Tag Archives: Human Rights

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.
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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.
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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.
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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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OHCHR to Issue Recommended Principles and Guidelines on Human Rights at International Borders (22 Oct-Brussels; 23 Oct-New York)

The Office of the High Commissioner for Human Rights next week will launch Recommended Principles and Guidelines on Human Rights at International Borders. The Guidelines will be released and discussed at events in Brussels on 22 October 2014 and New York on 23 October.

From OHCHR: “These Guidelines are offered by OHCHR to states and other relevant stakeholders to develop human-rights respecting border governance measures; and thus improve the respect, protection and fulfilment of migrants at international borders.”

“OHCHR has been working on these principles and guidelines since 2012, together with multiple stakeholders. They accompany the report of the Secretary-General on the Protection of Migrants (A/69/277) (also available here) and will be provided to the 69th session of the General Assembly (GA).”

“International borders are not zones of exclusion or exception of human rights obligations. States have the duty to comply with their human rights obligations and all of the safeguards and checks and balances that are embedded in national legislation. States are bound by these duties wherever they exercise their jurisdiction; including where their migration governance operations take place.”

“Policies curtailing migration often result in the diversion of migrants into irregular channels where vulnerabilities are exacerbated. Conversely, rights-based approaches to border and migration governance that adhere to internationally recognized standards bolster the capacity of the international community to mount effective and sustainable challenges to abusive migration and transnational organized crime. Developing a set of principles and guidelines on human rights at international borders would offer tools to translate the international human rights framework into practical measures for border governance, ensuring that measures taken to address migration (including irregular migration), migrant smuggling, and other cross-border phenomena do not violate human rights.”

Click here (Brussels event) and here (New York side event) for more information on the release of the Guidelines.

The Guidelines will be made available here on 21 October 2014: http://www.ohchr.org/EN/Issues/Migration/Pages/WSReportGA69.aspx.

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Conference: “Using Human Security as a legal framework to analyse the Common European Asylum System”, CLEER, T.M.C. Asser Instituut, The Hague, 4 July

The Centre for the Law of EU External Relations (CLEER) will hold conduct the following conference on 4 July in the Hague: ‘Using Human Security as a legal framework to analyse the Common European Asylum System.’ The event is free of charge, however registration is required. Please register here.

From the conference web page:  “The conference is the second event of CLEER’s project ‘Human Security: a new framework for enhanced human rights in the EU’s foreign security and migration policies’, implemented with the support of the Lifelong Learning Programme (LLP) of the European Union.

The project runs from 1 September 2013 until 31 August 2014 and aims at facilitating academic interaction in closely interrelated areas of EU external conduct, creating synergies between and raising awareness of global security concerns. The project will, specifically, integrate elements of EU external action in security, development and migration policies, through the paradigm of human security.

This expert conference will explore new territory in its analysis of protection under the Common European Asylum System through the prism of Human Security. In the second and final part of the CLEER Jean Monnet conferences on Human Security, this high level gathering will bring together specialists and practitioners in the area of EU asylum law. It will take stock of recent developments in legislation, jurisprudence and doctrine; proposing insightful approaches to contemporary asylum challenges.

The four thematic panels of the conference will analyse the added value of using Human Security as a legal framework for protection in Asylum law whilst assessing the prospects of legal interaction between both fields. Sessions will concentrate on the concept of Human Security as a legal tool for interpretation of EU instruments. Emphasis will be placed on the Dublin Regime along with obligations that Member States must adhere to in applying substantive protection rights for those seeking asylum. Attention will also be paid to the use of Human Security as an operational tool for border management and the consistent application of EU norms. The conference will end with a contextualisation of the debate, specifically focusing on the relations between the EU and South Mediterranean States.

The conference will be of direct interest to everyone working and studying in the Area of Freedom, Security and Justice of the EU, notably the asylum and refugee fields. In this regard practitioners, lawyers, judges, scholars, academics, students, civil servants, military and civilian authorities are all encouraged to come. Each panel will be followed by a question and answer session allowing for the audience to participate in the debate, thereby contributing to a unique perspective on EU asylum law and its protection regime.”

 

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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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Filed under Analysis, European Union, Frontex, Greece, Italy, Libya, Malta, Mediterranean, Turkey

UN Special Rapporteur on HR of Migrants expresses concern over plight of irregular migrants in Greece; calls for EU assistance; Frontex patrolling Greece-Italy sea border

The UN Special Rapporteur on the human rights of migrants, Prof. François Crépeau, has completed  a nine-day official visit to Greece, the fourth and last country visit in connection with a “a one-year comprehensive study to examine the rights of migrants in the Euro-Mediterranean region, focusing in particular on the management of the external borders of the European Union.”  The Special Rapporteur will present a thematic report on the human rights of migrants at the borders of the European Union to the UN Human Rights Council in May/ June 2013.  In addition to the visit to Greece, he previously conducted official visits to EU offices in Brussels, Tunisia, Turkey, and Italy.

One point of particular interest in the Special Rapporteur’s end-of-mission statement is that Frontex sea patrols in Greece are not along being used to patrol the external sea border of the EU (Greece-Turkey), but are also being used to patrol the sea border between Greece and Italy to prevent irregular migrants from leaving Greece.  (Is this within Frontex’s mandate?)  According to the end-of mission statement, Frontex Joint Operation Poseidon Sea “which used to cover the sea border between Greece and Turkey, was extended in 2012 to also cover the west coast of Greece, where migrants trying to reach Italy by boats operated by smugglers are intercepted and returned to Greece.”

The Special Rapporteur also notes “[t]he enhanced border controls at the Greek-Turkish land border under operation ‘Aspida’ (‘Shield’) initiated in August 2012, which included the deployment of approximately 1800 border police officers, coupled with the construction of a fence and the Frontex operation ‘Poseidon Land’ have resulted in a renewed influx of irregular migrants via the islands of the eastern Aegean Sea, with boats arriving on the different islands almost daily.”

Here are additional excerpts from the end-of-mission statement:

“[W]hile most EU countries have stopped returning asylum seekers to Greece under the Dublin II Regulation due to a decision of the European Court of Human Rights (M.S.S. vs Belgium and Greece), I was informed that there are still some returns to Greece based on this Regulation.”

“As the large number of irregular migrants stuck in Greece is mainly a result of EU policies and practices, there is a strong need for solidarity and responsibility-sharing within the EU in order to ensure full respect of the human rights of all these migrants.”

“While the role of the EU in managing the migration flows in Greece is crucial, the Greek government also needs to significantly step up its efforts in order to ensure that the rights of all migrants within its territory are fully respected.”

“I am deeply concerned about the widespread xenophobic violence and attacks against migrants in Greece, and I strongly condemn the inadequate response by the law enforcement agencies to curb this violence, and to punish those responsible.”

“I also deeply regret the Greek government’s new policy of systematically detaining everyone they detect irregularly entering the Greek territory, including unaccompanied children and families. I also regret the ‘sweep operations’ in the context of operation ‘Xenios Zeus’, which have led to widespread detention of migrants in different parts of the country, many of whom have lived and worked in Greece for years.”

Among the several preliminary recommendations to Greece and the EU was the recommendation that the EU “[e]nsure that the full protection of the human rights of all migrants, regardless of their status, is the primary consideration for its support to the Greek efforts in managing the migration flow entering the EU territory, including in relation to the activities undertaken by Frontex at the Greek borders.”

Click here for complete End-of-Mission Statement.

Click here for my previous post on the Special Rapporteur’s visits to other countries.

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UN Special Rapporteur on HR of Migrants expresses concern over Italy-Libya cooperation on migration

The UN Special Rapporteur on the human rights of migrants, Prof. François Crépeau, for the past six months has been conducting “a one-year comprehensive study to examine the rights of migrants in the Euro-Mediterranean region, focusing in particular on the management of the external borders of the European Union.”  The Special Rapporteur will present a thematic report on the human rights of migrants at the borders of the European Union to the UN Human Rights Council in June 2013.  To date he has concluded official visits to EU offices in Brussels, Tunisia, Turkey, and Italy; a nine-day visit to Greece began on 25 November.  The Special Rapporteur has issued preliminary conclusions at the end of each completed mission.  One common concern is that various actions of the EU and neighbouring countries are resulting in human rights considerations being overshadowed by migration control and security objectives.

At the conclusion of the most recent mission to Italy (30 September – 8 October 2012), the Special Rapporteur expressed concern over Italy’s (and the EU’s) ongoing cooperation with Libya:

“Another matter of paramount importance are the bilateral cooperation agreements negotiated between Italy and its neighbours on the question of migration. Although the EU has negotiated a number of EU wide readmission agreements, the absence of a clear regional framework for such agreements, including a lack of minimum human rights standards, has led to the creation of a number of bilateral readmission agreements between Italy and its neighbours which often do not appear to have human rights at their core.  Of particular concern is the Italy-Libya bilateral cooperation on migration. The 2008 agreement formalised cooperation to strengthen Libya`s capacity to intercept irregular migrants on Libyan territory or territorial waters, even though Libya’s record at effectively protecting the human rights of migrants was poor and reports of human rights abuses of migrants in Libya were frequent. In line with the decision of the European Court of Human Rights pronounced in the Hirsi case that such ‘push-backs’ by Italian authorities towards Libya were not acceptable, the agreement is currently suspended and the Hirsi-defined push-backs appear to have ceased. However, Italy-Libya migration cooperation was recently reinforced through a 2012 processo verbale. This new political framework however, contains very little concrete information on strengthening Libya’s normative framework and institutional capacities regarding the human rights of migrants.”

The Special Rapporteur also expressed concern that the current technical assistance in Search and Rescue capability being provided by Italy to Libya is in effect disguised migration control assistance:

 “Moreover, I have learnt of increased bilateral cooperation between Italian and Libyan authorities regarding search and rescue operations, including the provision of logistical and technical support to Libyan coast guards. Whilst increased search and rescue capacity in the Mediterranean is undoubtedly of paramount importance, I have observed that there appears to be a strong focus on strengthening the capacities of the Libyan authorities to intercept migrants hoping to reach Europe, on both their territory and in their territorial waters, and return them to Libya. In this context, I warn EU member states against a progressive ‘externalisation’ of border control. In particular, considering the on-going difficulties of the Libyan authorities and the reports of human rights abuses against migrants on Libyan territory, this migration cooperation with Libya should not lead to any migrant being returned to Libyan shores against their will, either by Italian coast guards or Guardia di Finanza, or by Libyan coast guards with the technical or logistical support of their Italian counterparts.”

While acknowledging the important support provided to Italy by Frontex, the Special Rapporteur expressed concern over certain Frontex activities in Italy:

“[  ] I am aware that the key focus of FRONTEX remains information and intelligence gathering. In Italy FRONTEX thus works predominantly with the Guarda di Finanza and the Border Police to combat irregular migration, migrant smuggling and other migration related crimes. I remain concerned that these security objectives still appear to overshadow human rights considerations. For example, I have learned that FRONTEX officers conduct interviews with migrants in Italian detention facilities in order to gather information on their journeys. However these interviews are conducted without any external supervision. It is thus essential that effective human rights standards be integrated into all departments and agencies related to border management.”

The Special Rapporteur made the following “Preliminary Recommendations to the Italian government”:

  • “Ensure that migration cooperation with Libya does not lead to any migrant being returned to Libyan shores against their will, either by Italian authorities, or by Libyan authorities with the technical or logistical support of their Italian counterparts.
  • Prohibit the practice of informal automatic “push-backs” to Greece.
  • Guarantee the full access by international organisations, including UNHCR and IOM, civil society organisations and lawyers to all areas where migrants are held or detained to identify protection concerns
  • Develop a nation-wide regulatory framework, with respect for human rights at its core, for the organisation and management of all migrant detention centres.
  • Develop a simpler and fairer appeal system for expulsion and detention orders that integrates human rights considerations at each procedural step.
  • Develop a speedier identification system, including commencing the identification of foreign inmates whilst in prison, in order to make sure that detention of migrants for identification purposes is limited to the shortest time possible, with a maximum of 6 months.”

Similar concerns were expressed by the Special Rapporteur after his missions to Tunisia and Turkey:

Tunisia, 8 June 2012: “… Nevertheless, I learned that a large majority of regional migration initiatives coming from the EU continue to be focused on issues of border control, and do not consider important issues such as the facilitation of regular migration channels. Thus I encourage the European authorities to develop, in the context of the Migration and Mobility Partnership currently being negotiated, and in conjunction with bilateral agreements of the Member States of the Union, a more nuanced policy of migration cooperation with Tunisia, which moves beyond security issues to develop new initiatives in consultation and in real partnership with Tunisian authorities, which place at their core the respect, protection and promotion of the human rights of migrants….”

Turkey, 29 June 2012:  “… While the EU and Turkey have developed a close cooperation on migration issues, which has led to some notable positive developments, the assistance offered to Turkey regarding migration management appears to focus largely on securitising the borders and decreasing irregular migration to the European common territory through focusing on projects related to the detention and removal of migrants in Turkey and the increased monitoring of the Turkish border. Often neglected from the equation, is an equivalent emphasis on the human rights of those most vulnerable and most affected by the migration process: the migrants themselves….”

The Special Rapporteur will likely issue preliminary observations at the conclusion of the current mission to Greece on or after 3 December.

Click here (Italy), here (Tunisia), and here (Turkey) for the Special Rapporteur’s statements.

Click here for the web site for the UN Special Rapporteur on the human rights of migrants.

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AI Report: S.O.S. Europe – Human Rights and Migration Control

Amnesty International today has released a report, “S.O.S. Europe: Human Rights and Migration Control,” examining “the human rights consequences for migrants, refugees and asylum-seekers that have occurred in the context of Italy’s migration agreements with Libya.”

The Report is accompanied by the “the launch of Amnesty International’s ‘When you don’t exist campaign‘, which … seeks to hold to account any European country which violates human rights in enforcing migration controls. When you don’t exist aims to defend the rights of migrants, refugees and asylum-seekers in Europe and around its borders. …  Today, Europe is failing to promote and respect the rights of migrants, asylum-seekers and refugees. Hostility is widespread and mistreatment often goes unreported. As long as people on the move are invisible, they are vulnerable to abuse. Find out more at www.whenyoudontexist.eu.”

Excerpts from S.O.S. Europe Report:

WHAT IS EXTERNALIZATION?

Over the last decade, European countries have increasingly sought to prevent people from reaching Europe by boat from Africa, and have “externalized” elements of their border and immigration control. …

European externalization measures are usually based on bilateral agreements between individual countries in Europe and Africa. Many European countries have such agreements, but the majority do not publicize the details. For example, Italy has co-operation agreements in the field of “migration and security” with Egypt, Gambia, Ghana, Morocco, Niger, Nigeria, Senegal and Tunisia,2 while Spain has co-operation agreements on migration with Cape Verde, Gambia, Guinea, Guinea-Bissau, Mali and Mauritania.3

At another level, the European Union (EU) engages directly with countries in North and West Africa on migration control, using political dialogue and a variety of mechanisms and financial instruments. For example in 2010, the European Commission agreed a cooperation agenda on migration with Libya, which was suspended when conflict erupted in 2011. Since the end of the conflict, however, dialogue between the EU and Libya on migration issues has resumed.

The European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the EU (known as FRONTEX) also operates outside European territory. FRONTEX undertakes sea patrols beyond European waters in the Mediterranean Sea, and off West African coasts, including in the territorial waters of Senegal and Mauritania, where patrols are carried out in cooperation with the authorities of those countries.

The policy of externalization of border control activities has been controversial. Critics have accused the EU and some of its member states of entering into agreements or engaging in initiatives that place the rights of migrants, refugees and asylum-seekers at risk. A lack of transparency around the various agreements and activities has fuelled criticism.

This report examines some of the human rights consequences for migrants, refugees and asylum seekers that have occurred in the context of Italy’s migration agreements with Libya. It also raises concerns about serious failures in relation to rescue-at-sea operations, which require further investigation. The report is produced as part of wider work by Amnesty International to examine the human rights impacts of European externalization policies and practices.

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AGREEMENTS BETWEEN ITALY AND LIBYA

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The implementation of the agreements between Libya and Italy was suspended in practice during the first months of the conflict in Libya, although the agreements themselves were not set aside. While the armed conflict was still raging in Libya, Italy signed a memorandum of understanding with the Libyan National Transitional Council in which the two parties confirmed their commitment to co-operate in the area of irregular migration including through “the repatriation of immigrants in an irregular situation.”8 In spite of representations by Amnesty International and others on the current level of human rights abuses, on 3 April 2012 Italy signed another agreement with Libya to “curtail the flow of migrants”.9 The agreement has not been made public. A press release announced the agreement, but did not include any details on the measures that have been agreed, or anything to suggest that the present dire human rights predicament confronting migrants, refugees and asylum-seekers in Libya will be addressed.

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HUMAN RIGHTS OBLIGATION BEYOND BORDERS

Human rights and refugee law requires all states to respect and protect the rights of people within their jurisdiction: this includes people within the state’s territorial waters, and also includes a range of different contexts where individuals may be deemed to be within a certain state’s jurisdiction.

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States must also ensure that they do not enter into agreements – bilaterally or multilaterally – that would result in human rights abuses. This means states should assess all agreements to ensure that they are not based on, or likely to cause or contribute to, human rights violations. In the context of externalization, this raises serious questions about the legitimacy of European involvement – whether at a state-to-state level or through FRONTEX – in operations to intercept boats in the territorial waters of another state, when those intercepted would be at a real risk of human rights abuses.

A state cannot deploy its official resources, agents or equipment to implement actions that would constitute or lead to human rights violations, including within the territorial jurisdiction of another state.

CONCLUSION

Agreements between Italy and Libya include measures that result in serious human rights violations. Agreements between other countries in Europe and North and West Africa, and agreements and operations involving the EU and FRONTEX, also need to be examined in terms of their human rights impacts. However, with so little transparency surrounding migration control agreements and practices, scrutiny to date has been limited.

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RECOMMENDATIONS

Amnesty International urges all states to protect the rights of migrants, refugees and asylum-seekers, according to international standards, This report has focused on Italy.

THE ITALIAN GOVERNMENT SHOULD:

  • set aside its existing migration control agreements with Libya;
  • not enter into any further agreements with Libya until the latter is able to demonstrate that it respects and protects the human rights of refugees, asylum seekers and migrants and has in place a satisfactory system for assessing and recognizing claims for international protection;
  • ensure that all migration control agreements negotiated with Libya or any other countries are made public.

EUROPEAN COUNTRIES AND THE EU SHOULD:

  • ensure that their migration control policies and practices do not cause, contribute to, or benefit from human rights violations;
  • ensure their migration control agreements fully respect international and European human rights and refugee law, as well as the law of the sea; include adequate safeguards to protect human rights with appropriate implementation mechanisms; and be made public;
  • ensure their interception operations look to the safety of people in distress in interception and rescue operations and include measures that provide access to individualized assessment procedures, including the opportunity to claim asylum;
  • ensure their search-and-rescue bodies increase their capacity and co-operation in the Mediterranean Sea; publicly report on measures to reduce deaths at sea; and that Search and Rescue obligations are read and implemented in a manner that is consistent with the requirements of refugee and human rights law.”

Click here (EN), here (EN), or here (FR) for Report.

See also www.whenyoudontexist.eu

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Filed under Eastern Atlantic, European Union, Frontex, Italy, Libya, Mediterranean, Reports