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Irregular migration after the Aquarius incident: moving beyond the law. A reflection on Fink and Gombeer

Published on July 5, 2018        Author:  and
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Introduction

Last month, EJIL: Talk! published a piece by Fink and Gombeer on the legality of Italy and Malta’s recent failure to provide a safe haven to a rescue vessel Aquarius. Essentially, the authors concluded that the refusal by these states to open their harbours is ‘regrettable, at the very least, but not necessarily unlawful.’ On their view, for the reasons elaborated in their analysis, neither the law of the sea nor human rights law have been ‘evidently’ breached. It follows that these two branches of law, in the context of ‘Aquarius-like incidents’, provide rather no avail to asylum seekers; in other words: law has its own limits.

The fate of Aquarius and her passengers is yet another example of an endless list of scenarios where people from predominantly war-torn, repressed or impoverished territories often attempt to irregularly cross international borders; a large number of them seeking help, safety and a better life. This and similar events illustrate not only that the handling of the arrival of asylum seekers, especially in Europe, has fostered multiple crises, but also that irregular migration will not cease to occur. Hence, the need for a long-term, responsible and visionary solution is evident.

Fink and Gombeer reflect de lege lata, and their diagnosis is valid and all the more relevant nowadays, de lege ferenda, as the governance and management of migration is largely being reformed, on multiple levels, precisely to address contemporary challenges and expectations. Among others, the European Union (EU) attempts to reform its migration and asylum policy, predominantly the so-called Dublin system, and the United Nations (UN) is expected to adopt its Global Compact on Migration by late 2018.

Having read Fink and Gombeer’s analysis, we cannot help but reflect on their main conclusion in light of these reforms. These authors basically identify a ‘gap’: the law has its own limits. We, in turn, reflect further on filling the said ‘gap’. We ask what can be done to overcome the limitations of law in order to ensure more holistic protection of asylum seekers?

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The Aquarius Incident and the Law of the Sea: Is Italy in Violation of the Relevant Rules?

Published on June 27, 2018        Author: 
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On 10 June, Italy refused Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée, access to its ports and the disembarkation of more than 600 rescued migrants on Italian territory. This decision of the Italian authorities has elicited a considerable amount of criticism, both by European governments (Malta, Spain, France) and by the academic world (eg, this statement by a group of Italian lawyers). The post by Melanie Fink and Kristof Gombeer offers a valuable review of the incident and sheds light on various issues raised mainly with respect to maritime law and human rights law. Although Aquarius arrived safely in Valencia a week later, on Sunday 17 June, there are serious concerns that this was just the beginning of similar incidents, particularly in view of the announcement of the Italy’s new Minister of the Interior Matteo Salvini that this would be Italy’s new policy for NGO vessels rescuing migrants in the Mediterranean. Indeed, there have been reports of another similar denial of access to ports on the part of Italy, which markedly displays the growing importance of this issue. These incidents are just another link in the chain of the ongoing refugee crisis in Europe and, to no surprise, the EU called an Informal working meeting on migration and asylum issues on 24 June in preparation of the European Summit on 28 June regarding migration issues.

This post addresses the international law of the sea applicable to incidents like Aquarius, specifically questions relating to the closing of ports, the disembarkation question and the ordering or warning of vessels not to enter the territorial sea. Read the rest of this entry…

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The Aquarius incident: navigating the turbulent waters of international law

Published on June 14, 2018        Author:  and
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Between Saturday 9 June and Sunday 10 June, 629 migrants were rescued from overcrowded boats in the Central Mediterranean in search and rescue (SAR) operations carried out by NGOs and the Italian navy. They were taken on board by the Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée and flying the flag of Gibraltar. On Sunday, the Aquarius was on its way to Italy, whose Maritime Rescue Coordination Centre (MRCC) had coordinated the operations. Around 35 nautical miles off the southern coast of Italy, Italian authorities ordered the Aquarius to stop. Italy refused the Aquarius access to its ports and prohibited disembarkation of the rescued migrants on Italian territory. This, Italy’s new Minister of the Interior Matteo Salvini announced, would be Italy’s new policy for any NGO vessel rescuing migrants in the Mediterranean.

Italy’s instructions ‘manifestly go against international rules’, Malta’s Prime Minister Joseph Muscat tweeted on Sunday night, but then himself denied the ship to dock in the port of Valletta. Malta in turn, Muscat claimed, was thereby acting in full compliance with international law. For another 24 hours, the Aquarius remained on stand-by, floating between Malta and Italy. Maltese and Italian vessels supplied the Aquarius with water and food, but neither of them gave in by offering safe haven.

On Monday, Spanish Prime Minister Pedro Sánchez announced that Spain could facilitate disembarkation of all 629 rescued individuals in the port of Valencia. When it appeared that this journey would be too dangerous for passengers and crew of the Aquarius and the Valencia-plan seemed off the table again, Italy offered its ships to facilitate safe passage to Spain.

This whole episode raises a broad variety of questions, but one stands out: Are Italy and Malta violating international law by not allowing the Aquarius to find a safe haven in one of their ports? Two legal regimes are particularly relevant in this respect: the law of the sea and international human rights law. As we argue, neither provides much clarity in relation to Aquarius-like incidents. Read the rest of this entry…

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The ‘Open Arms’ case: Reconciling the notion of ‘place of safety’ with the human rights of migrants

Published on May 21, 2018        Author: 
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The work of the NGOs rescuing migrants in the Mediterranean Sea has been the subject of much controversy. One of the most recent cases regards the NGO Proactiva Open Arms: it has been accused of smuggling migrants during rescue operations at sea, and its rescue ship was impounded by the Italian authorities. This post examines the decision issued on 16 April 2018 by the pre-trial judge of Ragusa (Sicily) that ordered the release of the Open Arms vessel.

The relevance of this case is twofold. It obliquely tackles the legitimacy of the ‘pull-back’ agreement between Italy and Libya, as part of which the two states agree to collaborate with the aim of returning migrants to Libya, and which was recently challenged before the European Court of Human Rights (see this previous EJIL:Talk! post). Secondly, the decision, despite being just a pre-trial order, offers interesting insights into a contested area of international law which is gaining increase salience, i.e. the intersection between the Law of the Sea and the human rights of migrants.

This post argues that the order issued on 16 April is an important step forward in the definition of the notion of ‘place of safety’. International law merely states that people rescued at sea shall be delivered to a ‘place of safety’, but provides no definition of it (3.1.9. of the International Convention on Maritime Search and Rescue 1979, “SAR Convention”). The decision by the judge in Ragusa interprets ‘place of safety’ in accordance with the human rights of migrants, and rightly overcomes inappropriate distinctions based on migrants’ statuses. Read the rest of this entry…

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High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights

Published on May 14, 2018        Author: 
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The mere filing of a case is rarely a reason for legal commentary but in this particular case, it may well be. A few days ago, a broad-based coalition consisting of NGOs and scholars, led by the Global Legal Action Network (GLAN) filed an application against Italy before the ECtHR with potentially far-reaching implications for European migration policy and especially maritime border control. The issues at hand are so-called ‘pullback’ practices in which the Libyan coastguard – funded, trained, and equipped by the Italian authorities under an agreement signed in February 2017 – prevents migrant boats from heading to Europe’s safe shores.

The application concerns events that unfolded the morning of 6 November 2017. A migrant dinghy in distress before the Libyan coast was simultaneously intercepted by the Libyan coastguard and a rescue ship of the German NGO ‘Seawatch’. A messy and partly confrontational rescue process ensued. Of the (approx.) 120 migrants onboard the dinghy, more than 20 persons drowned before and during the operation. 47 others were ‘pulled back’ by the Libyan coastguard, allegedly experiencing human rights violations including torture and inhumane and degrading treatment upon their return in Libya. 59, more lucky individuals, were rescued by the Seawatch and brought to Italy. By merely looking at the facts, the advantages of having a broad-based coalition become clear. University of London Goldsmiths’ Forensic Architecture agency made available an impressive digital reconstruction of the events that unfolded that morning. These details could be a crucial ingredient for a successful case.

Still, the present case comes at a difficult time for migrant rights advocates in Europe. Read the rest of this entry…

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The Missing Link in Migration Governance: An Advisory Opinion by the International Court of Justice

Published on May 11, 2018        Author: 
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Even though the International Court of Justice (ICJ) has jurisdiction to resolve disputes on the interpretation and application of the 1951 Refugee Convention (Art. 38) and the 1967 Protocol (Art. IV), it has so far not adopted any relevant judgment or advisory opinion. States have not shown interest in activating the Court’s jurisdiction with regard to the Refugee Convention, but they have done so in a variety of disputes broadly linked to transboundary movement of persons or to international protection: Latin American diplomatic asylum (Asylum and Haya de la Torre cases), consular assistance (LaGrand  and Avena cases), and extradition, arrest  or surrender of persons suspected of war crimes and crimes against humanity (Arrest Warrant and Habré cases), and terrorism (Lockerbie case).

As the world currently faces the worst migration crisis since WW II in terms of destabilization potential, due to the combined effects of the wars in Libya and Syria, and poverty in the Sahel, it is time to consider the challenges and benefits of the potential involvement of the ICJ in the global efforts of migration management and international protection. There are three questions to discuss, (a) necessity, (b) feasibility and (c) contribution of a potential ICJ ruling.

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Time to Investigate European Agents for Crimes against Migrants in Libya

Published on March 29, 2018        Author: , and
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In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.

These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.

During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a dark web of collusion, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:

“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”

In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”

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Torture in Libya and Questions of EU Member State Complicity

Published on January 11, 2018        Author: 
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Amnesty International has reported that ‘tens of thousands’ of refugees and migrants are being subject to torture and other human rights abuses at the hands of Libyan state officials and non-state actors operating in, and out of, Libya (the full report can be accessed here). The publication of the report has led to allegations that the European Union (EU) is complicit in torture. One finding of the report is that ‘EU member states are and have been well aware of the widespread human rights violations and abuses suffered by refugees and migrants in Libya’ (p. 56). Amnesty International has claimed that EU states ‘are complicit’ in torture. Whether the complicity spoken of can trigger the responsibility of these states under international law is implied, but far from clear.

There are many tangents to questions of ‘European complicity’ in the torture of Libyan refugees and migrants. For example, issues regarding the obligation of non-refoulement (p. 53 of report), or the extraterritorial application of human rights obligations (pp. 54-56) (for insights on these particular matters see Gauci and Jackson respectively). The following post will briefly analyse the applicable secondary rules relating to how EU states could be held responsible for complicity in torture under general international law in light of the facts contained in the Amnesty report. Read the rest of this entry…

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International Migration: Shared Commitment to Children’s Rights and Protection

Published on January 10, 2018        Author: 
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On 17 November 2017, the Committee on the Rights of Child (CRC Committee) together with the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW Committee) published not one but two joint General Comments (JGCs) on the human rights of children in the context of international migration. This was a significant event because two treaty monitoring bodies have worked together on a topic of global importance and this was the first time both Committees adopted two General Comments on the same issue. The first JGC covers General Principles (General Comment No 3 CMW and General Comment No 22 CRC) [JGC-GP] and the second deals with States’ human rights obligations in countries of origin, transit, destination and return (General Comment No 4 CMW and General Comment No 23 CRC) [JGC-SO]. The JGCs reiterate the central tenet of children’s rights that children are rights holders and first and foremost children, regardless of their or their parents’ nationality or migration status. Although the JGCs do not focus on one type of migration, it is acknowledged that children in unsafe or irregular migration are more likely to suffer rights’ violations than children in voluntary migration situations (JGC-GP, para 8).

Background

The two Committees were compelled to draft the JGCs by the continuing phenomenon of children caught up in international migration and the extent and diversity of human rights violations they experience on their journeys. The publication of the JGCs followed months of consultation and discussion engaging experts, NGOs and stakeholders (including child rights and migration organizations). The JGCs are an important contribution to the dialogue on international migration, especially in light of the New York Declaration on Refugees and Migrants adopted by the UN’s General Assembly on 19th September 2016 and the ongoing negotiations on the Global Compact on Refugees, led by UNHCR and the Global Compact on Safe, Orderly and Regular Migration, led by the IOM. International migration, according to the Committees, places children in a situation of ‘double vulnerability’, as children and as children affected by migration (in whatever form that takes). Consequently, both Committees are committed to strengthening the protection of all children in the context of international migration (JGC-GP, para 4). Read the rest of this entry…

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Repressing Migrant Smuggling by the UN Security Council and EU Naval Military Operation Sophia: Some Reflections on Jurisdiction and Human Rights

Published on November 3, 2017        Author: 
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On 5 October 2017, the UN Security Council through S/RES/2380 (2017) renewed for the second time the enforcement powers that S/RES/2240 (2015) granted to states in order to fight migrant smuggling and human trafficking off the coast of Libya.

In a previous blog post that I wrote here in October 2015, I concluded by wondering what the effects will be of S/RES/2240 (2015) and by questioning, from several standpoints, the use of military action against migrant smugglers and human traffickers and in the overall management of the migrant crisis.

These UN Security Council resolutions provide the legal basis for the EU naval operation mandated with the task of disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean: EU NAVFOR MED Operation Sophia. Established in 2015 by Council Decision (CFSP) 2015/778, its mandate has been renewed until 31 December 2018.

Criticisms of Operation Sophia are widespread and concerns over its failure to meet its objectives and its human rights implications are no secret (see among others Meijers Committee and Not so Humanitarian after All). On the occasion of the second renewal of the S/RES/2240 (2015), it’s time to take a closer look at Operation Sophia’s results, at the legal shortcomings of the web of legal instruments regulating its actions, and the various consequences these have had. Read the rest of this entry…

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