With a decree dated September 14, 2019, the Libyan government claims to exercise sovereign powers even on the international waters within its SAR (Search and Rescue) zone, in which most shipwrecks occur. Authorities in Tripoli claim the power to pre-authorize actors to operate and threaten to arrest those who do not comply. All this is in violation of international law.
On September 14, 2019, the presidential council of the Libyan government of national accord issued a decree aimed at regulating relief operations in the so-called c.d. “Libyan SAR zone”; this is the area where Libya, through a unilateral communication to the IMO, assumed responsibility for coordinating search and rescue operations. Regardless of the actual existence and recognition of a “Libyan SAR zone”, already repeatedly questioned because Libya does not effectively meet the obligations imposed by the SAR Convention itself, the Decree is an obvious attempt to claim jurisdiction over waters that are international. This is a violation of both the SAR Convention itself (see art. 2.1.7. Of the Annex to the Convention) and customary law, which limits jurisdiction over coastal waters to 12 miles and which require all States to ensure the rescue of shipwrecked persons.
Although Libya has not ratified the United Nations Convention on the Law of the Sea (CNUDM), it is bound to respect the rules of customary international law codified in the Convention itself.
Article 3 of the Decree would like to extend its scope of application to all vessels involved in SAR operations, both to state ships used in missions of international organizations, and to private ships. However, such a provision appears in contrast with the principle of exclusive jurisdiction of the State on boats that fly its flag in international waters, and even more so on the substantial immunity of state ships (Articles 95 and 96 of the CNUDM, corresponding to customary international law ).
Articles 5, 16 and 17 of the decree are particularly disturbing. Article 5 provides that organizations that intend to carry out search and rescue activities in the so-called “Libyan SAR zone” must obtain a permit from the Libyan authorities beforehand. This rule stands in stark contrast both to the principle of freedom of navigation which applies in all international waters and to the obligation for all commanders to provide assistance to boats in distress.
Even more concerning, and in clear contrast with international law, are Articles 16 and 17, which give Libyan authorities the competence to stop ships that do not comply with these provisions, seize and escort them to Libyan ports with a view to judicial proceedings. Such coercive measures on foreign ships outside territorial waters is incompatible with international law, which allows approaching and boarding foreign ships in international waters only if they are engaged in acts of piracy, in slave trade or, in particular conditions, are engaged in abusive transmissions (see article 110 of the CNUDM, which also corresponds to customary law).
Worthy of attention is also Art. 12 of the Decree, according to which the survivors cannot be disembarked on Libyan territory, except in exceptional and urgent cases. This provision seems appropriate considering the reality on the ground: as repeatedly stated also in the judicial decisions, Libya cannot be considered a place of safety and taking migrants back to Libya constitutes a serious violation of international law and fundamental rights. It seems nevertheless paradoxical that the Libyan government declares sovereign powers and claims control over all operations its SAR zone and at the same time denies responsibility for the landing, thus failing to discharge its obligations to cooperate in identifying a disembarkation place foreseen by the SAR Convention.
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