Blog post by Laura Salzano, University of Barcelona
In 2023 there has been an alarming surge in lives lost at sea, surpassing the tragic toll of the preceding year according to UNHCR data. This grim truth is etched deeper by two catastrophic shipwrecks that unfolded close to the European shores. The first, off Steccato di Cutro (IT), suffered almost 100 fatalities, while the second, in Pylos (GR), claimed the lives of over 500 individuals. These devastating incidents occurred under the watchful eyes of the European Border and Coast Guard Agency (EBCGA or Frontex), forcing a grave reckoning with the Agency’s role and its Search and Rescue (SAR) obligations.
This post focuses on the very essence of ‘distress’ and the legal sources that define it in the context of SAR operations at sea. By focusing on the EBCGA’s SAR role, it examines whether the Executive Director of Frontex possesses the authority to independently define the concept of ‘distress’ within the framework of EU and international provisions.
Frontex’s interpretation of distress is not a trivial matter. Prior to the tragic Steccato di Cutro shipwreck, Frontex relayed information to Italian authorities regarding a vessel carrying nearly 200 individuals without life jackets, but did not send out any distress signal (Frontex statement). In response, Italian authorities launched a law enforcement operation, but challenging weather conditions compelled them to abandon the mission, resulting in the harrowing loss of nearly 100 lives. Yet, confronted with adverse weather and maritime conditions, the GDF was unequipped to navigate rough seas, forcing them to abandon the mission and return to shore. The competence for conducting a SAR operation rests in turn with the Coast Guard, which was never activated, despite them having the necessary equipment to reach the distressed vessel’s location in stormy conditions. As report, this chain of events ultimately resulted in the loss of nearly 100 lives.
The Misguided Notion of Distress
This shipwreck underscores the EBCGA’s discretionary interpretation of ‘distress.’ Following the Steccato di Cutro tragedy, the ED testified before the ‘Civil Liberties, Justice and Home Affairs’ (LIBE) Members of the European Parliament. During this session, when questioned about the Agency’s responsibilities regarding SAR duties, he made the following statement:
“You could argue that a small rubber boat trying to cross an ocean or, in this case, the Mediterranean is always in distress. That is true. But I think our threshold is a bit higher than that.”(LIBE Parliamentary Committee Meeting, 21.03.2023, min. 17.23).
However, contrary to the Director’s assertion, the notion of distress is not subject to Frontex’s review. In fact, his interpretation openly diverges from that of the International Law Commission, which characterizes it as ‘a situation of serious danger’, ‘but not necessarily one that jeopardizes the very existence of the person concerned’ (Yearbook of International Law Commission (ILC), Vol. II (1979), p. 134, (10). The ILC’s position is coherent with the objective protected, suggesting that distress emerges before lives are obviously threatened, a point at which rescue operations might yield limited success. As argued, the unseaworthiness of a vessel can serve as an indicator of distress by itself (Moreno-Lax), hence activating the associated obligations.
Moreover, the ED’s interpretation finds no support under EU law either. The Sea Border Regulation (SBR), governing maritime Frontex-led Joint Operations, indirectly embraces the ILC’s position: it reiterates that border surveillance must be carried out in conformity to SAR duties as outlined in international law, in particular the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the European Convention for the Protection of Human Rights and Fundamental Freedoms (recital (8)).
The SBR also outlines explicit elements to be considered in such cases. At Article 9(2)(f)(ii), it explicitly mentions the ‘seaworthiness of the vessel and the likelihood that the vessel will not reach its final destination’ (emphasis added) among the factors to be considered and communicated to the Maritime Rescue Coordination Centre (MRCC) for the assessment of the distress phase. It also enlists other elements, including:
- the request for assistance coming from the vessel, but it cannot be the sole determinant of a distress situation (Art. 9 (2)(f)(i), a recurrent situation in the Central Mediterranean Sea, as reported by Alarmphone);
- the number of people on board in relation to type and condition of the vessel (Art. 9 (2)(f)(ii));
- the availability and capability of safety, navigation and communication equipment (Art. 9 (2)(f)(vi)); the presence of disabled people on board, or in need of medical assistance, pregnant women or children, or dead bodies (Artt. 9 (2)(f)(vii), (ix), (viii)).
These are all recurring elements commonly observed in cases of distressed boats at sea. Moreover, the argument that Frontex is not explicitly listed among the ‘participating units’ of maritime operations in the SBR does not suffice to justify the Agency’s divergent interpretation of distress. As explained, when the SBR entered into force, it referred to the Agency as running under the 2011 amendment. Back then, Frontex was still acting as a mere support to the Member States: the shift to a fully fledged Agency was marked only later, with Frontex’s 2016 revision. The SBR Regulation is fully applicable, with no dispute on its objective scope. Therefore, its application should cover, mutatis mutandis, the EBCGA in its present form, governed by the Regulation 1896/2019. This clarification is not merely formal: in fact, Frontex now enjoys much wider powers and autonomy than under the previous regimes, as it can now deploy its own standing corps (even outside European soil) and substantially stepped up its cooperation with third countries. Operating a dynamic reading of the SBR would only be coherent with the new Agency’s mandate.
The consequences of Frontex’s flawed interpretation of the legal concept of distress are tragically evident in the lives lost off Steccato di Cutro, but the implications of this decision go far beyond this single episode. The Agency’s insistence on shifting SAR responsibilities to Member States, coupled with a skewed threshold for distress, raises once again critical questions about its commitment to fundamental rights and about EU’s rule of law stability. As the EU Ombudsman’s own-inquiry on Frontex role in SAR operations unfolds, it becomes imperative to hold it accountable. Ensuring that legal frameworks are not mere words on paper but effective instruments safeguarding lives at sea is essential in a ‘system based on the rule of law’ (Les Verts). In the face of this non-existent enigma around the notion of distress fabricated by Frontex, judicial review of the Agency’s responsibility for fundamental rights violations at sea is urgent and long overdue.
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