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Home Posts tagged "Frontex"

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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Killing by Omission

Published on April 20, 2016        Author: 
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On Monday, the Forensic Architecture team at Goldsmith College, London, published Death by Rescue. The report exposes a rather complex set of facts, but the basic argument is as simple as it is alarming.

Operation Triton, facilitated by Europe’s border security agency, Frontex, began on 1 November 2014 and is mandated to enforce Italy’s maritime border. Triton replaced an earlier and much wider Italian Navy operation, Mare Nostrum, which began in October 2013 and was mandated to save migrant lives beyond Italy’s territorial waters. When EU officials decided on the more limited scope of Triton, they knew their decision would result in the drowning of numerous migrants. As one Frontex official wryly noted, “the withdrawal of naval assets from the area, if not properly planned and announced well in advance, would likely result in a higher number of fatalities.” But the European Commission turned a blind eye – leading to a spike in migrant deaths, which the authors, Charles Heller and Lorenzo Pezzani meticulously document.

From a legal perspective, this set of circumstances raises the question whether the migrants’ rights were violated, and if so, whether EU actors can be held legally accountable. In my view, the report exposes no illegal activity by European agents, either at the operational or at the policymaking level. Perhaps more troubling, the report raises the specter of unaccountable violence ingrained in the very structure of international law. If international law is somehow to blame for circumstances that made these utterly preventable deaths possible, then perhaps it is law itself that should be indicted.

Law of the Land, Law of the Sea

To explain what I mean by that, several rather theoretical remarks are required.

In common law countries, one of the first things law students learn is that law imposes no duties of rescue upon individuals qua individuals.  The classical jurisprudence on this includes comically macabre examples. A characteristic hypothetical describes a bystander witnessing a drowning baby. Law professors often use the initially astonishing absence of a duty of rescue to illustrate a basic tenet of legal positivism: the distinction between legal and moral prescription (or “the separation thesis”). Students are expected to adopt this distinction as a second nature. Rescuing the drowning stranger, they are comforted, is morally required. Of course, there are important exceptions to the general absence of a duty of recue. The basic point nevertheless stands: law does not impose a duty of rescue. Law does not always follow moral prescription. Read the rest of this entry…

 

Salami Slicing Human Rights Accountability: How the European Border and Coast Guard Agency may inherit Frontex’ genetic defect

Published on March 10, 2016        Author: 
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Salami slicing is the exercise of dividing one salami sausage into many smaller pieces in the shape of slices. Slices have some advantages over the whole piece. Figuratively speaking, actions that are illegal or difficult to achieve as a whole may become easier, legal, or harder to detect if ‘sliced’ into a series of small actions. The ‘salami slicing’ metaphor is typically used pejoratively to describe practices that take advantage of the benefits that the accumulated ‘slices’ have over the whole, such as stealing or embezzling very small quantities of money repeatedly, or publishing fractions of one research that would form one meaningful paper in several small papers. As discussed in the following piece, something similar can be observed in relation to accountability for human rights violations that may occur during border control operations conducted jointly by several EU member states under the auspices of the EU agency Frontex. Regrettably, this structural shortcoming in the set-up of joint operations coordinated by Frontex is one that the new European Border and Cost Guard Agency is likely to inherit.

The proposal for a new European Border and Coast Guard Agency (EBCGA) was published by the European Commission on 15 December 2015. The plan is to significantly enhance Frontex’ mandate and to reflect those changes in renaming it. The new agency will dispose of considerably increased human and financial resources and gain substantial powers, such as requiring a member state to take ‘corrective measures’ to address ‘upcoming challenges’ at its external border, a possibility to intervene without invitation where it identifies serious deficiencies in a member state’s external border management, additional competences to cooperate with and operate in third countries, and an enhanced role in return operations (for a concise overview see here).

The proposal is part of a package of measures aimed at protecting the area without internal borders by strengthening its external borders. It comes in the midst of the escalating migration crisis Read the rest of this entry…