, FRONTEX, http://frontex.europa.eu/news/europeanpatrols-network--Weca9H [http://perma.cc/39NW-XQBZ] (last visited Nov. 30, 2015).
159 See Basaran, supra note 49, at 370.
160 Id.
161 Id. at 371.
162 See Frontex Regulation, supra note 128, pmbl., ¶ 2.
163 European Patrols Network, supra note 158 (explaining the European Patrols
Network’s functions).
164 Basaran, supra note 49, at 372. However, Basaran argues that the crisis should be
addressed by eliminating sanctions against smuggling that inadvertently hamper or deter
rescue efforts. Id. I argue, while this element could certainly be a contributing factor, the
issue is much more complex, and there should be an international search-and-rescue
operation to address the crisis.
165 The alleged human rights violations, including illegal push-back of migrants at
sea, is outside the scope of this paper, but it is still a topic of concern for relying on Frontex
for search-and-rescue operations. See Langford, supra note 55, at 249–61 (detailing the
criticisms of Frontex and how Frontex has addressed them).
166 Davies & Neslen, supra note 5.
156
157
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perceived lack of transparency and denial of any responsibility.167
For example, the European Union regularly pushes responsibility
for migrants back onto the Member States.168 EU Commissioner
Cecilia Malmström emphasized, while discussing Operation Triton,
that it is still Italy’s and the Member States’ responsibility to create
search and rescue programs.169 Additionally, Member States will
have to use national means to combat the problem in conjunction
with Frontex joint operations.170 Essentially, the agency falls back
on its mission just to coordinate between the Member States,
claiming that any failure ultimately belongs to the individual
Member States.171 For this reason, there must be an accountable
agency that promulgates and adheres to international law and
standards, because as discussed above under the Dublin II
Regulation discussion, the southern states do not have much
incentive to follow international law.172
VI. Relying on Frontex: Inappropriate Means to an End
Frontex, as structured, is ineffective in combating the loss of life
at sea.173 The mandate of Frontex is to coordinate border control
and surveillance among the Member States along the external
border.174 In other words, it is not a search and rescue agency. Yet,
Member States continue to call on Frontex to perform joint
operations for the professed purpose of rescuing and intercepting
migrants at sea.175 Further, the European Council continues to rely
on Frontex by prioritizing Frontex as a strategic tool in managing
the migratory flows, even though Frontex is not a rescue agency.176
In its Communication on Task Force Mediterranean,177 the
167 See Borelli & Stanford, supra note 34, at 36 (explaining that Frontex has adopted
a stance of denial in response to criticisms).
168 Press Release, European Comm’n, supra note 100.
169 Id.
170 Press Release, European Comm’n, supra note 106.
171 Id.
172 See Langford, supra note 55, at 242.
173 Davies & Neslen, supra note 5.
174 Frontex Regulation, supra note 128, pmbl., ¶ 2.
175 Press Release, European Comm’n, supra note 65.
176 Council Conclusions, Luxembourg Council of the European Union, Taking Action
to Better Manage Migratory Flows 1 (Oct. 10, 2014), http://www.consilium.europa.
eu/uedocs/cms_data/docs/pressdata/en/jha/145053.pdf [http://perma.cc/9AT9-YNWP].
177 Communication from the Commission to the European Parliament and the
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European Commission stressed creating “a comprehensive and
coordinated approach to border surveillance operations led by
Frontex in the Mediterranean” as one way to combat the current
crisis.178 As the example of Operation Triton demonstrates,
however, these joint operations are inadequate for that purpose.179
International law places a positive duty on any person, organization,
or state to rescue anyone who is detected to be in distress at sea. 180
Frontex operations do not fail to perform in that regard. For
instance, nearly 7,000 migrants have been rescued by vessels
involved in Operation Triton that detected distress signals. 181
Despite this positive side to Frontex joint operations, as Frontex
itself has emphasized, Frontex operations cannot perform
comprehensive search and rescue operations.182 The European
Commission has stressed that “Frontex is [not] a search and rescue
body,”183 and “Italy will have to continue making continued
substantial efforts using national means, fully coordinated with the
Frontex operation, to manage the situation.”184
The reality of the situation is, however, that Member States are
unwilling or incapable of implementing robust rescue operations on
the open sea.185 As the analysis of Italy’s Mare Nostrum operation
shows, these operations are expensive and face much internal
opposition.186 Furthermore, where to disembark rescued migrants is
a contentious issue.187 Member States on the Mediterranean are
overburdened with receiving and processing migrants, which leads
Council on the work of the Task Force Mediterranean, at 2, COM (2013) 869 final (Dec.
4, 2013), http://ec.europa.eu/dgs/home-affairs/what-is-new/news/news/docs/20131204_
communication_on_the_work_of_the_task_force_mediterranean_en.pdf [http://perma.cc/
3N2B-W2UF] (stating that the Commission set up the Task Force Mediterranean to
research and propose viable responses to recent tragedies in the Mediterranean Sea).
178 See id. at 16.
179 Davies & Neslen, supra note 5.
180 See supra Part II.B.
181 Joint Operation Triton Extended to the End of 2015, FRONTEX,
http://frontex.europa.eu/news/joint-operation-triton-extended-to-the-end-of-2015NXCwpk [http://perma.cc/SWQ3-WQNB] (last visited Nov. 14, 2015).
182 Press Release, European Comm’n, supra note 106.
183 Id.
184 Id.
185 Langford, supra note 55, at 247.
186 See supra Part IV.
187 See supra Part II.B.
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to debate among the states about who is responsible for rescuing and
disembarkation.188 Therefore, in light of these concerns, it is
impractical to continue to rely on the national governments to fund
and to conduct search and rescue operations in the Mediterranean
Sea.
Stressing more cooperation and burden-sharing as part of the
solution is a common theme among scholars and international
leaders.189 Not only is European-wide support for Frontex missions
required,190 but so is a robust refugee resettlement program, where
all Member States participate.191 As discussed above in Part III, the
Dublin II Regulation and current refugee resettlement programs
place heavy burdens on the southern, coastal Member States. 192
This pressure leads to inadequate national search and rescue
operations and few legal routes into Europe, which in turn
contributes to more irregular migration in the Mediterranean. 193
And without more search and rescue operations, these migrants are
at risk at sea. Interestingly, Silja Klepp points out that individual
Member States, such as Malta and Italy, face low pressure from
other Member States to “fulfill [their] duty to rescue migrants in
distress without restriction . . . because of the lack of burden
sharing.”194 Without other Member States participating in and
calling for comprehensive search and rescue operations, there is
little incentive for Mediterranean coastal states to do the same.195
Another issue is the contention over where to disembark intercepted
and recued migrants.196 Therefore, it is important for Member States
to build a cooperative framework for addressing this issue.197
Member States will then be better equipped to carry out their
See supra Part II.B.
See, e.g., Langford, supra note 55, at 217–18.
190 See Press Release, European Comm’n, supra note 100 (“I therefore hope that
Member States will now heed Frontex’s call for equipment and guest officers . . . . The
Mediterranean is a European Sea and a European responsibility.”).
191 See id. (calling for “a serious effort . . . to establish a truly European program for
the resettlement of refugees”).
192 See supra Part III; Langford, supra note 55.
193 See supra Part III; EU ‘Burying Heads in the Sand’ as Hundreds More Migrants
Die at Sea off Italy, supra note 104.
194 Klepp, supra note 25, at 557.
195 Id.
196 Klug, supra note 44, at 57.
197 See id.
188
189
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international obligations to perform search and rescue operations.
In response to these cooperative issues, EU Commissioner
Malmström stated that “[t]he challenges that the EU is facing
requires all Member States to take responsibility, and offer
protection to those in need.”198 The UN Refugee Agency has
proposed as part of a comprehensive action plan for Member States
“to create legal alternatives to dangerous irregular movements,
including resettlement.”199 Additionally, the United Nations
suggests that Member States “could play a crucial role by increasing
quotas for annual arrivals.”200 These suggestions are in line with the
goal of the Joint EU Refugee Programme: to fairly share the
responsibility of the refugee resettlement,201 but the practicality of
such measures is questionable. The decision by Member States to
accept more refugees is ultimately voluntary.202 The current
program offers monetary compensation for taking in refugees
through the UNHCR,203 and yet, most European countries still have
low quotas for accepting such refugees.204 By looking at the
statistics of current refugee resettlement205 and taking into account
the current budget concerns in Europe, a change in refugee
resettlement does not seem likely in the immediate future. Although
not arguing that such a goal should not be sought, an immediate
measure to dramatically reduce the effect of loss of life at sea must
be in place—preferably a European Union search and rescue
agency—and Frontex cannot adequately fulfill this need.
A comprehensive search and rescue agency would not solve the
migrant crisis on its own.206 It would, however, be the first, and
best, step in reducing the catastrophic loss of life.207 The United
Press Release, European Comm’n, supra note 100.
U.N. HIGH COMM’R FOR REFUGEES, supra note 13.
200 Id.
201 Joint EU Refugee Resettlement Programme, supra note 73, pmbl., ¶¶ 2–3.
202 Id.
203 Id. art. 1.
204 U.N. HIGH COMM’R FOR REFUGEES, supra note 13.
205 See supra Part III.B.
206 See Patrick Kingsley et al., Migrant Tragedies: What Can Be Done to End the
Crisis?, GUARDIAN (Apr. 21, 2015), http://www.theguardian.com/world/2015/apr/21/
migrant-tragedies-how-to-stop-the-slaughter [http://perma.cc/3YX8-2ERJ] (discussing
problems in the migrant crisis in addition to the lack of a comprehensive search-and-rescue
agency).
207 See Davies & Neslen, supra note 5 (asserting that Mare Nostrum’s comprehensive
198
199
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Nations has proposed a comprehensive plan for addressing the
crisis.208 In its Central Mediterranean Sea Initiative (“CMSI”), the
UN Refugee Agency proposed twelve steps within three areas of
“action”: (1) “steps within the European Union,” (2) steps in
collaboration with countries of transit and first asylum,” and (3)
“steps in collaboration with countries of origin.”209
The first action area includes steps such as enhancing search and
rescue operations, encouraging commercial ships to perform
international obligations, clarifying procedures and places of
disembarkation, and creating an equitable distribution of asylumseekers and refugees through resettlement and relocation
throughout the Member States.210 One part of this area is already in
motion.211 The United Nations has proposed a one-year pilot
program for relocating Syrian refugees in southern Member States
to the northern states.212 The program would still be dependent on
voluntary willingness of Member States and would have to uphold
the Dublin II Regulation.213
The second area stresses creating legal routes through visa and
refugee programs, providing institutional support for countries of
first arrival, and communicating with those along migrant routes
about the dangers of continuing across the Mediterranean.214 The
third area encourages Member States to continue to provide
humanitarian relief to the countries of origin.215 This plan is
comprehensive and designed to tackle the issue on all fronts.216 In
an ideal world all steps of this plan would be implemented. In
reality, however, many steps depend greatly on the willingness of
search-and-rescue strategy was superior to the Frontex initiative).
208 See U.N. HIGH COMM’R FOR REFUGEES, supra note 13.
209 Id.
210 Id.
211 Harriet Grant, UN Plan to Relocate Syrian Refugees in Northern Europe,
GUARDIAN (Mar. 11, 2015), http://www.theguardian.com/world/2015/mar/11/unhcr-eunew-approach-syrian-refugee-europe [http://perma.cc/NSC6-SXGE].
212 Id.
213 Id.
214 U.N. HIGH COMM’R FOR REFUGEES, supra note 13.
215 Id.
216 Special Mediterranean Initiative, UNHCR, http://www.unhcr-northerneurope.
org/in-focus/special-mediterranean-initiative/ [http://perma.cc/7T7B-QC4H] (last visited
Nov. 14, 2015).
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Member States.217 If there was an international search and rescue
agency or operation, however, then Member States’ unwillingness
would not be as much of a factor.
VII. Conclusion
Many lives are being lost weekly, if not daily, in the
Mediterranean Sea.218 Conflicts in Syria and Eritrea are displacing
hundreds of thousands of migrants, and many are attempting to
reach the shores of Europe through dangerous means.219 Something
drastic must change at the international level in order to adequately
address this crisis. As the example of Italy’s Mare Nostrum
demonstrated, it is impractical to rely on the Member States’
abilities to implement robust search and rescue operations because
they are financially and politically unsustainable, despite the
success exhibited by Italy’s program.220
It is also impractical to rely on Frontex, the only existing framework
available. Frontex was created to ensure coordination among the
Member States in maintaining effective border surveillance and
control at the external border.221 It is not a humanitarian or a rescue
agency. Its joint operations do not have the scope or funding
necessary to drastically decrease the loss of life at sea. 222 This
current crisis is very complex (this paper does not and cannot touch
on all of its facets) and a comprehensive action plan is needed on all
fronts to completely address the migrant crisis. It is important,
however, to have a measure in place to protect those migrants at risk
of dying at sea. While the ultimate goal is to reduce the immense
number of people choosing to cross every year, there need to be
ways to reduce the risk of death in the meantime. There must be an
international search-and-rescue body for addressing this crisis.
217 See, e.g., id. (implementing resettlement or relocation programs, enhancing
reception facilities and screening procedures, and creating legal alternatives to irregular
migration).
218 See Davies & Neslen, supra note 5 (predicting the death toll to multiply as a result
of Europe cutting back on its patrol of waters being used by migrants).
219 Id. (discussing continued violence in countries such as Syria, Eritrea, and the
Palestinian territories leading to more people trying to reach Europe by way of the
Mediterranean Sea).
220 See Ball & Moloney, supra note 1; Davies & Neslen, supra note 5 (stating that
Mare Nostrum cost nearly nine million euros per month).
221 See Types of Operations, supra note 142.
222 Davies & Neslen, supra note 5.