Search and rescue at sea needs to be more effective to prevent tragedies. The right to life is one of the most fundamental of human rights. In the maritime context, it has been codified by the duty to render assistance to persons in distress at sea and by search and rescue obligations. Government as well as private vessels have a duty to assist people and crafts in distress at sea. Such duty is regulated by multiple instruments of the international law of the sea. [34]
For a description of the duty to rescue and render assistance to persons in distress at sea, see FRA (2013), Fundamental rights at Europe’s southern sea borders, 27 March 2013, section 2.2. See also CJEU, Joined Cases C-14/21 and C-15/21, Sea Watch, 1 August 2022, paras. 105 and 119.

Those few you see escap’d the storm, and fear,
Unless you interpose, a shipwreck here.
What men, what monsters, what inhuman race,
What laws, what barb’rous customs of the place,
Shut up a desert shore to drowning men,
And drive us to the cruel seas again?

Virgil: Aeneid I, 538-541(Translation made available by The Project Gutenberg)

As this quote from the Latin poem ‘Aeneid’, on the legend of Aeneas well illustrates, the sea has long presented great danger to humans.

For vessels and persons who are at difficulty at sea, international law of the sea defines three emergency phases: an uncertainty, an alert and a distress phase. ‘Distress’ is the highest emergency phase and corresponds to a “situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance.” [35]
International Convention on maritime search and rescue, 1979, UN Treaty Series, Volume No. 1405, Annex, Chapter 1, at 1.3.

Although search and rescue operations, in principle, fall outside the scope of EU law, two scenarios are relevant for the purpose of this analysis in which EU law and, hence, the Charter of Fundamental Rights, come into play. The first is when rescue operations are part of Frontex-led joint operations at sea. The second situation is when search and rescue are part of EU integrated border management activities, as regulated in the European Border and Coast Guard Regulation. [36] Regulation (EU) No. 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union; OJ L 189, 27 June 2014, pp. 93–107,

In the first scenario, Regulation (EU) No. 656/2014 sets out the applicable common rules for sea, air and other assets deployed as part of Frontex-led joint maritime operations. The regulation describes when a vessel or the persons on board should be considered in one of the three emergency phases (uncertainty, alert and distress). It lists the factors to take into account for determining the uncertainty, alert or distress phase of an emergency situation such as seaworthiness; number of persons on board; availability of fuel, water and food; the presence of qualified crew; the presence of deceased persons or persons in need of urgent medical assistance; the sea conditions. [37]
Regulation (EU) No. 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union; OJ L 189, 27 June 2014, pp. 93–107, Art. 9.

All assets deployed are under a duty to inform the responsible maritime search and rescue coordination centre as soon as they encounter an emergency, regardless of the phase in which the emergency is, under Regulation (EU) No. 656/2014. [38] Ibid.
This duty also applies to aerial surveillance assets, such as fixed wing aircrafts and drones.

The second scenario where EU law regulates certain aspects of search and rescue is when it occurs in the context of border management activities, as is typically the case with overcrowded and unseaworthy vessels carrying migrants and refugees.

Under Article 3 of the European Border and Coast Guard Regulation, search and rescue is one of the components of integrated border management. [39]
Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No. 1052/2013 and (EU) 2016/1624, OJ L 295, 14 November 2019, pp. 1–131, Art. 3 (1) (b). See also European Commission (2023), Communication establishing the multiannual strategic policy for European integrated border management – Annex I, COM(2023) 146 final, Strasbourg, 14 March 2023, Component No. 2 (pp. 5-6).
In addition, the scope of the European border surveillance system, Eurosur, also has the purpose of contributing to saving lives among other objectives. [40] Ibid., Arts. 18 and 19.
So called “Eurosur fusion services” include the tracking of vessels or the monitoring of designated maritime areas, for example through the deployment of Multipurpose Aerial Surveillance [41] Ibid., Art. 28.
. This also includes a duty to inform the competent maritime rescue coordination centres of cases of persons in distress at sea. [42]
Frontex, Frontex situation centre, Multipurpose aerial surveillance (MAS), 2018.

Although search and rescue operations are primarily regulated by international law, the duty to search and rescue at sea is also covered by EU law, when there is an EU actor (typically Frontex) involved or when it is carried out as part of European integrated border management or triggered by Eurosur services. In these scenarios, the EU is bound by the Charter to respect the right to life, including by putting in place the necessary preventative measures, that the positive obligation flowing from the case law of the ECtHR entails.

A strict interpretation of what constitutes a situation of distress – which under international law triggers the duty to provide immediate assistance – is likely to delay life-saving actions and to increase the risk of drowning.

However, it is up to national authorities in charge of search and rescue to determine, the most appropriate course of action in an emergency based on their expertise.

FRA previously expressed concerns as early as 2013 about the strict interpretation of what constitutes a situation of ‘distress’ by one Southern European Member State, Malta. In practice, this meant that if migrants on an unseaworthy vessel preferred to continue their trip, the authorities ‘shadowed’ their boat and, if needed, assisted them in their onward journey until the boat entered the adjacent search and rescue area. [43]
FRA (2013), Fundamental rights at Europe’s southern sea borders, 27 March 2013, section 2.3.
. Since then, FRA understands that also some other Member States increasingly use similar practices.

When directly or indirectly involved in an emergency situation the EU (within the limits of its existing competences) [44] Article 51 (1)-(2) of the Charter and Article 6 (1) of the Treaty on European Union state that the Charter does not extend the application of Union law or the competences of the Union as defined in the Treaties.
and its Member States have a due diligence duty. For example, these situations include when Frontex identifies an unseaworthy vessel through its surveillance activity, or its assets are involved or when the EU funds the search and rescue capabilities of Member States. They have a due diligence duty stemming from the Charter and/or the ECHR as interpreted by the ECtHR to prevent their actions or inactions from contributing to violations of the positive obligations [45]
For the positive obligations of EU entities, including Frontex, under human rights law, see e.g. Gkliati, M. (2021), Systemic Accountability of the European Border and Coast Guard. The legal responsibility of Frontex for human rights violations. University of Leiden, E. M. Meijers Instituut (PhD dissertation), November 2021, p. 92; and Fink, M. (2017), Frontex and Human Rights: Responsibility in 'Multi-Actor Situations' under the ECHR and EU Public Liability Law. University of Leiden, E. M. Meijers Instituut (PhD dissertation), December 2017, pp. 324-325. Frontex’s positive obligations are also reiterated in Article 80 of the EBCG Regulation, which requires the Agency to guarantee that fundamental rights are complied with.
which are part of the protection of the right to life.

To achieve this, the EU and its Member States could consider taking the following actions.

1. The European Commission and EU Member States could agree to record all search and rescue operations where Frontex is operationally involved or present (either through surveillance or patrolling activities) and provide the recorded information to Frontex, EMSA or another independent entity.
2. The European Commission could propose to the recently re-activated European Contact Group on Search and Rescue [46]
   See European Commission, Register of Commission Expert Groups and Other Similar Entities, European Contact Group on Search and Rescue (E03752). to develop best practices on search and rescue in the context of border management.
3. The EU Member States should review their search and rescue protocols based on best practices and, if necessary, adjust them for operations involving unseaworthy boats carrying migrants and refugees, refraining from a too strict definition of “distress”.
4. The European Commission could consider linking EU funding to maritime border management to the adoption of operational protocols which duly reflect best practices and ensure timely assistance to people who are in imminent danger at sea. Adherence to such protocols could be assessed during meetings of the monitoring committees established under the funds.
5. Authorities involved in search and rescue operations should ensure that their staff is adequately trained on de-escalation techniques, to facilitate the creation of a relationship of cooperation with the migrants and refugees onboard, thus facilitating the rescue operation.
6. The European Commission recommended that Frontex should carry out needs assessment and provide increased operational and technical support to Member States, “including the deployment of assets, to improve their capabilities and thus contribute to saving lives at sea” and to fully use the capacity of Eurosur for search and rescue. [47]
   European Commission (2023), Annexes to the communication establishing the multiannual strategic policy for European integrated border management, COM(2023) 146 final, Strasbourg, 14 March 2023, annex 1 (EIBM components), component No. 2, pp. 5-6.
   
   
   A larger presence of naval and aerial assets in areas where shipwrecks are more likely to occur, according to risk analysis, would, in FRA’s view, contribute to more effective search and rescue in the context of border management.