Ian Urbina is the director of The Outlaw Ocean Project, a non-profit journalism organization based in Washington D.C. In this column, he writes about offshore crimes.
Too big to police, and under no clear international authority, the high seas constitute perhaps the wildest and least understood frontier on the planet. Impunity is the norm not just because of a lack of enforcement but also due to the cast of characters out there who, with questionable credentials and motives, are left to take up the slack when governments do little to protect. From my experience offshore, I have seen how thin the line is between civilisation and the lack of it – and why better and more governance is essential to the future of our species and the planet. But, sometimes, the institutions created to help govern the seas end up acting as instruments to facilitate crimes.
For instance, see the International Maritime Organization (IMO), a specialised agency of the United Nations responsible for measures to improve the safety and security of international shipping. Maybe you never heard of them, but in 2018, the IMO formally acknowledged an at-sea search-and-rescue zone for Libya. In receiving UN recognition, Libyan authorities stretched their jurisdiction nearly a hundred miles off of Libya’s coast, far into international waters, and halfway to Italian shores.
In these waters, tens of thousands of refugees crossing the Mediterranean Sea each year are captured by the EU-funded Libyan Coast Guard and sent to brutal prisons in Libya where murder, extortion and rape are common. Before the IMO announced it, European countries and independent humanitarian groups predominantly handled the job of tracking migrant boats on the Mediterranean Sea. But after the announcement, the Libyan Coast Guard captains can claim – as they routinely do – that they have UN- recognised jurisdiction over the area even though the migrants are typically already in international waters. As a result, merchant ship captains think they are legally required to obey orders from the Libyan Coast Guard to hand over migrants.
Lawmakers and humanitarian advocates say that the Libyan search-and-rescue zone violates the relevant UN convention and has been used to facilitate a worsening of human rights abuses and violation of the law of non-refoulement, which prohibits the return of people to war zones or other places where they are likely to be tortured or otherwise harmed. This situation puts private ship owners and operators in a legal bind. In 2021, an Italian ship captain was sentenced to a year in prison for doing exactly as he had been told by the Libyan Coast Guard, carrying migrants back to Tripoli in violation of humanitarian law forbidding non- refoulement. The IMO has tried to offer useful guidance on these matters to such captains, but the organisation has failed to solve the legal contradiction that it helped create. The IMO advises ship captains of their legal requirement to rescue migrants at sea, instructing them to obey the orders given by the country, such as those from Libya, who claim jurisdiction over a search-and- rescue zone. But the same IMO document also says that the migrants must be taken to an officially recognised “place of safety”, which the UN has said Libya is certainly not.
But why would the IMO announce a zone that facilitates such legal violations and fails to meet the conditions of the convention that the IMO is meant to uphold? They were, by no means, the primary architect of the expanded Libyan search-and-rescue zone. That responsibility belongs to the EU and Italy, both of which pushed for its creation while also making clear that the core requirements of the convention were not being met. In 2016, the Italian Coast Guard was asked by the European Commission to support Libyan authorities in identifying and declaring this zone.
In a submission in 2017 to the IMO, Italy made clear that Libya had no rescue coordination centre, instead promising that one would be created. The years passed, and no such centre was built. In 2021, responding to questions in the European Parliament, the European Commission continued to speak of its aspirations to build a “functional rescue coordination centre,” and an internal EU report from January 2022 makes clear the centre is still unable to meet its basic obligations.
In addition to that, the EU, through its border agency Frontex, runs surveillance flights over the Central Mediterranean, giving the data to the Libyan Coast Guard to help them catch migrants. In essence, there is a hidden war unfolding at sea while the EU uses Libya as a proxy force to wage this war.
A wide variety of scholars, lawyers, advocates and lawmakers say IMO has the authority and duty to help fix the problem by delisting the Libyan search-and-rescue zone, which would at least prevent IMO complicity in the Libyan Coast Guard claiming extended jurisdiction in the illegal delivery of migrants to places of abuse. Such pressure on the IMO is not just coming from outside. In a 2019 report, the IMO’s sister organization, the United Nations Human Rights Office, also called on the maritime organisation to take responsibility for its role in facilitating violations by the Libyan Coast Guard. The IMO “should reconsider the classification of the Libyan search-and-rescue zone until such time as the Libya Coast Guard demonstrates it is capable of conducting search-and-rescue operations without putting migrants’ lives and safety at risk,” the UN human rights office wrote.
IMO has said it was “not authorised to remove or deregister” the zone and that it has minimal power or responsibility to sanction at-sea search-and-rescue zones, but merely “disseminates the information,” which brings us back to the same problem of lack of governance. Countries that are party to the International Convention on maritime search and rescue can propose amendments for the IMO to play a clearer role in verifying information it publishes tied to search-and-rescue zones and avoid further abuse of the regulations. A two-thirds majority of voting countries is required for the amendment to be adopted.
This snapshot reminds me that the ocean is outlaw not because it is inherently good or bad but because it is a void. Whether brutal or beautiful, it depends on how this space is filled and how we are working to regulate and guide all parties. We have tended to ignore what happens far from land, but if we don’t bring accountability and change to the instruments that allow crimes to happen offshore, we can forget about ever protecting or conciliating this frontier.
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