The storm-tossed question of disembarking rescued refugees and migrants
The pressure of mass migration in the Mediterranean on EU sea-border states calls for other member states to contribute to humanitarian efforts at sea that respect the human rights of refugees and migrants. Article 98 of the United Nations Convention on the Law of the Sea (LOSC) codifies the maritime duty to rescue persons in distress and creates the complementary duty on coastal states to cooperate in operating search and rescue (SAR) services. Under the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention) the relevant coastal state must ensure timely disembarkation of survivors at a ‘place of safety’ (see e.g. 1979 SAR Convention Annex ch. 3, 3.1.9). However, poor reception and detention conditions at Greek hotspots in the Aegean Sea raise the question of whether disembarkation at these EU assigned facilities will be in contravention of obligations under the European Convention on Human Rights (ECHR), in particular the Article 3 prohibition on inhuman and degrading treatment.
Following an overview of the current conditions at the Greek hotspots, this study considers a number of decisions of the European Court of Human Rights (ECtHR) exploring extraterritorial liability for disembarkation and the relevance of the contexts of maritime rescue and mass migration to the overall assessment of Article 3. Despite problems such as severe overcrowding, Convention states may be able to disembark at Greek hotspots without triggering Article 3 liability.
The situation at the Greek hotspots
So far in 2019, there have been about 39,775 refugee and migrant sea arrivals at the Greek islands (UNHCR, Greece, Operational Portal, ‘Sea arrivals in 2019’, 13 October 2019), placing considerable pressure on the Greek reception system. Approximately one-third of sea arrivals are children, about 16% of whom are unaccompanied (UNHCR Greece, Sea Arrivals Dashboard: September 2019).
Because of the procedure at the Greek hotspots, most asylum seekers and other migrants experience long stays of at least 5 months. In addition to the high number of sea arrivals, this leads to severe overcrowding (FRA, Migration: Key Fundamental Rights Concerns, 1.4.2019-0.6.2019, 4; FRA Hotspots Update, February 2019, 23-30). The occupancy levels well exceed the total capacity of 6,438 (FRA Hotspots Update). In August 2019, the population at the islands’ reception centres was 20,500 (UNHCR Greece Fact Sheet: August 2019). A geographical restriction on freedom of movement, to the islands, also contributes to tensions (FRA Hotspots Update).
Other related problems include makeshift accommodation, inadequate access to medical care, water shortage, poor hygiene and sanitation and a lack of privacy, safety and security (FRA Key Fundamental Rights Concerns, 22). A lack of caseworkers and female interpreters causes delays in asylum procedures and in identifying and addressing the needs of particularly vulnerable people, including women, unaccompanied children and LGBTI (FRA Key Fundamental Rights Concerns, 19; FRA, Periodic data collection on the migration situation in the EU: November Highlights: 1 September – 31 October 2018, 11-12).
Disembarkation and the principle of non-refoulement
Following the ECtHR’s decision in Hirsi Jamaa v Italy (App no. 27765/09, 23 February 2012), state authorities exercising de jure and de facto authority and control over survivors clearly have extraterritorial obligations under Article 3 ECHR in rescue operations on the high seas or in the territorial seas of other states. Therefore, in accordance with the principle of non-refoulement, a Convention state will be prohibited from transferring refugees and migrants rescued at sea to a Greek hotspot, if the state authorities know or ought to know at the time of disembarkation of the existence of conditions that place the individuals concerned at a real risk of Article 3 violations.
Disembarkation in the context of maritime search and rescue
The decision of Khlaifia and Others v Italy (App no 16483/12, 15 December 2016) raises the possibility that a strict application of Article 3 ECHR may be adjusted to accommodate the compelling circumstances of maritime rescue. The case involved the disembarkation of three migrants not claiming asylum by Italian authorities on the island of Lampedusa. As a starting point, the court ‘… could not criticize, in itself, the decision to concentrate the initial reception of the migrants on Lampedusa.’ The court referred to the geographic location of the island, making it a target for migrant arrivals and thus a critical location for SAR operations aimed at protecting the life and health of migrants. Therefore, the court found it was ‘not unreasonable’ to initially ‘… transfer the survivors from the Mediterranean to the closest reception facility …’ (para 181). While not absolving states from their obligations, the court also considered the lawfulness of the disembarkation in the context of the pressures placed on the Italian authorities in responding to the arrival en masse of extraordinary numbers of irregular migrants and the need to contain the general situation (paras 182-184).
A Council of Europe Parliamentary Assembly (PACE) mission on Lampedusa less than four months earlier reported concerns about poor hygiene because of overcrowding. In addition, there was a lack of procedural safeguards in relation to detention and asylum. PACE concluded the facility was ‘… ill-suited to stays of several days …’ (para 190). However, despite conditions at Lampedusa’s early reception center being overcrowded and rudimentary, the ECtHR did not find they were of sufficient severity to be regarded as inhuman or degrading (paras 187-191). The court took into account that the migrants had not been deliberately ill-treated, had a degree of freedom of movement within the facility, had received food, water and medical care and the stay lasted only 3 to 4 days (paras 190-193, 198). The court referred to a number of cases where very short periods of detention were in violation of Article 3, for example, due to delays in necessary medical treatment, lack of appropriate bedding, lack of heating, extremely limited personal space, poor hygiene, lack of privacy and lack of opportunity to exercise (para 196).
Subsequent decisions about the conditions at the Vial Reception and Identification Centre (RIC) on the Greek island of Chios around April 2016 build upon the Khlaifia decision. In the first three months of 2016, there had been more than 150,000 sea arrivals at the Greek islands (UNHCR, Operational Portal). In J.R. et autres c. Grèce (App no 22696/16, 25 January 2018) and O.S.A. et autres c. Grèce (App no 39065/16, 21 March 2019) the ECtHR reiterated the relevance of the difficulties experienced by Greece in relation to the massive influx of migrants to find that the conditions at the centre had not reached the level of severity of inhuman or degrading treatment at the relevant time (J.R. para 143; O.S.A para 77). The court emphasised the brevity of the detention, being 30 days, after which the facility became ‘semi-open’, allowing freedom of movement on the island during the day (J.R. paras 145-147; and O.S.A para 79). Both decisions referred to the European Committee for the Prevention of Torture (CPT) report of visits in 2016, in which the CPT was ‘not particularly critical’ of the Vial conditions, despite reported problems with access to medical care, lack of information and legal assistance, as well as poor quality drinking water and food (J.R. paras 144; and O.S.A. para 78 respectively). The recent judgment of Kaak and Others v Greece (App no 343215/16, 3 October 2019) also concerned the conditions of detention at the RIC in 2016, the court finding that the authorities had done everything that could be reasonably expected of them to care for and protect unaccompanied minors (paras 67-74).
Substandard conditions for refugees and migrants at the initial disembarkation will not always be regarded as inflicted in contravention of Article 3 ECHR in light of the necessity of saving lives at sea and the difficulties experienced by EU coastal states, such as Greece, in addressing a large number of migrant arrivals. The Khlaifia, J.R., O.S.A. and Kaak decisions highlight four key factors determining lawfulness of the first place of disembarkation: the proximity of a designated reception facility to the maritime rescue scene, the context of mass migration, the severity of the conditions and the length of the stay. The ECtHR appears to restrict its Article 3 assessment to detention within facilities and to accept that containment on the islands in semi-open facilities is not a form of detention. Rescuing states need to be aware of updated information on the occupancy levels and conditions at the various hotspots. The ECtHR’s case law suggests that extreme conditions at reception facilities, including risks of delayed medical treatment or a lack of appropriate shelter and hygiene, will severely restrict the length of time lawfully spent at the place of initial disembarkation. The current situation at the Greek hotspots highlights the need for solidarity and burden sharing on land to ensure that EU disembarkation by rescuing vessels is consistent with Convention rights.