The European Union’s approach to maritime Search and Rescue (SAR) operations in the Mediterranean Sea is a confused affair. Somewhere between the protection of its borders and its obligations under international maritime and humanitarian law lies the EU’s response to migrant people travelling from parts of the Middle-East and Africa to reach Europe’s shores by sea.

Regulation (EU) No 656/2014 sets out the framework within which the EU has established rules for the surveillance of its external sea borders. The Regulation builds upon the Schengen acquis – of which incidentally the UK is not a part and is therefore not bound by the Regulation or subject to its application. Through this Regulation, the EU’s border protection agency, Frontex, is first and foremost vested with responsibility to prevent unauthorised border crossings, to counter cross-border criminality and to apprehend or take other measures against those persons who have crossed the border in an irregular manner. Second to this, Frontex is duty bound to fulfil its border control function whilst ‘contributing’ to the protection and saving of life at sea. Herein lies the paradox.

As discussed in previous blogs, the duty to render assistance to those in distress at sea is a maritime tradition enshrined in law by various international maritime conventions. Similarly, the duties to provide international protection to persons fleeing persecution and to observe the principle of non-refoulement are enshrined in law by the 1951 Refugee Convention and the European Charter of Fundamental Rights. The Regulation clearly stipulates that its provisions should be applied by Member States and the Frontex Agency in accordance with these rights and principles.

In the context of migration in the Mediterranean Sea it is therefore nigh on impossible to give effect to the border control component of the Regulation without risk of breaching these rights and principles. Whether by rescue or interception, when coming into contact with migrant boats, those maritime units deployed as part of Operation Triton are seemingly bound to follow one of two courses of action. Either they must render assistance and provide a ‘place of safety’ – in accordance with the principle of non-refoulement. Or, where an intention to claim asylum is expressed give effect to this right by guaranteeing access to a fair and effective asylum procedure for those intercepted and who are in need of international protection – again in accordance with the principle of non-refoulement.

Intercepting and returning migrant people to the place of embarkation has occurred and continues to occur in the cases of Turkey and Morocco. However, Tunisia is seemingly no longer considered a ‘place of safety’ in the context of non-refoulement and Libya as a broken state which is not a signatory to the 1951 Refugee Convention obviously falls well below the threshold.

As more EU maritime assets are committed to Operation Triton it is clear that they come as part of an expanding surveillance operation designed to provide the necessary intelligence to thwart the smuggling and trafficking networks facilitating the migrant people putting to sea. Ruefully, they do not come as part of an expanding humanitarian operation designed to protect and save life.