Panel Discussion: “Heading to Europe: Safe Haven or Graveyard?,” Radboud University Nijmegen, 16 May

From the organizers:

The Interest Group on Migration and Refugee Law of the European Society of International Law, the Centre for Migration Law of the Radboud University Nijmegen and the Amsterdam Center for International Law of the University of Amsterdam are pleased to announce ‘Heading to Europe: Safe Haven or Graveyard?’, a panel discussion on migration by sea in the Mediterranean. The panel discussion will be held on 16 May 2014 at the Radboud University Nijmegen.

The year of 2013 has demonstrated that the tragedy of thousands of migrants and refugees drowning on the shores of Europe is now a common occurrence. The fate of those who perished near the Italian island of Lampedusa has brought the urgency of the situation into focus. The aim of the panel discussion is to provide an overview of the legal rules and processes applicable to migration by sea in the Mediterranean and to reflect on their wider sociological implications.

The panel discussion consists of two panels, each followed by a plenary discussion. In the first panel, legal experts working in the field of academia and at stakeholder organizations (e.g. UN Refugee Agency, Council of Europe, European Union) focus on legal aspects of boat migration in the Mediterranean. The second panel brings together scholars and practitioners with first-hand experience from transit countries to discuss the sociological effects of the legal rules and processes. Click here for the complete program, and here for more information on the panelists.

The organizing partners cordially invite interested scholars, governments officials, practitioners and advanced students to join in the panel discussion ‘Heading to Europe: Safe Haven or Graveyard?’. Active participation in the discussion is strongly encouraged. Participation is free of charge. For participation, please register at the bottom of this page. For inquiries, please contact Lisa-Marie Komp at lisa-marie.komp@law-school.de.

Location is the CPO-zaal, Spinozagebouw at the Radboud University in Nijmegen (Montessorilaan 3).

CLICK HERE TO REGISTER

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“Mediterranean flows into Europe: Migration and the EU’s foreign policy” – Analysis by European Parliament DG for External Policies

The EP’s Directorate-General for External Policies just released an Analysis, “Mediterranean flows into Europe: Migration and the EU’s foreign policy,” in which it reviews the EU’s external policies and instruments relating to migration in the Mediterranean, including the Mediterranean Task Force established after 3 October 2013 tragedy at Lampedusa in which over 350 people died.

The Analysis describes the serious shortcomings of the security-driven approach that has been taken by the EU. Noting, for example, that “it is unclear whether the militarisation of EU border management (resulting from a tighter relation between the CSDP and Frontex) will actually save lives or create even more danger for migrants” and that “[t]he increasing militarisation of the issue of irregular migration was underscored in December 2013, when the European Council called for the establishment of an EU Maritime Security Strategy by June 2014 as well as for increased synergies between the EU’s Common Security and Defence Policy (CSDP) and freedom/security/justice actors to tackle illegal migration.”

The Analysis discusses possible ways in which the European Parliament might play a more significant role in the shaping of future policies:

“The coming months – which will include the European elections and the June 2014 Council – present an important opportunity for the EP to engage politically with the topic of migration in the Mediterranean. As outlined above, numerous EU external policies and instruments deal with migration in the region; […]

All should incorporate respect for human rights as a central concern and pursue the overall goals of prevention, protection and solidarity. The EP has tools at hand to contribute effectively to those objectives. The EP should use its co-decision powers to ensure the inclusion of human rights provisions in all migration-related legislation, and its power of consent to guarantee that international agreements contain effective human rights guarantees. The EP’s budgetary powers also allow the institution to link assistance to third countries to proper human rights monitoring mechanisms.

Most pressingly, the EP should advocate the implementation of the actions recommended by the Mediterranean Task Force set up by the Commission. The EP should also use the opportunities generated by inter-parliamentary relations (such as the 27th ACP-EU Joint Parliamentary Assembly in March and the EU-Africa summit in April) to engage in a dialogue about migration with third countries. This dialogue should foster cooperation in the management of regular migration and in the fight against irregular migration and trafficking networks, with special emphasis on the need to prevent migrants from embarking on dangerous journeys to the EU.

The dialogue should also seek to frame Mediterranean migration within a wider perspective, possibly in the following ways:

  • Steer away from excessively militarised and security-centred approaches. The EP should ensure that strict human rights standards are respected in the fight against organised crime and smugglers’ networks, and that a clear distinction is drawn between criminal networks and their victims. The EU should prevent the criminalisation of migrants and of humanitarian organisations supporting migrants.
  • Highlight the importance of good governance, and of good migration governance more specifically. By reinforcing the EU’s Regional Development and Protection Programmes, for example, the Union can develop a comprehensive and long-term framework to develop and enhance the capacities of migration management and national asylum systems in Mediterranean countries.
  • Demand full respect for humanitarian law, refugee protection and human rights (including the rights of non-nationals) in crisis situations, and stress that humanitarian access must be guaranteed to provide life-saving supplies.
  • Recognise the importance and challenges that South-South and intra-African migration represent for countries in the southern Mediterranean, rather than focussing solely on the (much smaller) flows towards the EU.
  • Encourage further research on the migration-development nexus and explore the positive impact of human mobility on socioeconomic development.
  • Encourage EU Member States to facilitate and speed up their procedures to grant asylum and EU protected status, whilst better differentiating between refugees and irregular migrants. The EP should respect the competence of the Member States in this regard, but could also encourage Member States – in cooperation with the UNHCR – to increase their quotas for resettling refugees not adequately protected in third countries. The EP should support the Mediterranean Task Force’s proposed feasibility study on the joint processing of protection claims outside the EU, and the Commission’s proposal to move towards a common approach for humanitarian permits and visas.

All these actions would contribute to reshaping the EU’s external action related to migration, notably in the Mediterranean. They would also enhance the EU’s credibility vis-à-vis those third countries that accept significant number of migrants and refugees, and that most directly bear the consequences of their neighbours’ conflicts. (This is the case today for Lebanon and Turkey, as a result of the Syrian civil war). A modified EU approach could also project a more nuanced and positive view of migration – a change that might, in turn, influence the way migration is perceived more broadly within the EU.”

Click here or here for the Analysis.

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Interview with Frontex Director Laitinen

Several months ago the Finnish newspaper Fifi Voima published an interview with Frontex Director Ilkka Laitinen.  It is an interesting article if you read Finnish or use a translator (unfortunately Google translate does not handle Finnish well).

One interesting point from the article is Director Laitinen’s clear insistence that Frontex is not legally capable of violating human rights.  This is not a new position on the part of Frontex, but the Director is very emphatic in his position.  When asked about who could be held responsible for rights violations that might occur during Frontex coordinated joint operations, the Director indicated that Frontex is of the opinion that the operation and any potential human rights violations taking place are the responsibility of the Member States, not Frontex .

[Kenen vastuu?

Frontex koordinoi EU:n jäsenmaiden yhteisiä operaatioita maalla, merellä ja ilmassa. Käytännössä kyse on siitä, että esimerkiksi suomalaiset rajavartijat partioivat Välimerellä ja saksalaiset Kreikan ja Turkin rajalla paikallisten mukana. Kunkin operaation johdossa on yksi EU-valtio.

Frontexin kanta on, että operaatiosta ja niissä tapahtuvista mahdollisista ihmisoikeusloukkauksista ovat vastuussa jäsenmaat, ei Frontex.

Ilkka Laitinen ei esimerkiksi anna takuita siitä, etteikö hänen johtamansa viraston koordinoimissa operaatioissa ole käännytetty laittomasti siirtolaisveneitä Välimerellä. Hän perustelee tätä sillä, että vastuu toimista on jäsenmailla.]

Click here for link to article “Miehemme rajalla.”

 

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Statewatch Analysis – “New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?”

Statewatch last month released a new Analysis of the EU Regulation for Frontex-coordinated surveillance of external sea borders which is scheduled for a plenary vote in the European Parliament in April.  The Analysis, written by Prof. Steve Peers, Univ. of Essex Law School, reviews the enhanced protections to be afforded to intercepted or rescued migrants relative to the earlier Council Decision which was annulled by the CJEU.  The Analysis also highlights concerns with various provisions within the Regulation, including:

  • One significant concern with the Regulation is due to the fact that “the Regulation does not contemplate the scenario of migrants being intercepted in the territorial waters of third States.”  (Frenzen’s Note: This raises a serious concern in regard to the push-back and interception practices which have been carried out for many years within the territorial waters of Mauritania and Senegal within Frontex’s Operation Hera.  Additionally, prior to the Libyan revolution, Libya authorised Italy to conduct joint maritime patrols within Libyan territorial waters.  It is safe to assume that Frontex and some EU Member States will continue to seek the ability to intercept migrant boats within the territorial waters of third States.);
  • While the Regulation requires that migrants intercepted in the territorial sea or contiguous zone of an EU Member State be disembarked in that Member State, “this [requirement] is subject to a crucial exception: it is possible under the Regulation that a vessel that has made it this close to a Member State could still be ordered to alter course towards another destination.”;
  • While the bulk of the EU’s asylum legislation does not apply [to interceptions which occur outside of the territorial sea of a Member State,] the EU’s qualification Directive does – since there is nothing in the text of that Directive to limit its territorial scope. But the wording of the Regulation is confusing in this regard, since it does not refer to the detailed text of that Directive but rather to general standards on non-refoulement, which are different from that Directive in some respects….”;
  • Member States are required to “use all means” to identify intercepted migrants, assess their particular circumstances, and inform them of the intended place of disembarkation, in order to give the migrants the opportunity to assert a non-refoulement claim.  The Regulation states that the Frontex operational plan, “where necessary,” must provide for interpreters and legal advisors on shore. “[T]he Council Presidency points out the ‘wiggle room’ granted by the words ‘where necessary’ and ‘use all means.’”

Click here or here for Statewatch Analysis.

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UNHCR Calls on Countries to Protect Syrian Refugees and Ensure Access to Territory; Syrians are Now Largest Nationality Using Sea Routes to Reach Italy

In a statement made earlier today, UNHCR noted the “growing numbers of Syrians seeking safety in Europe” and expressed its concern “about severe difficulties these displaced people face during their passage and at borders. This includes the risk of drowning at sea and incidents where Syrians have been dangerously hindered in their journeys.”

UNHCR estimates that 6,233 Syrians have arrived in Italy by boat since August compared with about 350 in all of 2012. Earlier this week the Italian Interior Ministry reported that Syrians are now the largest nationality arriving in Italy; so far in 2013, approximately 25,000 migrants have arrived in Italy by boat, of these 9,805 were Syrian, 8,843 Eritrean, 3,140 Somali, 1,058 from Mali, and 879 Afghan.  The Interior Ministry believes the majority departed from Libyan territory. (The Italian Ministry’s statistics vary from the UNHCR’s statistics but both sets of statistics confirm the increasing numbers of Syrians.)

Excerpts from the UNHCR statement:

There are “growing numbers of Syrians trying to cross the Mediterranean from Egypt to Italy because of anxiety about their security. Many mention physical assaults, verbal threats, detention and deportation. The Egyptian government estimates that some 250,000 to 300,000 Syrians currently reside in Egypt, of whom more than 122,000 are registered with UNHCR.”

There are an “increasing number of unaccompanied children making the voyage…. As the cost of travel can range from U$2,000-US$5,000 per person, some families opt to send their children alone or with relatives or friends.”

“UNHCR notes with concern that over 800 Syrians have been arrested in Egypt since August for attempting to illegally depart and 144, including 44 children, have been deported to third countries. …Although charges have not been laid, approximately 589 Syrians remain in administrative detention, including women and 84 children. UNHCR is seeking access to the detained in order to properly verify numbers, conditions, and needs, or provide legal assistance.”

“UNHCR is calling [on the EU and other partners] for a number of measures to prevent further tragedies and increase responsibility sharing.  UNHCR calls upon states beyond Syria’s immediate region to explore concrete and meaningful ways of expressing solidarity, notably with a view to sharing the immense burden and protection responsibilities currently being assumed by the countries neighbouring Syria and its vicinity, such as Egypt. Warning signs in some hosting countries testify to the potentially destabilizing impact of the Syrian refugee influx that aggravates the already severe political, security, and economic repercussions of the Syria conflict.”

Click here for full UNHCR statement.

Click here for ANSA article.

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Details (and Document) Regarding EU Mediterranean States Opposition to Proposed Frontex Sea Borders Regulation

The document from the six states which oppose the Search and Rescue and Disembarkation provisions of the proposed Frontex Sea Borders Regulation is available via Statewatch.  (h/t to Neil Falzon and Aditus for pointing this out).  The document, a Note to the Working Party on Frontiers/Mixed Committee, criticises the proposed Regulation stating that the six states, Greece, Spain, France, Italy, Cyprus and Malta, “consider it essential to ensure that the international framework on search and rescue and disembarkation is not in any way undermined; that no confusion or diverging rules are adopted when considering the sensitive nature of these operations.”

It is difficult to see how the disembarkation provisions in the proposed Regulation “confuse” or “diverge” from the international framework.  The document implies that the six states are in agreement as to what the international framework requires in regard to disembarkation when in practice this is not the case.  It was only two months ago that Italy and Malta engaged in their most recent public disagreement on disembarkation.  Recall the several day stand-off regarding the 102 migrants rescued by the oil tanker Salamis.   The Salamis was given conflicting orders to sail to Libya, Malta, and Italy before Italy finally allowed the migrants to be disembarked.  The diverging opinions of Italy and Malta were again raised this week when Malta’s opposition leader criticised the Malta government for deciding to bring 150 migrants rescued from the sea two weeks ago after their boat capsized.  The opposition’s point was that rescued migrants should have been taken to the port closest to the point of rescue, i.e. Lampedusa not Malta.  While the disembarkation provisions in the proposed Regulation are not perfect, it is disingenuous to argue that they diverge from the international framework and that further clarification is not necessary.

The document calls for disembarkations in Frontex operations to be conducted “in accordance with international law and relevant bilateral agreements which comply with international law.”  The proposed language regarding bilateral agreements seems designed to address (and protect) on-going Spanish and Frontex interdiction activities in West Africa which now occur largely within the territorial waters of West African states with intercepted or rescued migrants being disembarked in West Africa.

The six states propose new and simplified language for the Search and Rescue and Disembarkation provisions in Arts. 9 and 10 of the proposed Regulation:

“Article 9:

During a sea operation, Member States shall instruct their participating units shall to comply with the obligation to render assistance to any ship or person in distress at sea, in accordance with applicable provisions of international Conventions governing search and rescue and fundamental rights. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.

Article 10:

For the purposes of sea operations coordinated by the Agency, Tthe modalities for the disembarkation of the persons intercepted or rescued in a sea operation shall be set out in the operational plan, and shall be in accordance with international law and relevant bilateral agreements which comply with international law.”

Click here for the Note to the Working Party on Frontiers/Mixed Committee

Click here for the proposed Frontex Sea Borders Regulation.

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EU Mediterranean States Oppose Provisions of Proposed Frontex Sea Borders Regulation Relating to Rescue and Disembarkation

[16 Oct. UPDATE: The document from the six states opposing the proposed Regulation is available here.]

One week ago Commissioner Cecilia Malmström called for an “extensive Frontex search and rescue operation that would cover the Mediterranean from Cyprus to Spain.” Yesterday the ANSA news service reported that all six EU Mediterranean states (Cyprus, Greece, Italy, Malta, France and Spain) have voiced opposition to the proposed Frontex Sea Borders Regulation (COM(2013) 197 final) and specifically to Articles 9 and 10 relating to “Search and Rescue Situations” and “Disembarkation.” ANSA reported that the six member states “expressed disapproval of the draft and called it ‘unacceptable for practical and legal reasons’.”  The six countries have reportedly taken the position that there is no need for further regulations pertaining to rescue at sea or post-rescue places of disembarkation since other international laws already “deal ‘amply’ with the matters.”

As you may recall, the earlier version of the Frontex Sea Borders Rule in the form of a Decision was adopted by the European Council in 2010 (Decision 2010/252/EU).  The Decision was subsequently annulled by the Court of Justice of the European Union on the ground that it introduced new essential elements into the Schengen Borders Code by way of the provisions on interception, rescue and disembarkation and that such substantive changes required the consideration and approval of the European Parliament. (European Parliament v Council of the European Union, Case C-355/10, 5 Sept. 2012). The proposed replacement for the annulled Decision is in the form of a Regulation but is fairly similar in content.

While the ANSA report does not identify the specific reasons why the six states are opposing the proposal, one can speculate that the objections to Art. 9, Search and Rescue Situations, may be based on a perception that it would expand the obligation to rescue under certain circumstances.  For example the Article requires that even in the absence of a distress call, a rescue operation might still be required if other factors are present, including:

  • the seaworthiness of the ship and the likelihood that the ship will not reach its final destination;
  • the number of passengers in relation to the type and condition of the ship;
  • the availability of necessary supplies such as fuel, water, food to reach a shore;
  • the presence of passengers in urgent need of medical assistance;
  • the presence of deceased passengers;
  • the presence of pregnant women or children.

The objections by the six states to Art. 10 regarding places of disembarkation are most likely due to the states’ conflicting positions regarding where disembarkation should occur.  While Art. 10 creates a procedure for decisions regarding places of disembarkation to be made by participating member states in advance of joint operations, its provisions identify circumstances under which disembarkation in member state may occur when that state is not participating in the joint operation.  Malta and Italy in particular have long disagreed on where disembarkations are to occur.  This long standing disagreement obviously contradicts the claims made by the six opposing states that existing international laws already deal “amply” with the disembarkation issue.

Click here for ANSA article.

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