Category Archives: Analysis

EUNAVFOR MED-Six Month Report: No Indication of Refugee Protection Plan for EU Operations within Libyan Territorial Waters and No Reports of Human Trafficking

There is a lot of information in the EUNAVFOR MED Operation SOPHIA Six Month Report   (also here: EEAS-2016-126) that was released last week by WikiLeaks, but there are two subjects not discussed which jumped out at me.

No Discussion of Refugee Protection Plan

First, the Report does not contain information regarding what the EU military force intends to do with migrants who are intercepted or rescued by EU vessels if and when EUNAVFOR MED patrols begin to operate within Libyan territorial waters.

The Report’s ‘Next Steps and Key Challenges’ section [pp 19-21] discusses different EU contingency plans for Phase 2B of the operation and specifically discusses how suspected smugglers arrested by EU forces within Libyan territorial waters would be handled. The Report says suspected smugglers should not be turned over by EU forces to Libyan officials for criminal prosecution unless it can be ensured ‘that they [will be] treated in accordance with human rights standards that are acceptable to the EU and Member States.’ According to the Report, forty-six suspected smugglers have been arrested by EUNAVFOR MED in international waters (between 22 June and 31 December 2015) and all of these individuals have been turned over to Italian authorities for prosecution by Italy’s DNAA – Direzione Nazionale Antimafia ed Antiterrorismo. Italy is so far the only EU Member State prosecuting suspected smugglers.

But unlike the discussion regarding the treatment of suspected smugglers, there is no discussion in the Report about where migrants who are intercepted or rescued in Libyan territorial waters will be taken or how they will be processed. It is certainly possible that intercepted migrants would continue to be taken from Libyan territorial waters to Italy, as is currently the case with operations on the high seas, but I suspect this may not be the plan once EUNAVFOR MED operations are expanded to Libyan territorial waters.

The fact that there is no discussion in the Report of where intercepted migrants will be taken does not mean that EUNAVFOR MED does not have appropriate plans in place, but the omission is troubling because the Report makes clear that once Phase 2B (territorial waters) operations begin, EUNAVFOR MED forces will be interacting and cooperating with the Libyan Navy and Coastguard. (The Report also notes that if requested and if its mandate is amended, EUNAVFOR MED is ready to begin quickly providing capability and capacity building to the Libyan Navy and Coastguard.)

EUNAVFOR MED’s interaction with Libyan forces in territorial waters would, according to the Report, initially include Libyan ‘cooperation in tackling the irregular migration issue’, with the expectation that at a later point in time ‘Libyan authorities could take the lead in patrolling and securing their Territorial Waters, with support being provided by EUNAVFOR Med.’ The Report therefore describes a changing scenario where EU forces would first act alone in Libyan territorial waters, which would lead to some level of cooperation with Libyan authorities (joint patrols? shipriders?), which would finally lead to Libyan authorities taking the lead on enforcement activities, with the EU playing a supporting role of some sort.

The legality of the Phase 2B operations will depend on the details of how intercepted or rescued migrants are processed and where they are taken. EU Member States operating within EUNAVFOR MED would necessarily be exercising effective control over migrants when operating unilaterally or jointly with Libyan forces within Libyan territorial waters and EU Member States would therefore be bound by the non-refoulement obligations in the ECHR, the Refugee Convention, the CAT, and the ICCPR. Any such operations would be subject to the 2012 Hirsi Jamaa v Italy judgment of the ECtHR which rejected Italy’s past push-back practices and close cooperation with the pre-Arab Spring Libya, finding the push-back practices to violate the ECHR’s prohibition on non-refoulement and to constitute collective expulsion.

EUNAVFOR MED’s Phase 2B operation seeks to replicate what Frontex and Spain have done off the coasts of Mauritania, Senegal and Morocco since 2006 pursuant to Joint Operation HERA where Spain and Frontex initially deployed naval patrols in international waters, then negotiated bilateral agreements to move patrols to territorial waters, deployed joint patrols and shipriders within territorial waters, and then continued to provide various forms of support to Mauritania and other West African states to patrol their own territorial waters. Operation HERA succeeded in stopping most boat migration from West Africa, but did so in a manner which did not provide any process to screen intercepted migrants for claims for international protection and subjected intercepted migrants to refoulement.

In order to ensure that non-refoulement obligations are respected and that rights of migrants are otherwise protected, as the EU and EUNAVFOR MED move towards implementation of Phase 2B operations within Libyan territorial waters, more information and transparency is needed to determine and monitor the legality of all aspects of the operations.

No Reports of Human Trafficking

The second perhaps less significant piece of information that jumped out at me as I read the Report was the lack of any suggestion that EUNAVFOR MED patrols have discovered evidence of human trafficking. The Report makes multiple references to trafficking, but always in conjunction with human smuggling, eg, ‘smuggler and traffickers’ business model’, ‘smuggler and trafficker vessels’. The use of the trafficking term seems to be a continuation of the use of imprecise terminology (and possible ongoing confusion over the differences between human trafficking and smuggling as well?). But the Report’s ‘Smugglers’ Business Model’ section [pp 6-8] is clearly only discussing acts of smuggling.

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Steve Peers: The Refugee Crisis: What should the EU do next?

A great legal analysis and overview of the situation by Prof. Steve Peers (Professor of EU Law & Human Rights Law, University of Essex) from EU Law Analysis blog:

“…. How should the EU address [the refugee crisis] next? Should it abolish or reform the Schengen and/or Dublin rules? Are Member States complying with EU and international law in their response? To answer these questions, I will examine in turn (a) the international law framework; (b) the EU law framework; (c) whether Schengen is at ‘fault’; (d) whether Dublin is at ‘fault’; and (e) what the EU should do next.  My main purposes are to explain the legal background, to point out some legal errors, and to suggest the best way forward in light of the international refugee law framework…..”

Click here for article.

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UNHCR Launches Web Data Portal on Mediterranean Refugee/Migrant Situation

UNHCR has launched a comprehensive data portal on the Mediterranean refugee and migrant situation and the various responses.  The portal contains data, statistical information, maps, reports, situation updates, and other information.

 

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NY Times: The Outlaw Ocean Series – Murder at Sea, Captured on Video, But Killers Go Free

Murder at Sea, Captured on Video, But Killers Go Free” is the second article in a four article NY Times series, The Outlaw Ocean, by Ian Urbina ( 点击查看本文中文版 ):

“The man bobbing in the sea [likely the Indian Ocean in 2012 or 2013] raises his arms in a seeming sign of surrender before he is shot in the head. … A slow-motion slaughter unfolds over the next 6 minutes and 58 seconds. … Despite dozens of witnesses on at least four ships, those killings remain a mystery. No one even reported the incident — … Law enforcement officials learned of the deaths only after a video of the killings was found on a cellphone left in a taxi in Fiji last year, then posted on the Internet. With no bodies, no identified victims and no exact location of where the shootings occurred, it is unclear which, if any, government will take responsibility for leading an investigation. Taiwanese fishing authorities, who based on the video connected a fishing boat from Taiwan to the scene but learned little from the captain, say they believe the dead men were part of a failed pirate attack. But maritime security experts, warning that piracy has become a convenient cover for sometimes fatal score-settling, said it is just as likely that the men were local fishermen in disputed waters, mutinied crew, castoff stowaways or thieves caught stealing fish or bait. ‘Summary execution, vigilantism, overzealous defense, call it what you will,’ said Klaus Luhta, a lawyer with the International Organization of Masters, Mates & Pilots, a seafarers’ union. ‘This boils down just the same to a case of murder at sea and a question of why it’s allowed to happen.’…”

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NY Times: The Outlaw Ocean Series – Stowaways and Crimes Aboard a Scofflaw Ship

The first instalment of a four part NY Times series, The Outlaw Ocean, by Ian Urbina was published yesterday. The first instalment, Stowaways and Crimes Aboard a Scofflaw Ship, follows the activities of one particular ship, including an incident where two stowaways were forced overboard and left adrift on a makeshift raft while the ship was at sea off West Africa. From the NYT: “The Outlaw Ocean series was a deep collaboration, with many parts of the newsroom working with Ian Urbina on a quest to reveal lawlessness on the high seas. The hope for the project was to take readers inside that lawlessness, using video, photography, mapping and design tied closely together.”

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European Migrant Death Database – Deaths at the Borders of Southern Europe

VU University Amsterdam has released a border death database documenting migrant deaths along the Southern European borders.

Here is a web post from DIIS (Danish Institute for International Studies) describing the project: “On 12 May 2015, researchers of VU University Amsterdam 2015-05-12_Border Deaths Org mapreleased a border death database, based on official death records of migrants who died at the Southern European borders in the years 1990-2013. They suggest that European states continue to collect such data supervised by a new European Migrant Death Observatory which is should be part of the Council of Europe.

The database contains individualized information on 3.188 people who died while attempting to reach southern EU countries from the Balkans, the Middle East, and North & West Africa, and whose bodies were found in or brought to Europe. It is unique because it includes – where known – date and place of death, cause of death, gender, age, country of origin, and whether or not the person was identified. Over the past year, 13 researchers visited 563 local civil registries in Spain, Italy, Greece, Malta and Gibraltar and collected information from death certificates. “This database underlines decades of indifference of European states. They had this information all the time, but failed to collect it”, says Professor Thomas Spijkerboer.

The database can be accessed through www.borderdeaths.org

It includes:
o Full database
o Visualization
o Documentary Counting. The Human Costs of Border Control (Pieter Boeles, 2014) about the research project
o Papers on (1) how was the data collected; (2) preliminary findings; (3) identification; (4) policy relevance”

See also: The short documentary Counting the Human Cost of Border Control, in which Thomas Spijkerboer and Tamara Last (Migration Law, VU University Amsterdam) search for traces of those who have died in the civil registries along the Mediterranean coast.

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Statewatch Analysis: The EU’s Planned War on Smugglers

Statewatch has issued an Analysis, “The EU’s Planned War on Smugglers,” written by Steve Peers, Professor of EU Law, University of Essex:

“The EU’s Foreign Affairs Council is meeting today to discuss the possibility of a military operation in the Mediterranean to take actions against smuggling of migrants. Officially, at least, the purpose of the operation (as defined by EU leaders last month) is to destroy smugglers’ boats. The EU’s High Representative has stated that there will be ‘no boots on the ground’; and as she arrived at the Council meeting today, she referred to authorising an ‘EU operation at sea’. However, it is clear from the documents discussed in the EU’s Political and Security Committee last week that (unless plans have changed radically in the meantime) the High Representative is being “economical with the truth”. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life not only of smugglers but also of Member States’ forces and refugees. In effect, the EU is planning to declare war on migrant smugglers – without thinking through the consequences. [***]”

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Amnesty International Report: ‘Libya is Full of Cruelty’ – Stories of Abduction, Sexual Violence and Abuse from Migrants and Refugees

Amnesty International has released a new report entitled: “’Libya is Full of Cruelty’ – Stories of Abduction, Sexual Violence and Abuse from Migrants and Refugees.” (also available here.)  2015-05-11_Amnesty Intl_Report_Libya_Libya_is_full_of_cruelty COVER

Key points include (see formal AI recommendations below):

  • “Widespread abuses by armed groups, smugglers, traffickers and organized criminal groups in Libya as well as systematic exploitation, lawlessness and armed conflicts are pushing hundreds of thousands of migrants, asylum-seekers and refugees to risk their lives by attempting to cross the Mediterranean Sea”;
  • “In many cases, migrants and refugees attempting to cross the Mediterranean Sea have been subjected to prolonged beatings in [detention] facilities following their interception and arrest by the Libyan coastguard or militias acting on their own initiative in the absence of strong state institutions”;
  • “While Amnesty International welcomes the EU’s commitment to increase resources for search and rescue operations, it is also concerned that some of the proposed measures, in particular plans to ‘systematically identify, capture and destroy vessels before they are used by traffickers’ would effectively contribute to migrants and refugees being trapped in Libya and expose them to a risk of serious human rights abuses”;
  • “As more people are drowning in the Mediterranean Sea, the priority for the international community must be to dramatically expand search and rescue operations and take effective steps to urgently address human rights abuses and serious violations of international humanitarian law in Libya. EU governments must also increase the number of resettlement places, humanitarian admissions and visas for people in need of international protection”.

Amnesty International makes the following recommendations:

To European governments

  • Urgently ensure the deployment of naval and aerial resources at a scale commensurate with foreseeable departure trends and which should patrol the high seas along the main migration routes. Whether such deployment occurs within the framework of Frontex Joint Operation Triton or through other agreements, it is crucial that ships and aircraft are delivered promptly and deployed in the area where most of calls for assistance come from and a great number of shipwrecks occurs;
  • To reduce the numbers of those risking their lives at sea, increase the number of resettlement places, humanitarian admissions and visas for people in need of international protection and ensure that refugees have effective access to asylum at land borders;
  • Ensure that any action against smugglers and traffickers is addressed through law enforcement measures, governed by human rights law and standards, and that it does not contribute to migrants and refugees being trapped in Libya without any means of escaping the violence;
  • Ensure that human rights abuses and violations of international humanitarian law, including against migrants, asylum-seekers and refugees in Libya, are addressed as part of the political dialogue aimed at ending the ongoing conflicts, and that a mechanism is put in place to monitor the human rights situation on the ground following any subsequent settlement. EU governments must also insist that Libyan authorities, armed groups and militias end the systematic indefinite detention of migrants and refugees based on their immigration status; all refugees and asylum-seekers and migrants detained for immigration purposes must be released.;
  • Investigate and bring to justice in fair trials those involved in trafficking of persons.

To the governments of Tunisia, Egypt and Algeria:

  • Keep the borders open to all individuals in need of international protection regardless of whether they have valid travel documents or meet visa requirements.

To governments along the smuggling route:

  • Ensure that any regional co-operation aimed at addressing irregular migration and dismantle smuggling networks fully complies with international law and standards, and does not infringe upon the rights and safety of asylum-seekers and refugees, with particular regard to the right to freedom of movement, the right to asylum, and the absolute prohibition on refoulement.

To militias, armed groups and Libyan authorities:

  • Release anyone detained solely on the basis of their immigration status, nationality, race, religion or ethnicity;
  • Make clear to all those under your command that torture or other ill-treatment, rape and sexual assault will not be tolerated under any circumstances. Remove from the ranks anyone suspected of such abuses;
  • Facilitate visits by independent organizations to immigration detention centres and other places of detention;
  • Ensure that all those deprived of their liberty can communicate regularly with their families and have access to adequate medical care.”

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New York Times Editorial: UN Security Council Should Reject Military Intervention in Libya

The NY Times in an editorial on Sunday called upon the UN Security Council to reject the EU request for a resolution authorising military intervention against smugglers in Libya:

“Military intervention would be a grave mistake. … It is, in fact, a cynical strategy, born of Europe’s panic over a tide of foreign migrants. … Destroying all the boats would condemn migrants to exile. A far better (and obvious) way to put the smugglers out of business is to make migration from Libya to Europe safe and legal. … The Security Council should tell [Federica Mogherini] that no military intervention is needed — just compassion and common sense.”

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Migration Policy Centre – Policy Brief: “Drowned Europe”

Drowned Europe“, policy brief by Philippe FARGUES and Anna DI BARTOLOMEO, Migration Policy Centre at the European University Institute, Florence.

ABSTRACT:
The drowning of 800 migrants, 19 April 2015, after the capsizing of a smuggling boat, triggered responses from across Europe. But when EU leaders met four days later, the news-cycle had moved on and the European Council, 23 April, gave a disappointing response. The 28 agreed to scale up their joint search-and-rescue efforts at sea to the more substantial efforts of what Italy has achieved alone in the last year. There were, also, a handful of other minor actions. Mr Junker, President of the Commission, lamented that the EU should be more ambitious. He was right, in as much as the EU meeting will not sustainably curb the deadly trends we have seen in the Mediterranean in recent years.

2015-April_MPI Policy Brief_Drowned Europe_Fig 12015-April_MPI Policy Brief_Drowned Europe_Fig 22015-April_MPI Policy Brief_Drowned Europe_Tab 1

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The EU’s Proposed Plan to Destroy Migrant Boats in Libya Must be Rejected by the European Council

A plan for EU Member States to capture or destroy the boats used by people smugglers in the Mediterranean is one of ten possible courses of action that will be considered during the Extraordinary European Council Meeting on the Situation in the Mediterranean that will be held on 23 April.

The boat destruction proposal should be rejected for multiple reasons. There is no basis in law for the proposal and it would endanger lives of innocent people including migrants and fishermen, among others. It would certainly have little effect on its intended target, the people smugglers.

EU migration commissioner Avramopoulos described the plan, which has been recommended by the Foreign Affairs Council which met on 20 April, as a civil-military operation which would “capture and destroy vessels used by smugglers.” Avramopoulos reportedly compared the proposed EU boat destruction plan to Operation ATALANTA, the EU’s maritime operation against piracy off Somalia, saying that Atalanta “should inspire us for new operations against smugglers in the Mediterranean.”

As is always the case, the specific details of the proposed plan matter. There are situations where the destruction of a migrant boat under certain circumstances may be perfectly legal and otherwise appropriate. For example after a rescue operation when migrants have been safely removed from an unflagged and unseaworthy vessel, it may be appropriate for that vessel to be destroyed at sea rather than taking it in tow or leaving it adrift and thereby creating a navigational hazard. In such circumstances, there is no reason for an EU coast guard vessel, after migrants have been transferred from a migrant boat, to stand by and allow smugglers to take possession of the now empty migrant boat.

But if the EU boat destruction plan were to authorise the use of armed force to capture or destroy a smuggling boat at sea, particularly in the face of armed resistance from people smugglers, or if it were to authorise the destruction of boats at anchor in Libyan harbours, it is difficult to imagine how such a plan could be carried without endangering the lives of migrants and fisherman and thereby violating international humanitarian and human rights law.

Frontex and Italian patrol boats have already experienced armed threats at sea during rescue operations. One situation occurred on 13 April when armed people smugglers fired into the air to recover an empty migrant boat after an Italian tugboat and the Icelandic Coast Guard vessel Týr deployed by Frontex had rescued a group of migrants.  The Frontex vessel did not engage the people smugglers with force and allowed the smugglers to return to Libya with the empty migrant boat. If Frontex vessels or coast guard vessels were now to be called upon to use some level of appropriate force to prevent such incidents, rescue operations would be delayed, further complicated, and the rescued migrants would be placed in danger.

In regard to the possible destruction of boats at anchor in a Libyan harbour, the EU cannot engage in the proposed civil-military operation without having a legal basis to do so. One possible source of authority would be the invocation of Chapter VII of the UN Charter by the UN Security Council, but this would require the finding that the flow of migrant boats constitutes a threat to international peace and security. While the security situation in Libya or Syria might well constitute such a threat, the large scale movement of migrants by people smugglers does not.

Chapter VII has of course been invoked to authorise the EU Operation ATALANTA after the Security Council authorised of the use of force off Somalia in international waters and in Somalian territorial waters (as well as within Somalian territory). But the legal basis for Operation ATALANTA has no relevance to the proposed EU boat destruction plan. The suppression of piracy in international waters is authorised and governed by specialized international law and customary international practice relating to the suppression of piracy. There is no equivalent basis in international law for the suppression of people smuggling.

Chapter VII was likewise invoked in 2011 to authorise the use of force by NATO in Libya. The Security Council again made the necessary determination that the situation in Libya at the time was a threat to international peace. Among the factors referenced by the Security Council in Resolution 1973 was the plight of refugees and foreign workers who were subject to violence and who were forced to flee Libya. The resolution praised Tunisia and Egypt for protecting the fleeing refugees and called on the international community to support the efforts. It would be repugnant if today the ongoing violence in Libya was somehow used as a legal basis for a use of force which would serve to trap and endanger migrants, rather than making them safer.

In addition to the serious legal questions relating to the use of force to capture and destroy smugglers’ boats, there are serious practical concerns. Take the example of the unprecedented boat disaster and the 900 deaths that occurred earlier this week. One of the likely reasons for the massive death toll was the large number of persons who were locked below the main deck of the boat. What precautions would prevent the destruction of a suspected smuggling vessel at anchor with hundreds of people below deck and out of sight? Would the EU boat destruction plan require that any capture or destruction of a suspected smuggling boat be carried out by deploying EU military personnel on the ground in Libya with the resulting ability to more closely inspect a vessel before its destruction? Or would the plan permit destruction of a suspected smuggling boat by armed drones or military aircraft? If the destruction could occur through the use of aircraft, people will be killed, and it is more likely that those who will be killed will be migrants or innocent fisherman and not the people smugglers.

The easiest targets for destruction will be the larger fishing vessels that are being used by the people smugglers. But not so long ago the smuggling boats of choice were the Zodiacs and other large or medium–sized inflatable boats powered by outboard engines. This type of boat can be easily stored in vehicles or storage buildings and quickly moved into the water when needed. It would be an easy tactical shift on the part of the people smugglers to resume the use of inflatables if the larger fishing vessels were no longer obtainable.

The European Council needs to take new and significant steps to respond to this crisis. A focus on people smugglers should certainly be something that is addressed, but while the people smugglers are taking advantage of the crisis, they are not the cause. The EU response needs to instead focus on expanded search and rescue (i.e. Mare Nostrum plus – not Operation Triton plus) and creating alternative safe paths for people to seek protection in the EU or in other appropriate countries. The boat destruction plan should be rejected.

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OHCHR Releases Recommended Principles and Guidelines on Human Rights at International Borders

The Office of the High Commissioner for Human Rights yesterday issued Recommended Principles and Guidelines on Human Rights at International Borders. OHCHR, along with multiple stakeholders, has been working on the principles and guidelines since 2012.

Excerpts:
I. Introduction
A. Human rights at international borders
1. International borders are not zones of exclusion or exception for human rights obligations. States are entitled to exercise jurisdiction at their international borders, but they must do so in light of their human rights obligations. This means that the human rights of all persons at international borders must be respected in the pursuit of border control, law enforcement and other State objectives, regardless of which authorities perform border governance measures and where such measures take place.
2. Migration discourse is replete with terminology used to categorize people who migrate, such as “unaccompanied or separated children”, “migrants in irregular situations”, “smuggled migrants” or “victims of trafficking in persons”. In the complex reality of contemporary mobility it can be difficult to neatly separate people into distinct categories as people may simultaneously fit into several categories, or change from one category to another in the course of their journey. Every individual who approaches an international border has different motivations and it is important to remember that under international human rights law, States have obligations towards all persons at international borders, regardless of those motives.
3. States have legitimate interests in implementing border controls, including in order to enhance security, to protect human rights, and to respond to transnational organized crime. The Office of the High Commissioner for Human Rights (OHCHR) has therefore put together these Recommended Principles and Guidelines (“The Guidelines”) with a view to translating the international human rights framework into practical border governance measures. The Guidelines assert a human rights-based approach deriving from the core international human rights instruments and anchored in the interdependence and inalienability of all human rights, seek to establish accountability between duty-bearers and rights-holders, emphasis participation and empowerment, and focus on vulnerability, marginalization and exclusion.
4. Further, underpinning these Guidelines is a recognition that respecting the human rights of all migrants regardless of their nationality, migration status or other circumstances, facilitates effective border governance. Policies aimed not at governing migration but rather at curtailing it at any cost, serve only to exacerbate risks posed to migrants, to create zones of lawlessness and impunity at borders, and, ultimately, to be ineffective. Conversely, approaches to migration governance that adhere to internationally recognized human rights standards, serve to bolster the capacity of States to protect borders at the same time as they uphold State obligations to protect and promote the rights of all migrants. Ultimately then, these Guidelines are recommended to States and other stakeholders not only because they are obliged to put human rights at the forefront of border governance measures, but also because they have an interest in doing so.
[***]
9. These Guidelines shall not be interpreted as restricting, modifying or impairing the provisions of applicable international human rights law, international humanitarian law, international refugee law or other relevant legal instrument or rights granted to persons under domestic law. 1
Footnote 1 – In order to avoid duplication of authoritative guidance, the present Guidelines should be read in conjunction with the guidance provided by the Office of the United Nations High Commissioner for Refugees (UNHCR), including in the context of its 10-Point Plan of Action on Refugee Protection and Mixed Migration which emphasises the need for “protection sensitive entry systems” at international borders to identify, protect against non-refoulement and ensure access to asylum procedures for persons in need of international protection. For trafficked persons, the present Principles and Guidelines should be read in conjunction inter alia with OHCHR’s Recommended Principles and Guidelines on Human Rights and Human Trafficking.
[***]
II. Recommended principles on human rights at international borders
A. The primacy of human rights
1. States shall implement their international legal obligations in good faith and respect, protect and fulfil human rights in the governance of their borders.
2. States shall ensure that human rights are at the centre of the governance of migration at international borders.
3. States shall respect, promote and fulfil human rights wherever they exercise jurisdiction or effective control, including where they exercise authority or control extraterritorially. The privatisation of border governance functions does not defer, avoid or diminish the human rights obligations of the State.
[***]
B. Non-discrimination
8. The principle of non-discrimination shall be at the centre of all border governance measures. [***]
C. Assistance and protection from harm
10. States shall protect and assist migrants at international borders without discrimination. Human rights obligations, including in respect of civil, political, economic, social and cultural rights, must take precedence over law enforcement and migration management objectives.
11. States shall ensure that all border governance measures taken at international borders, including those aimed at addressing irregular migration and combating transnational organized crime, are in accordance with the principle of non-refoulement and the prohibition of arbitrary and collective expulsions.
12. States shall consider the individual circumstances of all migrants at international borders, with appropriate attention being given to migrants who may be at particular risk at international borders who shall be entitled to specific protection and individualized assistance which takes into account their rights and needs.
13. States shall ensure that all migrants who have suffered human rights violations or abuses as a result of border governance measures have equal and effective access to justice, access to effective remedies, adequate, effective and prompt reparation for harm suffered, and access to relevant information concerning violations and reparation mechanism. States shall investigate and, where warranted, prosecute human rights violations and abuses, impose sentences commensurate with the seriousness of the offence, and take measures to ensure non-repetition.
III. Recommended Guidelines on human rights at international borders
Guideline 1: Promotion and protection of human rights [***]
Guideline 2: Legal and policy framework [***]
Guideline 3: Building human rights capacity [***]
Guideline 4: Ensuring human rights in rescue and interception [***]
Guideline 5: Human rights in the context of immediate assistance [***]
Guideline 6: Screening and interviewing [***]
Guideline 7: Identification and referral [***]
Guideline 8: Avoiding detention [***]
Guideline 9: Human rights-based return or removal [***]
Guideline 10: Cooperation and coordination [***]”

 
Click here or here for Principles and Guidelines.

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Guest Post: The effect of negative labelling – Why are we still talking about ‘migrants’?

By Dr Melissa Phillips

As the number of people arriving by boat to Europe continues to rise, so does the rhetoric about an influx of ‘illegal migrants’, ‘boat migrants’ , ‘migrant boats’ and just plain ‘illegals’. Academics have long written about the impact of press reporting on asylum issues and the effect of labelling on refugees and asylum seekers.(1) Their findings show the way predominantly negative labels are repeated and entrenched having a detrimental consequence for how we understand asylum issues and perceive asylum seekers. Perhaps the most pernicious of these labels has been ‘illegal’ which human rights groups, refugee advocates and media organisations have been campaigning against as inaccurate and legally incorrect.(2)

More recently commentators have been at pains to distinguish between groups of migrants and refugees arriving in Europe by boat, noting that there are technical legal arguments to guide terminology as well as familiar tropes that we encounter through the use of one term or another. As Jesper Bjarnesen notes, refugees and labour migrants are intertwined.(3) This is why terms such as ‘mixed migration’ have become one way to bridge the sometimes blurry distinction between people who leave their homes due to political persecution and those who suffer economic hardship, acknowledging that the two can be related in situations of displacement and refugee outflows.

Yet mixed migration still ties us to the word ‘migration’ which brings along with it polarising attitudes towards migration and competition over jobs. It also evokes less sympathy than refugee or asylum seeker, with migrants having fewer advocacy bodies and organisations fighting for their interests as compared to refugees.

So what do the arrival figures along the Central Mediterranean route into Europe tell us? Frontex’s FRAN quarterly for Q4, 2013 explained that “the majority of African irregular migrants detected along the Central Mediterranean route were Eritreans”. The classification of Eritreans as ‘irregular migrants’ would seem inaccurate given that around 90% of Eritrean asylum seekers successfully claimed asylum in industrialised countries in recent years.(4) Eritrea is currently the subject of a United Nations Human Rights Council Commission of Inquiry and is known to be one of the poorest and most repressive countries in the world. The next largest group of arrivals originated from Syria and Frontex acknowledges that this group of people is escaping armed conflict in their country. However the Frontex report then goes on to refer to ‘migrant interviews’, once again conflating the terms migrant and refugee and using them interchangeably.

Beyond technical distinctions over terms and language there is a lack of personalisation of the human side of asylum seekers, refugees and migrants seeking to enter Europe by sea. It can be very difficult to find individual stories behind the frenzied media headlines claiming thousands more people are potentially on their way to Europe by boat mainly departing from Libya. It is only through individual stories and nuanced accounts of why people leave their homes and their mixed motivations for departing, that we will better understand the factors driving mobility along this route which in turn can shape policy solutions. The upcoming United Nations High Commissioner for Refugees’ 2014 Protection Dialogue focuses on Protection at Sea and calls for responses that are sensitive to the specific needs of individuals and groups.(5) Assuming that all people have the same reason for leaving their homes and getting onto boats, that all people rescued at sea are migrants and that there is a one size fits all policy response misrecognises the heterogeneity of this group. Such heterogeneity includes country of origin, gender, age and family make up including pre-existing links to Europe.

It is time we stopped talking solely about migrants and start to use more technically accurate and relevant labels. Until then we cannot readily respond to a phenomenon that is one of the most pressing and challenging of our times – assisting people in need of protection at sea.

Dr Melissa Phillips is an Honorary Fellow at the University of Melbourne.

(1) See for example, Pickering, S. (2000). “The hard press of asylum.” Forced Migration Review 8: 32-33 and Zetter, R. (1991). “Labelling Refugees: Forming and Transforming a Bureaucratic Identity.” Journal of Refugee Studies 4(1): 39-62.
(2) For more on this see recent commentary by Human Rights Watch: http://www.hrw.org/news/2014/06/24/dispatches-why-we-should-outlaw-illegal and Fact Sheets produced by the Refugee Council of Australia: http://www.refugeecouncil.org.au/f/myth-long.php as well as media outlets: http://www.sbs.com.au/goback/about/factsheets/4/are-asylum-seekers-who-arrive-by-boat-illegal-immigrants and http://www.abc.net.au/news/2014-01-24/tony-abbott-incorrect-on-asylum-seekers-breaking-australian-law/5214802
(3) Bjarnesen, Jesper (2014) ‘Refugees or migrants?’, Nordic Africa Institute, http://www.nai.uu.se/news/articles/2014/06/27/104657 .
(4) Figure cited in Regional Mixed Migration Secretariat (2014), ‘Going West: contemporary mixed migration trends from the Horn of Africa to Libya & Europe.’
(5) See http://www.unhcr.org/pages/5357caed6.html .

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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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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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Filed under Aegean Sea, Analysis, Eastern Atlantic, European Union, Frontex, Italy, Libya, Malta, Mauritania, Mediterranean, Senegal, Spain