Irregular Migration Across the Mediterranean Sea: Problematic Issues Concerning the International Rules on Safeguard of Life at Sea

Abstract

Migration by sea is a phenomenon which is largely associated with irregular flows and growing concern by destination States about border control and integrity of restrictive migration policies. Additionally, the human rights’ costs have been the object of a growing attention in recent years.As far as the Search and Rescue regime is concerned, the Mediterranean Sea is a crucial scenario where tensions among some European States (regarding the delimitation of SAR zones and the interpretation of relevant international obligations) and the difficulties encountered by them to manage a comprehensive dialogue with transit or sending countries are aptly exploited by smugglers in order to maximise their profits, too often at the expense of migrants’ life and safety. Additionally, some features of EU migration law (rules on entry at external borders, policy of return of irregular migrants, Dublin system, and absence of a fully-fledged mechanism of burden sharing) exacerbate the relations when controversial situations arise. Recent States practice is illustrative of this state of affairs.SAR provisions are inherently accompanied by certain elasticity, in order to take into account the variety of concrete situations. However, in a regional context characterized by political divergences among European states and between the latters and transit countries, additional and dedicated solutions are required. To this view a careful analysis is necessary of the recent IMO and EU’s attempts to establish additional rules on SAR matters, aimed at clarifying the relevance of human rights considerations and at filling the current gaps in identifying the notions of distress and rescue, and the place of disembarkation.Are those exercises satisfactory? Or should other (and more substantial) factors be addressed with more courage by the EU member states and by the EU itself? Is the EU Task Force Mediterranean a valid approach, or is it just a fig leaf?