A new article by Matteo Tondini, Ph.D., “The legality of intercepting boat people under search and rescue and border control operations with reference to recent Italian interventions in the Mediterranean Sea and the ECtHR decision in the Hirsi case”, has been published in Vol. 18 of the Journal of International Maritime Law (subscription required).
Here is the abstract: “This article briefly addresses the legal grounds for the interception of boat people on the high seas by military vessels, taking into account the Italian Navy’s [experience] on the matter. If interceptions are conducted within the framework of an `extraterritorial’ border control operation, their legality is hardly sustainable. Conversely, when interventions are implemented as search and rescue (SAR) operations, their legal basis is much wider, provided that intervening states’ obligations under the SAR legal regime are coupled with those stemming from the prohibition of refoulement under international refugee law. As a result, rescued migrants can only be disembarked to `safe third countries’, namely countries in which they do not run the real risk of being persecuted or returned to other countries `at risk’. According to some very recent international and national jurisprudence, including the European Court of Human Rights’ decision in the Hirsi, before disembarking migrants, intervening states should in principle carry out a positive assessment on the functionality of the recipient country’s asylum system. In order to assess clearly the legality per se of interceptions, this article supports the necessity of applying a prevalence criterion, according to which if the SAR character prevails over the objective of preventing irregular migration, the intervention in question should be considered an authentic and lawful salvage operation.”
Also of note by the same author is his October 2010 paper, “Fishers of Men? The Interception of Migrants in the Mediterranean Sea and Their Forced Return to Libya.”
A final report prepared as part of the INEX Work Package 3 “Value Dilemmas of Security Professionals” has just been released. The Report is entitled “Ethical Security in Europe? Empirical Findings on Value Shifts and Dilemmas across European Internal-External Security Policies.” The report’s authors are Dr. Matteo Tondini and Dr. Isabelle Ioannides. The report contains extensive empirical findings and policy recommendations that are based primarily on two case studies: “the recent interception of migrants in the Central Mediterranean Sea undertaken by the Italian authorities” and “the implementation of anti-terrorism/radicalisation measures in the Netherlands and the UK.”
The report contains a significant amount of information which will be of interest to anyone concerned with migrant interdiction practices in the Mediterranean (and elsewhere). I will try to post a few summaries of some portions of the report in the coming days, but in the meantime I wanted to call attention to an interview that was conducted in May of this year by Dr. Tondini with Frontex Executive Director Ilkka Laitinen as part of the research project. A transcript of the interview is included in the report. [INEX Laitinen Interview 12May2010]
In the interview Mr Laitinen said that contrary to the information contained in the Human Rights Watch Report of 21 September 2009, Frontex had no involvement in the 18/19 June 2009 incident where Italian and Libyan authorities jointly intercepted and returned a group of migrants to Libya. He noted that the recent agreements between Libya and Italy had closed the central Mediterranean migration route and that it is therefore now “the right moment for the Agency to intervene, with the aim of consolidating the results achieved so far … The only way of doing this is to cooperate with neighbouring countries such as Libya.” And while Mr Laitinen stated that the “respect of fundamental rights is a crucial part of the European border control service” he also stated that “the right of boat people to claim asylum or other forms of protection outside [Member States’] territorial waters is not yet acknowledged Europe-wide.” In response to this latter point, Dr. Tondini pointed out that it is the position of the Italian government that if an asylum claim is made on board an Italian vessel, the asylum seeker is supposed to be transported to Italy for the purpose of making a formal claim.
(Thank you to Matteo Tondini for sharing the Report.)
Click here for the final Report.
Click on this link- INEX Laitinen Interview 12May2010 -for the transcript of the Interview.
A new legal paper by Dr Matteo Tondini entitled “Fishers of Men? The Interception of Migrants in the Mediterranean Sea and Their Forced Return to Libya” is available. This paper should be read by anyone with any interest in Italy’s current push-back practice with Libya. Dr Tondini is currently a post-doctoral researcher at the Vrije Universiteit Amsterdam – Faculty of Social Sciences – Department of Governance Studies. The paper has been produced as part of the INEX Project, financed by the EC under the FP7 (http://www.inexproject.eu).
The paper refers to some unpublished material and interviews. Here is the abstract:
“This paper presents an extensive account and assesses the legality of the recent naval constabulary operations – undertaken by Italian and Libyan military vessels – in the central Mediterranean Sea, aimed at intercepting boat people in international waters and returning them to the Northern African coasts. If considered as a border control operation, the interception of migrants and their debarkation in a third country often lacks a valid legal basis. The latter is easier to be found under maritime law, by ‘labelling’ interceptions as rescue missions. Nevertheless, such operations must be conducted according to state obligations under human rights law and refugee law (especially the non-refoulement rule), which only allow Italian vessels to disembark boat people to a ‘safe third country’. The paper concludes that since Libya cannot be considered a ‘safe third country’ in this sense, the interception of migrants on the high seas and their forced return to Tripoli may entail violations of maritime, human rights, migration and refugee law at both an international, European and domestic level.”
Click here or here to access the paper.
(Thank you to Dr Tondini for bringing this paper to my attention.)