On 21 June 2011, PACE adopted Resolution 1821 and Recommendation 1974 both relating to “the interception and rescue at sea of asylum seekers, refugees and irregular migrants.”
Here are extensive excerpts:
Provisional edition – The interception and rescue at sea of asylum seekers, refugees and irregular migrants – Resolution 1821 (2011)1
“1. The surveillance of Europe’s southern borders has become a regional priority. The European continent is having to cope with the relatively large-scale arrival of migratory flows by boat from Africa, reaching Europe mainly through Italy, Malta, Spain, Greece and Cyprus.
5. The Assembly notes that measures to manage these maritime arrivals raise numerous problems, of which five are particularly worrying:
5.1. Despite several relevant international instruments satisfactorily setting out the rights and obligations of states and individuals applicable in this area, interpretations of their content appear to differ. Some states do not agree on the nature and extent of their responsibilities in specific situations and some states also call into question the application of the principle of non-refoulement on the high seas;
5.2. While the absolute priority in the event of interception at sea is the swift disembarkation of those rescued to a “place of safety”, the notion of “place of safety” does not appear to be interpreted in the same way by all member states. Yet it is clear that the notion of “place of safety” should not be restricted solely to the physical protection of people, but necessarily also entails respect for their fundamental rights;
5.3. Divergences of this kind directly endanger the lives of the persons to be rescued, in particular by delaying or preventing rescue measures, and are likely to dissuade seafarers from rescuing people in distress at sea. Furthermore, they could result in a violation of the principle of non-refoulement in respect of a number of persons, including some in need of international protection;
5.4. Although the European Agency for the Management of Operational Cooperation at the External Borders of the Member states of the European Union (Frontex) plays an ever increasing role in interception at sea, the guarantees of respect for human rights and obligations arising under international and European Union law in the context of the joint operations it co-ordinates are inadequate;
5.5. Finally, these sea arrivals place a disproportionate burden on the states located on the southern borders of the European Union. The goal of responsibilities being shared more fairly and greater solidarity in the migration sphere between European states is far from being attained.
6. The situation is rendered more complex by the fact that these migratory flows are of a mixed nature and therefore call for specialised and tailored protection-sensitive responses in keeping with the status of those rescued. To respond to sea arrivals adequately and in line with the relevant international standards, the states must take account of this aspect in their migration management policies and activities.
8. Finally and above all, the Assembly reminds the member states that they have both a moral and legal obligation to save persons in distress at sea without the slightest delay, and unequivocally reiterates the interpretation given by the Office of the United Nations High Commissioner for Refugees (UNHCR), which states that the principle of non-refoulement is equally applicable on the high seas. The high seas are not an area where states are exempt from their legal obligations, including those emerging from international human rights law and international refugee law.
9. Accordingly, the Assembly calls on the member states, when conducting maritime border surveillance operations, whether in the context of preventing smuggling and trafficking in human beings or in connection with border management, be it in the exercise of de jure or de facto jurisdiction, to:
9.1. fulfil without exception and without delay their obligation to save people in distress at sea;
9.2. ensure that their border management policies and activities, including interception measures, recognise the mixed make-up of flows of individuals attempting to cross maritime borders;
9.3. guarantee for all intercepted persons humane treatment and systematic respect for their human rights, including the principle of non-refoulement, regardless of whether interception measures are implemented within their own territorial waters, those of another state on the basis of an ad hoc bilateral agreement, or on the high seas;
9.4. refrain from any practices that might be tantamount to direct or indirect refoulement, including on the high seas, in keeping with the UNHCR’s interpretation of the extraterritorial application of that principle and with the relevant judgements of the European Court of Human Rights;
9.5. carry out as a priority action the swift disembarkation of rescued persons to a “place of safety” and interpret a “place of safety” as meaning a place which can meet the immediate needs of those disembarked and in no way jeopardises their fundamental rights, since the notion of “safety” extends beyond mere protection from physical danger and must also take into account the fundamental rights dimension of the proposed place of disembarkation;
9.6. guarantee access to a fair and effective asylum procedure for those intercepted who are in need of international protection;
9.7. guarantee access to protection and assistance, including to asylum procedures, for those intercepted who are victims of human trafficking or at risk of being trafficked;
9.8. ensure that the placement in a detention facility of those intercepted – always excluding minors and vulnerable categories –, regardless of their status, is authorised by the judicial authorities and occurs only where necessary and on grounds prescribed by law, that there is no other suitable alternative and that such placement conforms to the minimum standards and principles set forth in Assembly Resolution 1707 (2010) on the detention of asylum seekers and irregular migrants in Europe;
9.9. suspend any bilateral agreements they may have concluded with third states if the human rights of those intercepted are not appropriately guaranteed therein, particularly the right of access to an asylum procedure, and wherever these might be tantamount to a violation of the principle of non-refoulement, and conclude new bilateral agreements specifically containing such human rights guarantees and measures for their regular and effective monitoring;
9.10. sign and ratify, if they have not already done so, the aforementioned relevant international instruments and take account of the Guidelines of the International Maritime Organisation (IMO) on the Treatment of Persons rescued at Sea;
9.11. sign and ratify, if they have not already done so, the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) and the so-called “Palermo Protocols” to the United Nations Convention against Transnational Organized Crime (2000);
9.12. ensure that maritime border surveillance operations and border control measures do not affect the specific protection afforded under international law to vulnerable categories such as refugees, stateless persons, women and unaccompanied children, migrants, victims of trafficking or at risk of being trafficked, or victims of torture and trauma.
10. The Assembly is concerned about the lack of clarity regarding the respective responsibilities of European Union states and Frontex and the absence of adequate guarantees for the respect of fundamental rights and international standards in the framework of joint operations co-ordinated by that agency. While the Assembly welcomes the proposals presented by the European Commission to amend the rules governing that agency, with a view to strengthening guarantees of full respect for fundamental rights, it considers them inadequate and would like the European Parliament to be entrusted with the democratic supervision of the agency’s activities, particularly where respect for fundamental rights is concerned.
Provisional edition – The interception and rescue at sea of asylum seekers, refugees and irregular migrants – Recommendation 1974 (2011)1
4. [***] the Assembly reminds the Committee of Ministers of its dual responsibility: to support those member states that are in need, but also to make sure that all human rights obligations are complied with in the context of the interception and rescue at sea of asylum seekers, refugees and irregular migrants, including by guaranteeing to those intercepted access to a fair and efficient asylum procedure.
5. The Assembly therefore calls on the Committee of Ministers to:
5.1. include in the training material all necessary elements to enable the trained persons to proceed to a screening assessment of the international protection needs of intercepted persons and to ensure that staff involved in the operations of the European Agency for the Management of Operational Cooperation at the External Borders of the Member states of the European Union (Frontex) are trained accordingly;
5.2. define, in close co-operation with the Office of the United Nations High Commissioner for Refugees (UNHCR), guidelines and standard operating procedures, when interception and rescue at sea takes place, determining minimum administrative procedures to guarantee that those persons with international protection needs are identified and provided with the appropriate protection;
5.3. continue monitoring the situation of large-scale arrivals of irregular migrants and asylum seekers, and in particular the issue of interception and rescue at sea, including by holding extraordinary meetings on the situation, where appropriate, and use the good offices of the UNHCR with its representative at the Council of Europe, where relevant.”
Click here for full text of Resolution 1821 (2011).
Click here for full text of Recommendation 1974 (2011).
Click here for speech by Tineke Strik (Netherlands, SOC) presenting the Resolution. (Scroll down page for the English text of speech.)