Tag Archives: European Union

NATO Expands Aegean Sea Migrant Patrols Into Turkish and Greek Territorial Waters – Rescued Migrants to Be Automatically Returned to Turkey

NATO announced on Sunday, 6 March, that its Aegean Sea patrols have been expanded to Greek and Turkish territorial waters. NATO patrols have been operating only in international waters. And while NATO says its ‘mission is not to stop or turn back those trying to cross into Europe’, NATO has made it clear that NATO ships will return rescued migrants directly to Turkey: ‘In case of rescue at sea of persons coming via Turkey, they will be taken back to Turkey.’ NATO’s plan to summarily return intercepted migrants is consistent with previous statements made by the British and German defence ministers who have said that the purpose of the NATO mission is to stop migrants and return them to Turkey.

NATO’s characterisation of its operation seems to be an attempt to draw a distinction between a push-back practice where any migrant boat, regardless of whether it is in need of rescue, would be intercepted and pushed back and a search and rescue operation providing assistance to migrant boats in need of rescue. This is meaningless distinction given the current situation in the Aegean where every migrant boat is in need of assistance or rescue.

NATO ships are subject to the same rescue at sea obligations imposed by the SOLAS and SAR Conventions as all other ships and are obligated to disembark rescued persons in a ‘place of safety.’ And while disembarking in Turkey is safer than disembarking in Syria or Libya, there are serious questions as to whether Turkey is a place of safety. See the recent Q&A issued by Human Rights Watch concluding that Turkey is not a ‘safe third country’ as defined by EU law. While the question of a ‘place of safety’ under the SAR Convention is not identical to the ‘safe third country’ question under EU law, the fact remains that rescued migrants should not in all cases be automatically returned to Turkey without adequate screening and processing. The failure to screen rescued migrants is a clear violation of the non-refoulement obligations of the individual EU and non-EU States operating under the NATO command.

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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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Filed under Analysis, European Court of Human Rights, European Union, Frontex, Italy, Libya, Mediterranean, Refugees, Reports, UN Security Council, UNHCR

Clarification of Frontex Data On Persons Detected at EU External Borders – Includes Significant Double Counting

Yesterday Frontex released updated monthly data showing that 710,000 migrants crossed the EU’s external borders from January to September 2015. In a Twitter exchange with Nando Sigona (Univ. of Birmingham and Univ. of Oxford), Frontex clarified that it counts an individual migrant each time she crosses an external border; according to Frontex, “[t]his means that a large number of the [710,000] people who were counted when they arrived in Greece were again counted when [after passing through Greece, they entered] the EU for the second time through Hungary or Croatia.”

The 710,000 figure that was widely reported yesterday may overstate the number of individuals crossing the external borders by several hundred thousand. For example, Frontex reported that 350,000 migrants arrived in the Greek islands during the first nine months of 2015 and that 204,000 migrants crossed into Hungary during the same time period. Presumably a majority (or at least a very significant portion) of the migrants crossing into Hungary initially entered the EU via Greece and were counted at that time. Many of the tens of thousands of migrants who crossed into Croatia likewise presumably first entered the EU through Greece.

Frontex did add a disclaimer to its web site explaining the double counting: “Clarification: Frontex provides monthly data on the number of people detected at the external borders of the European Union. Irregular border crossings may be attempted by the same person several times in different locations at the external border. This means that a large number of the people who were counted when they arrived in Greece were again counted when entering the EU for the second time through Hungary or Croatia.”

And to be fair, Frontex has at times previously acknowledged that its figures include double counting. See the press statement from 14 September reporting 500,000 migrants having been detected at the external border: “However, a large number of the persons detected at the Hungarian border with Serbia had already been counted when they arrived in Greece from Turkey a few weeks earlier.” But the fact remains that much of the news coverage generated by the Frontex data will not explain the double counting.

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UN Security Council Resolution 2240: Authorizing Member States to Intercept Vessels off Libyan Coast Suspected of Migrant Smuggling

Official text here.

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Text (unofficial) of UN Security Council Resolution 2240: Authorizing Member States to Intercept Vessels off Libyan Coast Suspected of Migrant Smuggling

Here is the unofficial text of S/Res/2240 (2015) via the UN Security Council – Meetings Coverage. The official text will appear here (under embargo – not yet posted). For information media. Not an official record.

The Security Council,

“Recalling its press statement of 21 April on the maritime tragedy in the Mediterranean Sea,

“Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Libya,

“Recalling that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982, sets out the legal framework applicable to activities in the ocean,

“Reaffirming also the United Nations Convention against Transnational Organized Crime (UNTOC Convention) and its Protocol against the Smuggling of Migrants by Land, Air and Sea, as the primary international legal instruments to combat the smuggling of migrants and related conduct, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UNTOC Convention, as the primary international legal instruments to combat trafficking in persons,

“Underlining that, although the crime of smuggling of migrants may share, in some cases, some common features with the crime of trafficking in persons, Member States need to recognise that they are distinct crimes, as defined by the UNTOC Convention and its Protocols, requiring differing legal, operational, and policy responses,

“Deploring the continuing maritime tragedies in the Mediterranean Sea that have resulted in hundreds of casualties, and noting with concern that such casualties were, in some cases, the result of exploitation and misinformation by transnational criminal organisations which facilitated the illegal smuggling of migrants via dangerous methods for personal gain and with callous disregard for human life,

“Expressing grave concern at the recent proliferation of, and endangerment of lives by, the smuggling of migrants in the Mediterranean Sea, in particular off the coast of Libya and recognizing that among these migrants may be persons who meet the definition of a refugee under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto,

“Emphasizing in this respect that migrants, including asylum-seekers and regardless of their migration status, should be treated with humanity and dignity and that their rights should be fully respected, and urging all States in this regard to comply with their obligations under international law, including international human rights law and international refugee law, as applicable, stressing also the obligation of States, where applicable, to protect the human rights of migrants regardless of their migration status, including when implementing their specific migration and border security policies,

“Reaffirming in this respect the need to promote and protect effectively the human rights and fundamental freedoms of all migrants, regardless of their migration status, especially those of women and children, and to address international migration through international, regional or bilateral cooperation and dialogue and through a comprehensive and balanced approach, recognizing the roles and responsibilities of countries of origin, transit and destination in promoting and protecting the human rights of all migrants, and avoiding approaches that might aggravate their vulnerability,

“Further recalling the International Convention for the Safety of Life at Sea and the International Convention on Maritime Search and Rescue,

“Expressing further concern that the situation in Libya is exacerbated by the smuggling of migrants and human trafficking into, through and from the Libyan territory, which could provide support to other organised crime and terrorist networks in Libya,

“Mindful of its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations,

“Underlining the primary responsibility of the Libyan Government to take appropriate action to prevent the recent proliferation of, and endangerment of lives by, the smuggling of migrants and human trafficking through the territory of Libya and its territorial sea,

“Mindful of the need to support further efforts to strengthen Libyan border management, considering the difficulties of the Libyan Government to manage effectively the migratory flows in transit through Libyan territory, and noting its concern for the repercussions of this phenomenon on the stability of Libya and of the Mediterranean region,

“Welcoming support already provided by the most concerned Member States, including Member States of the European Union (EU), taking into account inter alia the role of FRONTEX and the specific mandate of EUBAM Libya in support of the Libyan Government, and by neighbouring States,

“Acknowledging the European Council statement of 23 April 2015 and the press statement of the African Union Peace and Security Council of 27 April, which underlined the need for effective international action to address both the immediate and long-term aspects of human trafficking towards Europe,

“Taking note of the Decision of the Council of the European Union of 18 May 2015 setting up ‘EUNAVFOR Med’ which underlined the need for effective international action to address both the immediate and long-term aspects of migrant smuggling and human trafficking towards Europe,

“Taking further note of the ongoing discussions between the EU and the Libyan Government on migration related issues,

“Expressing also strong support to the States in the region affected by the smuggling of migrants and human trafficking, and emphasizing the need to step up coordination of efforts in order to strengthen an effective multidimensional response to these common challenges in the spirit of international solidarity and shared responsibility, to tackle their root causes and to prevent people from being exploited by migrant smugglers and human traffickers,

“Acknowledging the need to assist States in the region, upon request, in the development of comprehensive and integrated regional and national strategies, legal frameworks, and institutions to counter terrorism, transnational organised crime, migrant smuggling, and human trafficking, including mechanisms to implement them within the framework of States’ obligations under applicable international law,

“Stressing that addressing both migrant smuggling and human trafficking, including dismantling smuggling and trafficking networks in the region and prosecuting migrant smugglers, and human traffickers requires a coordinated, multidimensional approach with States of origin, of transit, and of destination, and further acknowledging the need to develop effective strategies to deter migrant smuggling and human trafficking in States of origin and transit,

“Emphasizing that migrants should be treated with humanity and dignity and that their rights should be fully respected, and urging all States in this regard to comply with their obligations under international law, including international human rights law and international refugee law, as applicable,

“Bearing in mind the obligations of States under applicable international law to exercise due diligence to prevent and combat migrant smuggling and human trafficking, to investigate and punish

perpetrators, to identify and provide effective assistance to victims of trafficking and migrants and to cooperate to the fullest extent possible to prevent and suppress migrant smuggling and human trafficking,

“Affirming the necessity to put an end to the recent proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean Sea off the coast of Libya, and, for these specific purposes, acting under Chapter VII of the Charter of the United Nations,

“1. Condemns all acts of migrant smuggling and human trafficking into, through and from the Libyan territory and off the coast of Libya, which undermine further the process of stabilisation of Libya and endanger the lives of thousands of people;

“2. Calls on Member States acting nationally or through regional organisations, including the EU, to assist Libya, upon request, in building needed capacity including to secure its borders and to prevent, investigate and prosecute acts of smuggling of migrants and human trafficking through its territory and in its territorial sea; in order to prevent the further proliferation of, and endangerment of lives by, the smuggling of migrants and human trafficking into, through and from the territory of Libya and off its coast;

“3. Urges Member States and regional organisations, in the spirit of international solidarity and shared responsibility, to cooperate with the Libyan Government, and with each other, including by sharing information about acts of migrant smuggling and human trafficking in Libya’s territorial sea and on the high seas off the coast of Libya, and rendering assistance to migrants and victims of human trafficking recovered at sea, in accordance with international law;

“4. Urges States and regional organisations whose naval vessels and aircraft operate on the high seas and airspace off the coast of Libya, to be vigilant for acts of migrant smuggling and human trafficking, and in this context, encourages States and regional organisations to increase and coordinate their efforts to deter acts of migrant smuggling and human trafficking, in cooperation with Libya;

“5. Calls upon Member States acting nationally or through regional organisations that are engaged in the fight against migrant smuggling and human trafficking to inspect, as permitted under international law, on the high seas off the coast of Libya, any unflagged vessels that they have reasonable grounds to believe have been, are being, or imminently will be used by organised criminal enterprises for migrant smuggling or human trafficking from Libya, including inflatable boats, rafts and dinghies;

“6. Further calls upon such Member States to inspect, with the consent of the flag State, on the high seas off the coast of Libya, vessels that they have reasonable grounds to believe have been, are being, or imminently will be used by organised criminal enterprises for migrant smuggling or human trafficking from Libya;

“7. Decides, with a view to saving the threatened lives of migrants or of victims of human trafficking on board such vessels as mentioned above, to authorise, in these exceptional and specific circumstances, for a period of one year from the date of the adoption of this resolution, Member States, acting nationally or through regional organisations that are engaged in the fight against migrant smuggling and human trafficking, to inspect on the high seas off the coast of Libya vessels that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking from Libya, provided that such Member States and regional organisations make good faith efforts to obtain the consent of the vessel’s flag State prior to using the authority outlined in this paragraph;

“8. Decides to authorise for a period of one year from the date of the adoption of this resolution, Member States acting nationally or through regional organisations to seize vessels inspected under the authority of paragraph 7 that are confirmed as being used for migrant smuggling or human trafficking from Libya, and underscores that further action with regard to such vessels inspected under the authority of paragraph 7, including disposal, will be taken in accordance with applicable international law with due consideration of the interests of any third parties who have acted in good faith;

“9. Calls upon all flag States involved to cooperate with respect to efforts under paragraphs 7 and 8, and decides that Member States acting nationally or through regional organisations under the authority of those paragraphs shall keep flag States informed of actions taken with respect to their vessels, and calls upon flag States that receive such requests to review and respond to them in a rapid and timely manner;

“10. Decides to authorise Member States acting nationally or through regional organisations to use all measures commensurate to the specific circumstances in confronting migrant smugglers or human traffickers in carrying out activities under paragraphs 7 and 8 and in full compliance with international human rights law, as applicable, underscores that the authorizations in paragraph 7 and 8 do not apply with respect to vessels entitled to sovereign immunity under international law, and calls upon Member States and regional organisations carrying out activities under paragraphs 7, 8 and this paragraph, to provide for the safety of persons on board as an utmost priority and to avoid causing harm to the marine environment or to the safety of navigation;

“11. Affirms that the authorisations provided in paragraphs 7 and 8 apply only with respect to the situation of migrant smuggling and human trafficking on the high seas off the coast of Libya and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under UNCLOS, including the general principle of exclusive jurisdiction of a flag State over its vessels on the high seas, with respect to any other situation, and further affirms that the authorisation provided in paragraph 10 applies only in confronting migrant smugglers and human traffickers on the high seas off the coast of Libya;

“12. Underscores that this resolution is intended to disrupt the organised criminal enterprises engaged in migrant smuggling and human trafficking and prevent loss of life and is not intended to undermine the human rights of individuals or prevent them from seeking protection under international human rights law and international refugee law;

“13. Emphasises that all migrants, including asylum-seekers, should be treated with humanity and dignity and that their rights should be fully respected, and urges all States in this regard to comply with their obligations under international law, including international human rights law and international refugee law, as applicable;

“14. Urges Member States and regional organisations acting under the authority of this resolution to have due regard for the livelihoods of those engaged in fishing or other legitimate activities;

“15. Calls upon all States, with relevant jurisdiction under international law and national legislation, to investigate and prosecute persons responsible for acts of migrant smuggling and human trafficking at sea, consistent with States’ obligations under international law, including international human rights law and international refugee law, as applicable;

“16. Calls for Member States to consider ratifying or acceding to, and for States Parties to effectively implement the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, and as well as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children;

“17. Requests States utilising the authority of this resolution to inform the Security Council within three months of the date of adoption of this resolution and every three months thereafter on the progress of actions undertaken in exercise of the authority provided in paragraphs 7 to 10 above;

“18. Requests the Secretary-General to report to the Security Council eleven months after the adoption of this resolution on its implementation, in particular with regards to the implementation of paragraphs 7 to 10 above;

“19. Expresses its intention to review the situation and consider, as appropriate, renewing the authority provided in this resolution for additional periods;

“20. Decides to remain seized of the matter.”

For information media. Not an official record.

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UN Security Council to Vote Today, 8 October, on Resolution Authorising EU to Inspect and Seize Vessels on High Seas Suspected of Engaging in Smuggling or Trafficking of Persons

From What’s in Blue: The Security Council “is expected to vote [on 8 Oct. 2015] on a resolution aimed at disrupting human trafficking and the smuggling of migrants on the high seas off the coast of Libya. …

The draft resolution authorises member states, acting nationally or through regional organisations, to inspect vessels on the high seas off the coast of Libya that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking. Furthermore, the draft authorises member states to seize vessels if there is confirmation that they are being used for migrant smuggling or human trafficking from Libya. These authorisations are for a period of one year from the date of the adoption, and the draft stresses how these are given in exceptional and specific circumstances. …

It seems that the two most divisive issues during negotiations related to references to Chapter VII and the use of force. Several Council members, including Chad, Russia and Venezuela, raised concerns over the implications of having a Chapter VII resolution with a broad mandate. Following bilateral negotiations, the draft to be voted on is under Chapter VII but states that this is specifically to put an end to the recent ‘proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean sea off the coast of Libya’. …

In relation to the use of force, one of the difficulties was defining the instances in which member states are authorised to use force. The initial draft circulated by the UK included an authorisation to use ‘all necessary measures’ in confronting migrant smugglers or human traffickers. Some Council members wanted further guarantees that this was not a blanket mandate to use force. As a result of the members’ concerns compromise language was added to authorise member states to use ‘all measures commensurate to the specific circumstances’ in confronting them. …

While Council negotiations were put on hold during the high-level debate of the UN General Assembly, amendments were made to the draft in order to secure the consent of the Libyan permanent mission to the UN. …

Some Council members stressed the need to respect international refugee law, as well as the protection of the rights of migrants and asylum seekers. The draft underscores that it is not intended to undermine the human rights of individuals or prevent them from seeking protection under international human rights law and international refugee law.

The resolution is expected to provide legal backing for the EU NAVFOR MED’s operation in the high seas (which was renamed Operation Sophia on 28 September). … Council negotiations over a draft resolution authorising such an operation earlier this year (April-May) were put on hold following difficulties getting consent from Libyan authorities to operate in the territorial waters of Libya and its shore. Following the humanitarian crisis in the Mediterranean this summer, EU Council members decided to narrow the scope of the resolution to vessels operating on the high seas off the coast of Libya. A subsequent phase of the deployment of the operation in the territorial waters and on the shore of Libya is likely to be contingent upon the formation of a government of national accord in Libya.”

Full text of What’s in Blue article here.

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NY Times: Russia Resisting EU Request for Tough U.N. Anti-Smuggling Step

New York Times: “A European bid to obtain Security Council approval for a military operation against boats suspected of human smuggling on the Mediterranean Sea is running into opposition from Russia, which wants to ensure that it cannot be used to justify a broader military intervention, diplomats here said. … [Russian UN ambassador Vitaly Churkin said that any resolution needs to be focused.] Mr. Churkin said that he wanted to ensure such a resolution did not set a precedent, and that he would not consent to the entire resolution’s being under Chapter VII, which authorizes potential military action….”
Full article here.

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UN Security Council is Again Discussing Resolution to Authorise EU Use of Force Against Migrant Vessels

What’s in Blue and the New York Times report that “it appears that EU [Security] Council members are currently discussing with non-EU P5 members a draft resolution authorising EU NAVFOR Med to intercept boats used by human trafficking networks on the high seas of the Mediterranean.”

NY Times: The resolution “would authorize military action on a specific route on the high seas from the coast of Libya north to Italy. The proposal is a significant step down from what the European leaders originally wanted: the Council’s blessing to conduct military operations along the Libyan coast, on land and water, to seize and disrupt the smugglers. …  According to one Security Council diplomat, the resolution would allow for boats to be seized and for the people on board to be taken to Italy, where the authorities would determine who among them might be eligible for asylum because they were fleeing war or persecution….”

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Der Spiegel: What Juncker’s quota system would look like.

Der Spiegel: A Continent Adrift: Juncker Proposes Fixes to EU’s Broken Asylum Policies. Graphic: What Juncker’s quota system would look like.

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Statewatch’s EU MED Crisis web page

Statewatch is publishing a dedicated web page, Statewatch Observatory: EU MED crisis – a humanitarian emergency: “This Observatory covers the arrival of migrants and the reactions and failures within the EU (both governmental and within communities) News and Official documents and commentaries (coming soon) Edited by Tony Bunyan.”

Recent postings:

September 2015

+EU: HUMANITARIAN CRISIS: Council of the European Union encouraging MS to use more entry bans (dated 8 September 2015): Draft Council Conclusions on alerts in the SIS for the purpose of refusing entry and stay pursuant to Article 24 of the SIS II Regulation upon a return decision (doc no: 11648-15, pdf). The document notes:

“At its meeting on 25 and 26 June 2015, the European Council concluded that “Member States will fully implement the Return Directive, making full use of all measures it provides to ensure the swift return of irregular migrants; return decisions issued by the Member States will be introduced in the Schengen Information System” [emphasis added]
The Council wants a “new legislative package” but in “short-term” want to use a “soft law” (non-binding, but enabling) set of Council “Conclusions” and:

“The Permanent Representatives Committee is invited to confirm agreement on the draft Council Conclusions as set out in the Annex and to submit them to the Council (Justice and Home Affairs) on 14 September 2015 for adoption as an A point.”
Statewatch notes that: “A Points” are nodded through without debate.

+EU: Council of the European Union: Migration: EU action and state of play (dated 9 September 2015, LIMITE doc no: 11782-15, pdf) including:

(8) those “claiming for asylum have to be immediately channelled into an asylum procedure relying on the EASO support teams. Registration and fingerprinting of migrants have to be closely linked to effective return policies for those who do not need protection. Frontex will help Member States by coordinating the return of irregular migrants.

(9) The deficiencies of the current system of fingerprinting, whereby incoming migrants claiming asylum cannot be forced to give their fingerprints, should be addressed by fully using or eventually amending relevant asylum legislation. In the meantime, the guidelines to facilitate the systematic taking of fingerprints as agreed by Member States should be followed thoroughly, including, if necessary, through the application of Article 15 of the Return Directive on detention.” and notes that Stage 2 of EUNAVFOR is ready and:

“the next phase of the operation, focusing on conducting boarding, search, seizure and diversion on the high seas of vessels suspected of being used for human
smuggling or trafficking”

Statewatch comments: It is not clear that the Council is aware, despite the Stage 1 intelligence-gathering, that only refugees are in the boats crossing into Greece from Turkey and that the motorised rubber-dinghies are destroyed after everyone is safely ashore.

[***]

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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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HRVP Mogherini’s Summary of Informal Meeting of EU Foreign Ministers on Refugee Crisis: The meeting “was not an easy one…”

These are excerpts/highlights from comments made by HRVP Federica Mogherini at the conclusion of Saturday’s, 5 September, informal meeting of EU foreign ministers. The full text of her remarks is here.

  • The meeting  “was not an easy one…”
  • “[W]e need to start using the right words: [the crisis] is partially a migrant flow, but it is mainly a refugee flow, which puts us in a different situation when it comes to our legal and moral duties.”
  • “I hope – finally, finally – we all realise that these people are coming to Europe, not to one or another Member State. … Unfortunately, it took us some months to realise this, but maybe that awareness is finally there.”
  • “We are all facing a … dramatic event. I don’t say an emergency event, because this is not an emergency: it is an urgency we are facing, but it is not something that starts one day and finishes another day. It is here to stay and the sooner we accept it, politically and psychologically, the sooner we will be able to respond in an effective way and manage it in an effective way.”
  • “Now we agreed to strengthen our cooperation – not only within the European Union, but also with the Candidate Countries – on five different levels… Some of them have started already, some of them are going to be further defined … in particular with the package that the Commission is going to adopt in this coming week, with the decisions that the Ministers of Interior and Justice will be called to take within one week, ten days from now.”
  • “[W]e will have a Foreign Affairs Council, a European Council, which for the moment are planned for October…”
  • “[W]e agreed to strengthen cooperation on five different elements[:]
    • First of all, how to ensure better protection to those in need of protection: asylum seekers are entitled to the status of refugee.
    • Second, manage borders in full respect of our values, first of all respect for human rights.
    • Third, fighting against smugglers’ and traffickers’ networks. … And as I did with the Defence Ministers the day before yesterday, today I shared again with the Foreign Ministers my suggestion to transit to phase 2 of this operation, which would allow us to operate in high seas to fight the traffickers and smugglers. And I have found a large consensus about that need for the naval operation. Obviously, we will also need to increase the level of our actions against the traffickers organisations on the mainland, when it comes to the Western Balkans route.
    • Fourth, strengthening our partnership with third countries, mainly countries of origin and transit. Here, obviously, we are working on readmission and return agreements, but not only. We know very well that it is very important for our partners, especially in Africa and the Middle East, to work together with us on economic developments, opportunities for growth and jobs, especially for their young people. …
    • Fifth point, that is maybe the most important, even if it is the most long term plan – it is our common work on what we call the root causes. In this case, that has mainly two aims. One is Libya, when it comes to the Southern corridor. And here, we have re-expressed all our active support to the last phases… hopefully, the last phases of the UN-led negotiations to form a National Unity Government in Libya. … And [the other is] Syria…”

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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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Statement by UN High Commissioner for Refugees António Guterres on Refugee Crisis in Europe

Full text of Statement by UN High Commissioner for Refugees António Guterres on Refugee Crisis in Europe:

Geneva, 4 September 2015

STATEMENT BY UN HIGH COMMISSIONER FOR REFUGEES, ANTÓNIO GUTERRES ON REFUGEE CRISIS IN EUROPE

The European Union is preparing key emergency meetings to take decisions in its response to the present refugee and migration crisis. The situation requires a massive common effort that is not possible with the current fragmented approach. Europe is facing its biggest refugee influx in decades. More than 300,000 people have risked their lives to cross the Mediterranean Sea so far this year. Over 2,600 didn’t survive the dangerous crossing, including three-year-old Aylan, whose photo has just stirred the hearts of the world public. After arriving on Europe’s shores and borders, they continue their journey – facing chaos and suffering indignity, exploitation and danger at borders and along the way. The selfless generosity of private citizens and civil society organizations reaching out to welcome and help the new arrivals is truly inspiring. And there has been exemplary political and moral leadership from a number of countries. But overall, Europe has failed to find an effective common response, and people have suffered as a result. To address this untenable situation, we all must keep in mind a number of fundamental points:

  1. This is a primarily refugee crisis, not only a migration phenomenon. The vast majority of those arriving in Greece come from conflict zones like Syria, Iraq or Afghanistan and are simply running for their lives. All people on the move in these tragic circumstances deserve to see their human rights and dignity fully respected, independently of their legal status. But we cannot forget the particular responsibility all states have vis a vis refugees, in accordance with international law.
  2. Europe cannot go on responding to this crisis with a piecemeal or incremental approach. No country can do it alone, and no country can refuse to do its part. It is no surprise that, when a system is unbalanced and dysfunctional, everything gets blocked when the pressure mounts. This is a defining moment for the European Union, and it now has no other choice but to mobilize full force around this crisis. The only way to solve this problem is for the Union and all member states to implement a common strategy, based on responsibility, solidarity and trust.
  3. Concretely, this means taking urgent and courageous measures to stabilize the situation and then finding a way to truly share responsibility in the mid to longer term. The EU must be ready, with the consent and in support of the concerned governments – mainly Greece and Hungary, but also Italy – to put in place immediate and adequate emergency reception, assistance and registration capacity. The European Commission should mobilize the EU asylum, migration and civil protection agencies and mechanisms for this purpose, including the resources of member states and with the support of UNHCR, IOM and civil society. From our side, UNHCR is fully committed to step up its efforts. It is essential that refugee families that disembark in Europe after having lost everything are welcomed into a safe and caring environment.
  4. People who are found to have a valid protection claim in this initial screening must then benefit from a mass relocation programme, with the mandatory participation of all EU member states. A very preliminary estimate would indicate a potential need to increase relocation opportunities to as many as 200,000 places. This can only work if it goes hand in hand with adequate reception capacities, especially in Greece. Solidarity cannot be the responsibility of only a few EU member states.
  5. Those who are found not to be in need of international protection and who cannot benefit from legal migration opportunities should be helped to return quickly to their home countries, in full respect of their human rights.
  6. The only ones who benefit from the lack of a common European response are the smugglers and traffickers who are making profit from people’s desperation to reach safety. More effective international cooperation is required to crack down on smugglers, including those operating inside the EU, but in ways that allow for the victims to be protected. But none of these efforts will be effective without opening up more opportunities for people to come legally to Europe and find safety upon arrival. Thousands of refugee parents are risking the lives of their children on unsafe smuggling boats primarily because they have no other choice. European countries – as well as governments in other regions – must make some fundamental changes to allow for larger resettlement and humanitarian admission quotas, expanded visa and sponsorship programmes, scholarships and other ways to enter Europe legally. Crucially, family reunification has to become a real, accessible option for many more people than is currently the case. If these mechanisms are expanded and made more efficient, we can reduce the number of those who are forced to risk their lives at sea for lack of alternative options.

Beyond the immediate response, it is clear that this situation will require us to reflect seriously about the future. This massive flow of people will not stop until the root causes of their plight are addressed. Much more must be done to prevent conflicts and stop the ongoing wars that are driving so many from their homes. The countries neighbouring war zones, which shelter 9 in 10 refugees worldwide, must be supported more strongly, along with the funding required. At the same time, it is also essential that development cooperation policies are reoriented with the objective of giving people the opportunity to have a future in their own countries.

Europe is facing a moment of truth. This is the time to reaffirm the values upon which it was built.

News contacts:

UNHCR Headquarters, Switzerland

Melissa Fleming: +41 79 557 9122

Adrian Edwards: +41 79 557 9120

William Spindler: +41 79 217 3011

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Frontex Director: EU Military Operation Near Libya May Shift Migration Routes to Eastern Mediterranean

In an interview published earlier this week in Les Echos, Frontex Director Fabrice Leggeri noted that there already exists a small shift in migration flows from the central Mediterranean to the eastern Mediterranean: “The pressure is growing stronger on the eastern Mediterranean. … Since early 2015, and before last weekend, there were slightly more arrivals from Turkey: 40.000 irregular crossing in the Greek islands, against 37,000 in Italy. The number of Syrian refugees is decreasing steadily in Italy. Syrian families prefer to avoid Libya because the security conditions there have worsened significantly. The smugglers are much more violent in Libya.”

[“La pression est de plus en forte sur la Méditerranée orientale. … Depuis le début 2015, et avant le week-end dernier, il y avait légèrement plus d’arrivées en provenance de Turquie : 40.000 franchissement irréguliers dans les îles grecques, contre 37.000 en Italie. Le nombre de réfugiés syriens diminue de manière constante en Italie. Les familles syriennes préfèrent éviter la Libye car les conditions de sécurité s’y sont nettement dégradées. Les passeurs sont beaucoup plus violents en Libye.”]

Director Leggeri noted that an EU military operation near Libya may simply move some of the migration flow further to the east: “Migration routes are extremely flexible and can change rapidly. There is strong pressure [migratory] on the European Union in general from those who come from the African continent and the Middle East. … If there is a military operation in the vicinity of Libya, this may change the migration routes and make them move to the eastern route.”

[“Les routes migratoires sont extrêmement flexibles et peuvent se modifier rapidement. Il y a une forte pression sur l’Union européenne de manière générale qui vient du continent africain et du Proche-Orient. … S’il y a une opération militaire au voisinage de la Libye, cela peut changer les routes migratoires et les faire basculer vers la route de l’Est.”]

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