Grey areas in maritime search and rescue legislation must be ironed out if tragic deaths of migrants at sea are to be avoided, says a Council of Europe investigator.

An intriguing picture of the events that led to tragedy on the seas between Libya and Italy, has been pieced together by Tineke Strik, the Dutch Senate member appointed to head an investigation.

It reveals how poor communication and different interpretations of maritime responsibility can result in unnecessary tragedy.

The investigation was announced last June, following reports that 61 migrants had died at sea after their appeals for rescue had been ignored by armed forces in the Mediterranean.

Although the boat was within Libya’s search and rescue zone, its distress call was first received by Italian authorities.

The Italians said they informed both Nato and the Maltese Armed Forces of the distress call, and sent out a message to vessels within the area.

According to international law, the rescue operation for a boat in distress is the responsibility of the state in whose search and rescue zone it is in.

But Libya – at the time in the throes of a civil war – could not respond to any calls for assistance.

“In such a situation, who assumes responsibility?” Ms Strik asked.

“The Italians say that they fulfilled their obligations and were not obliged to do more. Maltese authorities confirm they received information of the call, but say that Italy made no requests for assistance.

“Nato is still trying to verify whether it received the message, but says that even if it did, responsibility would lie with the flag state of whatever ship responded.”

Nine of the 70 migrants aboard the boat survived, and Ms Strik spoke with four of them separately in the course of investigations.

2,000

the number people believed to have died in the Mediterranean this year trying to escape Libya

“They say that a helicopter with the word ‘Army’ on it hovered above them, dropped some basic food supplies and gestured to them to stay calm. But it left and never returned.”

Ten days later and in dire straits, the survivors say they came across a military ship which, again, did nothing.

It has not yet been established where the helicopter or military vessel came from, with Ms Strik still waiting for Nato documentation and EU satellite imagery to establish their provenance.

“Everyone knew about this boat, everyone knew of its existence and distress call. But nobody did anything, because there was no search and rescue responsibility, or at least no clarity as to who was responsible.”

However, she was happy with what she had seen in her brief visit to Malta. “I’ve been impressed with what I’ve seen. Everything is logged and listed and it appears to be straightforward to track back and see what happened.”

Disagreement over the second, more controversial phase of search and rescue operations – where rescued people are to disembark – further exacerbated misunderstandings, Ms Strik pointed out.

“Currently, there’s this anomaly in international law where you have two different obligations in this regard, sitting side-by-side and contradicting the other.”

There is the traditional position adopted by Malta: that individuals rescued at sea must be taken to the nearest safe port.

But 2006 amendments to the International Convention for the Safety of Life at Sea and International Convention on Search and Rescue specify that the state in whose search and rescue zone people are rescued is responsible for their disembarkation.

These amendments place Malta, with a search and rescue zone in excess of 250,000 square kilometres, at a significant disadvantage. It has disavowed the amendments from the get-go.

But Malta has no obligation to maintain such a large zone, and its protestations open it up to claims that it is trying to have its cake and eat it.

“The natural response would be ‘Make your search and rescue zone smaller’,” Ms Strik smiled. “But there are other benefits to having such a large zone.”

Setting disembarkation disagreements aside, Ms Strik was adamant that the status quo of having two parallel, contrasting obligations was unacceptable.

“How can you reconcile the two? There is a need to emerge with one clear rule for everyone to follow. Allowing people to die because of legal grey areas is not acceptable.”

It is estimated that up to 2,000 people have perished in the Mediterranean this year while trying to escape the African continent. Ms Strik is concerned by the apparent indifference to the deaths.

The investigation will now turn to the International Maritime Organisation and an analysis of the legal obligations and guidelines states have in such cases.