Italian Interior Minister Angelino Alfano reported that 24,277 migrants have landed in Italy from 1 August 2012 to 10 August 2013. 8,932 persons have landed in the past 40 days – 1st July until 10th August 2013.
Tag Archives: Rescue at Sea
The Italian news agency AGI reported that Italian search and rescue authorities yesterday diverted two commercial ships, the Patroclus, a Maltese oil tanker, and the Cdry White, an Italian cargo ship, to assist with the rescue of two groups of migrants. The first group of approximately 76 migrants was rescued about 40 miles from Tripoli by an Italian coastguard vessel; the group was then transferred to the Cdry White. The Patroclus appears to have directly rescued a group of approximately 97 migrants south of Lampedusa. AGI reported that the two commercial ships are sailing to Trapani and Pozzallo in Sicily to disembark the rescued migrants.
Italy Conducted De Facto Push-Back of Migrants By Ordering Cargo Ship to Rescue and Transport Migrants to Libya
Just over a week ago Italian search and rescue authorities directed two commercial ships, an oil tanker and a cargo ship, to rescue two groups of migrants in distress off the Libyan coast. After taking the migrants on board, both ships were ordered to transport the migrants to Libya. One ship’s captain complied with the order and 96 migrants were turned over to Libyan authorities; the other captain refused and a several day stand-off between Malta and Italy resulted before Italy agreed to allow the migrants to be disembarked on Italian territory (see Malta Today: Malta blocks rescue ship from entering Malta waters; Malta orders ship to sail to Libya; Conditions on rescue ship worsen).
The incident involving the two ships was by no means rare and what transpired raises a host of important issue. It is obviously good that one ship was permitted to disembark the rescued migrants on Italian territory. But what transpired with the second ship that returned the rescued migrants to Libya is extremely problematic and amounted to a push-back. Neither Italy nor Malta should be able to evade their responsibilities to consider asylum claims by ordering commercial ships to engage in rescue operations and then issuing orders to those commercial ships to return potential asylum seekers to a country such as Libya which is not a signatory to the Refugee Convention.
I copy below my recent commentary from Malta Today:
Was the captain of the Salamis right?
We asked Prof. Niels Frenzen about the legal implications of commercial ships effecting the rescue of migrants at sea on behalf of coastal states.
One week ago Italian search and rescue authorities directed two commercial ships, the Liberian-flagged oil tanker Salamis and the Turkish cargo ship Adakent, to divert from their courses to rescue two groups of migrants in distress off the Libyan coast. Rescues like this take place almost daily, though most are conducted by national armed forces or coastguards. Rescue operations conducted by commercial vessels raise different legal issues, one of the most important and problematic being where are the rescued persons to be disembarked.
And while disputes periodically arise between Italy and Malta when patrol boats belonging to the armed forces of one country have sought to disembark rescued persons in the other country – usually due to disagreement as to where the closest safe port is located in relation to the place of rescue – at the end of the day if the stand-off is not resolved, an AFM or Guardia di Finanza patrol boat is always able to disembark rescued survivors in their respective home ports. This is not the case when commercial ships rescue survivors as was demonstrated by Malta’s decision not to permit the Salamis to enter Maltese waters for the purpose of disembarking the 102 rescued migrants.
Some government officials characterised the initial decision of the captain of the Salamis to attempt to disembark the rescued migrants in Malta as a violation of international law. Such an assertion is inaccurate and fails to take into consideration the complicated framework of different international laws – search and rescue, human rights, and refugee – which come in to play when migrants are rescued or otherwise encountered in international waters, particularly when it is likely that there are asylum seekers or other persons in need of protection among the rescued persons.
While Malta’s decision to bar the Salamis attracted significantly more international media attention than the events pertaining to the Adakent, these two incidents and the different resolutions highlight important legal issues. After the two ships rescued and took on board the different groups of migrants, Italian authorities instructed both ships to disembark the rescued migrants in Libya because the migrants had departed from Libya. The Adakent sailed to Tripoli – its planned destination before the rescue – and turned 96 rescued migrants over to Libyan authorities. The captain of the Salamis disregarded Italy and Malta’s orders to sail to Libya and continued to sail towards Malta – its planned destination before the rescue.
Both ship captains properly carried out their clear legal obligation under international law to rescue the stranded migrants. The more difficult legal question is where should the rescued persons be taken once rescue operations are completed. While international law does not explicitly answer the question, it does impose the obligation on a ship’s captain to disembark persons only in “a place of safety.” Since the 102 migrants rescued by the Salamis included Eritreans and Ethiopians it is clear that many of them were asylum seekers and therefore the captain was legally obligated to ignore the Italian and Maltese orders that the migrants be returned to Libya.
Assuming some or all of the 96 migrants rescued by the Adakent were also asylum seekers, the Adakent’s captain likewise should have disregarded Italian instructions to return the migrants to Libya. Both the UNHCR and the International Maritime Organization (IMO) have issued guidelines to ship captains addressing the situations faced by the Salamis and Adakent. The guidelines are based on the Search and Rescue Convention and the Refugee Convention and provide that if there is some reason to believe that a rescued person is an asylum seeker, the captain is obligated to take that fact into consideration when making a decision as to where to disembark the survivor.
Malta and Italy are well aware that many if not most migrants departing Libya by boat are asylum seekers and are also aware that many of the asylum claims will be granted if the asylum seeker is successful in lodging an application. Had these two rescues been carried out by AFM or Guardia di Finanza patrol boats rather than the two commercial ships, the patrol boats would have been under a clear legal obligation to disembark the rescued migrants in a location where asylum or other claims for international protection could be properly considered.
The 2012 decision in the Hirsi v Italy case by the European Court of Human Rights condemned the Italian push-back practice which resulted in asylum seekers being returned to Libya without being given an opportunity to make asylum claims. Neither Italy nor Malta can evade their responsibilities to consider asylum claims by diverting commercial ships to engage in rescue operations and then issuing orders to those commercial ships to return potential asylum seekers to a country such as Libya which is not a signatory to the Refugee Convention and does not provide an adequate alternate procedure to consider claims for protection.
There can be honest disagreement about where rescued migrants are to be disembarked as long as the survivors will be safe and protected when disembarked. The Search and Rescue Convention obligates countries to coordinate and cooperate among themselves to permit rescuing ships to disembark rescued persons. Malta and Italy as sovereign countries have the right to control their borders, but this sovereign power has to be applied in manner that is consistent with international human rights and refugee law by which they have agreed to be bound.
EU Court of Justice Annuls Frontex Sea Borders Rule – EU Parliamentary Approval Required (28.11.2012 update)
[UPDATE 28 November 2012: The European Commission intends to present a legislative proposal in early 2013 to replace the annulled Frontex sea border operations rule (Council Decision 2010/252/EU). See EC’s “Second biannual report on the functioning of the Schengen area” covering the period 1 May 2012-31 October 2012. (COM(2012) 686 final, 23.11.2012)]
The EU Court of Justice, Grand Chamber, issued a judgment on 5 September 2012 annulling Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [Frontex] (OJ 2010 L 111, p. 20), i.e. the Frontex Sea Borders Rule. ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April 2012 recommending that the Court annul the Rule.
The Court concluded that the provisions of the contested rule were not minor, non-essential provisions, but instead “constitute[d] a major [new] development in the [Schengen Borders Code] system” and which therefore required the consideration and approval of the European Parliament.
The Court stated that the Schengen Borders Code (“SBC”) as it currently stands “does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended….” The contested rule “lays down the measures which border guards may take against ships [authorising] ships to be stopped, boarded, searched and seized…” The contested rule “lays down rules on the disembarkation of the persons intercepted or rescued …stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.”
The Court said the adoption of such rules conferring “enforcement powers on border guards …entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.”
The Court also noted that “the powers conferred in the contested [rule] mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.”
For these reasons the Court decided that the “contested [rule] must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.”
The Court ordered “the effects of the contested [rule] [to] be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.”
Extensive Excerpts from Judgment:
THE COURT (Grand Chamber), composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and A. Prechal, Presidents of Chambers, R. Silva de Lapuerta, K. Schiemann, E. Juhász, G. Arestis, T. von Danwitz (Rapporteur), M. Berger and E. Jarašiūnas, Judges,
Advocate General: P. Mengozzi,
having regard to the written procedure and further to the hearing on 25 January 2012, after hearing the Opinion of the Advocate General at the sitting on 17 April 2012, gives the following Judgment
1. By its action, the European Parliament seeks the annulment of Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [FRONTEX] (OJ 2010 L 111, p. 20, ‘the contested decision’).
2. [***] The Parliament submits that the provisions of the contested decision ought to have been adopted by the ordinary legislative procedure and not by the comitology procedure based on Article 12(5) of the SBC [Schengen Borders Code].
I – Legal context
A – Decision 1999/468/EC
B – The SBC
C – Regulation (EC) No 2007/2004
D – The contested decision
II – Forms of order sought by the parties and the procedure before the Court
30. The Parliament claims that the Court should:
– annul the contested decision;
– order that the effects of the contested decision be maintained until it is replaced, …
31. The Council contends that the Court should:
– dismiss the Parliament’s action as inadmissible;
– in the alternative, dismiss the action as unfounded, …
32.[***] the Commission was granted leave to intervene in support of the form of order sought by the Council and, in its statement in intervention, it requests the Court to dismiss the Parliament’s action …..
III – The action
A – The admissibility of the action
41. It follows from the above that the action for annulment must be declared to be admissible.
B – Substance
1. Arguments of the parties
(a) As regards the principles governing the implementing powers
43. The Parliament submits that the regulatory procedure with scrutiny can have as its subject-matter the modification or removal of non-essential elements of a basic instrument or the addition of new non-essential elements, but not the modification of the essential elements of such an instrument. [***]
46. The Commission contends that [it has] the power to put flesh on the bones of the essential elements which the co‑legislators have chosen not to detail in extenso . It is authorised to supplement those elements and to regulate new activities within the scope of the essential subject-matter and of the essential rules.
(b) As regards the contested decision
47. Although the Parliament does not challenge the objectives of the contested decision, it takes the view that its content ought to have been adopted by means of a legislative act and not by an implementing measure. That decision goes beyond the scope of the implementing powers referred to in Article 12(5) of the SBC because it introduces new essential elements into that code and alters essential elements of the SBC as well as the content of the Frontex Regulation.
(i) Introduction of new essential elements into the SBC
48. As regards the introduction of new essential elements into the SBC, the Parliament submits that Parts I and II to the Annex of the contested decision lay down measures which cannot be considered to be within the scope of border surveillance as defined by the SBC or to be a non‑essential element of that code.
49. Thus, …, paragraph 2.4 of Part I to the Annex of the contested decision does not merely lay down detailed practical rules of border surveillance but grants border guards far‑reaching powers. The SBC is silent as to the measures which might be taken against persons or ships. However, the contested decision lays down far-reaching enforcement measures, yet does not ensure the right of persons intercepted on the high seas to claim asylum and associated rights, whereas, in accordance with Article 13 of the SBC, returning the persons concerned to the country from where they came can only arise in the context of a formal refusal of entry.
50. In addition, the rules relating to activities such as search and rescue and disembarkation in Part II to the Annex of the contested decision do not, in the Parliament’s view, fall within the concept of surveillance. Even though the title of Part II contains the word ‘guidelines’, Part II is binding and is intended to produce legal effects as against Member States which participate in an operation coordinated by the Agency, due to its wording, the fact that it is contained in a legally binding instrument, and the fact that it forms part of an operational plan provided for by the Frontex Regulation. The contested decision thus contains essential elements of the SBC and could not therefore be regulated in an implementing measure.
51. In addition, the Parliament submits that the contested decision exceeds the territorial scope of the SBC . In accordance with Article 2(11) of the SBC, surveillance is limited to the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, whereas, in accordance with paragraph 2.5 of Part I to its Annex, the contested decision applies not only to territorial waters, but also to contiguous zones and to the high seas.
53. [***] The Council contends that the argument alleging an extension of the territorial scope of the SBC is unfounded, since that code does not define the concept of a sea border, which must be understood as applying also to border surveillance carried out in the contiguous zones as well as on the high seas.
54. [***] Admittedly, helping ships in distress is not a surveillance measure in the narrow sense. However, if such a situation were to occur during a surveillance operation coordinated by the Agency, it would be indispensable to coordinate in advance how the search and rescue was conducted by various participating Member States. In those circumstances, the Council takes the view that the contested decision does not introduce new elements into the SBC.
55. The Commission contends that border surveillance is an essential element of the SBC, but that the essential rules governing that matter are found in Article 12 of the SBC which lays down provisions regarding the content as well as the object and purpose of the surveillance without serving to regulate that surveillance extensively and exhaustively. The co-legislators conferred on the Commission the power to supplement those essential elements. The power to regulate new activities allows the Commission to regulate the content of border surveillance and to define what that activity entails.
56. The Commission contends that the contested decision does not introduce new essential elements into the SBC. Surveillance must, in the light of its purpose, not only encompass the detection of attempts to gain illegal entry into the European Union but also extend to positive steps such as intercepting ships which are suspected of trying to gain entry to the Union without submitting to border checks. Article 12(4) of the SBC specifically mentions one of the purposes of surveillance as being to apprehend individuals. In order to assess whether ‘search and rescue’ falls within the concept of surveillance, it is important to take into consideration the factual circumstances in which attempted illegal entries arise. In many instances, the surveillance operation will prompt the search and rescue situation, and it is not possible to draw a sharp distinction between those operations. The issue of whether or not the guidelines are binding does not arise, given that the measures which they lay down fall within the concept of surveillance.
(ii) Modification of essential elements of the SBC
57. As regards the modification of the essential elements of the SBC, the Parliament contends, in particular, that the contested decision alters Article 13 of the Code. Since that article applies to any form of interception, persons who have entered illegally into the territorial waters and contiguous zones cannot be forced back or asked to leave without a decision pursuant to Article 13 of the SBC. However, paragraph 2.4 of Part I to the Annex of the contested decision confers on border guards the power to order the ship to modify its course outside of the territorial waters, without a decision within the meaning of Article 13 being taken or without the persons concerned having the possibility to challenge the refusal of entry.
58. In that connection, the Council and the Commission contend that Article 13 of the SBC does not apply to border surveillance activities so that the contested decision does not amend that article.
(iii) Amendment of the Frontex Regulation
59. As regards the amendment of the Frontex Regulation, the Parliament contends that Article 12(5) of the SBC does not grant the Commission the power to lay down rules which amend the powers and obligations set out by the Frontex Regulation for the operations co-ordinated by the Agency. The contested decision is not the appropriate legal instrument for creating obligations in relation to those operations or for modifying the provisions of the Frontex Regulation.
60. However, the contested decision is intended to apply only within the context of operations coordinated by the Agency and is obligatory not only for the Member States but also for the Agency, in light of the fact that its Annex forms part of the operational plan for each operation, whilst Article 8e of the Frontex Regulation determines the main elements of that plan. The mandatory inclusion in the operational plan of the rules and guidelines set out in the Annex of the contested decision significantly amends the list of necessary elements for the implementation of that plan, such as the roles of border guards, the participating units and the Rescue Coordination Centre, respectively.
61. In that connection, the Council contends that the contested decision does not amend the tasks of the Agency, even though the Annex of that decision forms part of the operational plan. [***]
62. According to the Commission, the contested decision does not affect the operation of the Frontex Regulation. The requirement in Article 1 of the contested decision that both Parts to the Annex are to be part of the operational plan imposes a requirement not upon the Agency, but rather the Member States as the persons to whom that decision is addressed and responsible for ensuring that the Annex forms part of that plan. In those circumstances, the contested decision does not amend the Frontex Regulation.
2. Findings of the Court
69. As to whether the Council was empowered to adopt the contested decision as a measure implementing Article 12 of the SBC on border surveillance, on the basis of Article 12(5) of that code, it is first of all necessary to assess the meaning of that article.
73. Although the SBC, which is the basic legislation in the matter, states in Article 12(4) thereof, that the aim of such [border] surveillance is to apprehend individuals crossing the border illegally, it does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended and subsequently – such as the application of enforcement measures, the use of force or conducting the persons apprehended to a specific location – or even measures against persons implicated in human trafficking.
74. That said, paragraph 2.4 of Part I to the Annex of the contested decision lays down the measures which border guards may take against ships detected and persons on board. In that connection, paragraph 2.4 (b), (d), (f) and (g) allows, inter alia, ships to be stopped, boarded, searched and seized, the persons on board to be searched and stopped, the ship or persons on board to be conducted to another Member State, and thus enforcement measures to be taken against persons and ships which could be subject to the sovereignty of the State whose flag they are flying.
75. In addition, paragraph 1.1 of Part II to the Annex of the contested decision lays down, inter alia, the obligation of the units participating in sea external border operations coordinated by the Agency to provide assistance to any vessel or person in distress at sea. Paragraph 2 of Part II lays down rules on the disembarkation of the persons intercepted or rescued, the second subparagraph of paragraph 2.1 stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.
76. First, the adoption of rules on the conferral of enforcement powers on border guards, referred to in paragraphs 74 and 75 above, entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.
77. Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.
78. Thus, the adoption of provisions such as those laid down in paragraph 2.4 of Part I, and paragraphs 1.1 and 2.1 of Part II, of the Annex to the contested decision, requires political choices to be made as referred to in paragraphs 76 and 77 above. Accordingly, the adoption of such provisions goes beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC and, in the context of the European Union’s institutional system, is a matter for the legislature.
79. In those circumstances, it must be found that, as the Advocate General observed in points 61 and 66 of his Opinion, Parts I and II to the Annex of the contested decision contain essential elements of external maritime border surveillance.
80. The mere fact that the title of Part II to the Annex of the contested decision contains the word ‘guidelines’ and that the second sentence of Article 1 of that decision states that the rules and guidelines in Part II are ‘non-binding’ cannot affect their classification as essential rules.
84. In those circumstances, the contested decision must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.
85. Consequently, the Parliament’s arguments to the effect that the contested decision amends the essential elements of the SBC and also the Frontex Regulation do not require to be examined.
IV – The application for the effects of the contested decision to be maintained
86. The Parliament requests the Court, should it annul the contested decision, to maintain its effects, pursuant to the second paragraph of Article 264 TFEU, until that decision is replaced.
87. The Parliament submits that it is necessary to maintain the effects of the contested decision, in the light of the importance of the objectives of the proposed measures in the context of the European Union’s policy on border control operations.
89. The annulment of the contested decision without maintaining its effects on a provisional basis could compromise the smooth functioning of the current and future operations coordinated by the Agency and, consequently, the surveillance of the sea external borders of the Member States.
90. In those circumstances, there are important grounds of legal certainty which justify the Court exercising the power conferred on it by the second paragraph of Article 264 TFEU. In the present case, the effects of the contested decision must be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.
V – Costs
On those grounds, the Court (Grand Chamber) hereby:
1. Annuls Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;
2. Maintains the effects of decision 2010/252 until the entry into force of new rules within a reasonable time;
3. Orders the Council of the European Union to pay the costs;
4. Orders the European Commission to bear its own costs.
Human Rights Watch released a briefing paper on 16 August entitled “Hidden Emergency-Migrant deaths in the Mediterranean.” The briefing paper, written by Judith Sunderland, a senior researcher with HRW, reviews recent events in the Mediterranean, provides updates on new developments, including the EUROSUR proposal and IMO guidelines that are under consideration, and makes recommendations for how deaths can be minimized.
Excerpts from the Briefing Paper:
“The death toll during the first six months of 2012 has reached at least 170. … Unless more is done, it is certain that more will die.
Europe has a responsibility to make sure that preventing deaths at sea is at the heart of a coordinated European-wide approach to boat migration, not a self-serving afterthought to policies focused on preventing arrivals or another maneuver by northern member states to shift the burden to southern member states like Italy and Malta.
With admirable candor, EU Commissioner Cecilia Malmström said recently that Europe had, in its reaction to the Arab Spring, ‘missed the opportunity to show the EU is ready to defend, to stand up, and to help.’ Immediate, concerted efforts to prevent deaths at sea must be part of rectifying what Malmström called Europe’s ‘historic mistake.’
Europe’s Response to Boat Migration
European countries most affected by boat migration—Italy, Malta, Greece and Spain—have saved many lives through rescue operations. But those governments and the European Union as a whole have focused far more effort on seeking to prevent boat migration, including in ways that violate rights. Cooperation agreements with countries of departure for joint maritime patrols, technical and financial assistance for border and immigration control, and expedited readmission of those who manage to set foot on European soil have become commonplace.
The EU’s border agency Frontex has become increasingly active through joint maritime operations, some of which have involved coordination with countries of departure outside the EU such as Senegal. Even though in September 2011 the EU gave Frontex an explicit duty to respect human rights in its operations and a role in supporting rescue at sea operations, these operations have as a primary objective to prevent boats from landing on EU member state territories. This has also prevented migrants, including asylum seekers, from availing themselves of procedural rights that apply within EU territory.
Italy had suspended its cooperation agreements with Libya in February 2011, and has indicated it will respect the European Court’s ruling and will no longer engage in push-backs. However, past experience suggests that an immigration cooperation agreement signed with the Libyan authorities in April 2012, the exact contents of which have neither been made public nor submitted to parliamentary scrutiny, is unlikely to give migrants’ human rights the attention and focus they need if those rights are to be properly protected.
Preventing Deaths in the Mediterranean
It may be tempting to blame lives lost at sea on unscrupulous smugglers, the weather, or simple, cruel fate. However, many deaths can and should be prevented. UNHCR’s recommendation during the Arab Spring to presume that all overcrowded migrant boats in the Mediterranean need rescue is a good place to start.
Recognizing the serious dimensions of the problem, specialized United Nations agencies such as the UNHCR and the International Maritime Organization (IMO), have been working to produce clear recommendations. These include establishing a model framework for cooperation in rescue at sea and standard operating procedures for shipmasters. The latter should include a definition of distress triggering the obligation to provide assistance that takes into account risk factors, such as overcrowding, poor conditions on board, and lack of necessary equipment or expertise. UNHCR has also proposed that countries with refugee resettlement programs set aside a quota for recognized refugees rescued at sea.
The IMO has also been pursuing since 2010 a regional agreement among Mediterranean European countries to improve rescue and disembarkation coordination, as well as burden-sharing. The project, if implemented successfully, would serve as a model for other regions. A draft text for a memorandum of understanding is under discussion. Negotiations should be fast-tracked with a view to implementation as quickly as possible.
If Europe is serious about saving lives at sea, it also needs to amend the draft legislation creating EUROSUR. This new coordinated surveillance system should spell out clearly the paramount duty to assist boat migrants at sea, and its implementation must be subject to rigorous and impartial monitoring. Arguments that such a focus would create a ‘pull factor’ and encourage more migrants to risk the crossing are spurious. History shows that people on the move, whether for economic or political reasons, are rarely deterred or encouraged by external factors.
From the HRW press statement:
The “briefing paper includes concrete recommendations to improve rescue operations and save lives:
- Improve search and rescue coordination mechanisms among EU member states;
- Ensure that EUROSUR has clear guidelines on the paramount duty of rescue at sea and that its implementation is rigorously monitored;
- Clarify what constitutes a distress situation, to create a presumption in favor of rescue for overcrowded and ill-equipped boats;
- Resolve disputes about disembarkation points;
- Remove disincentives for commercial and private vessels to conduct rescues; and
- Increase burden-sharing among EU member states.”
Click here for HRW press statement.
400 Migrants Reach Lampedusa Over Past Weekend; Detention Centre Over Capacity; Former Interior Minister Maroni Calls for Resumption of Italy’s Push-Back Practice
Two large migrant boats reached Lampedusa over the past weekend. One of the boats was carrying about 250 persons, believed to be Sub-Saharan Africans, and is thought to have departed from Libya. The boat was a 15 meter wooden fishing vessel and appears to be one of the first non-inflatable boats used in many months. A second boat carrying about 125 Tunisians arrived around the same time. Smaller boats carrying mostly Tunisians have been steadily reaching Lampedusa in recent weeks. In response to the apparent increase in the numbers of persons reaching Lampedusa, former Italian Interior Minister Roberto Maroni (Northern League) wrote on his Facebook page and called for a resumption of Italy’s Push-Back practice to halt new boats. (“Tornano i barconi a Lampedusa. RESPINGIMENTI, come facevo io, questo serve per fermare l’invasione.”) Given the decision in the Hirsi case by the European Court of Human Rights, Italy is not likely to resume the push-back practice. 81 Sub-Saharan migrants on a disabled boat were rescued by Italian authorities on Monday. The detention centre on Lampedusa is over its 350 person capacity and Italian authorities have begun to transfer migrants to facilities elsewhere.
A rescue operation that began last week off Malta was successful in saving 158 persons on board two separate migrant boats. Six persons died. Two fell into the sea and were lost while being transferred from their boat to a passing merchant ship, the Victoria VI. Two died on board the migrant boat before the rescue. And two died after the rescue. The 68 survivors were rescued by the Victoria VI on 14 August. They were then transferred to AFM vessels and taken to Malta. An AFM patrol boat rescued 90 other migrants from a second boat on 15 August. The migrants are reportedly from Somalia and Eritrea.
A third boat carrying 77 migrants was rescued yesterday, 20 August, by the AFM.
Pictures below from 20 August 2012 rescue.
Heinrich Böll Foundation Study: Borderline- The EU’s New Border Surveillance Initiatives, Assessing the Costs and Fundamental Rights Implications of EUROSUR and the ‘Smart Borders’ Proposals
The Heinrich Böll Foundation released a study written by Dr. Ben Hayes from Statewatch and Mathias Vermeulen (editor of The Lift- Legal Issues in the Fight Against Terrorism blog) entitled “Borderline – The EU’s new border surveillance initiatives: assessing the costs and fundamental rights implications of EUROSUR and the ‘Smart Borders’ Proposals.” The Study was presented to the European Parliament last month. As Mathias Vermeulen noted in an email distributing the study, “the European Parliament is currently negotiating the legislative proposal for Eurosur, and the European Commission is likely to present a legislative proposal on ‘smart borders’ in September/October.”
Excerpts from the Preface and Executive Summary of the Study:
The upheavals in North Africa have lead to a short-term rise of refugees to Europe, yet, demonstrably, there has been no wave of refugees heading for Europe. By far most refugees have found shelter in neighbouring Arab countries. Nevertheless, in June 2011, the EU’s heads of state precipitately adopted EU Council Conclusions with far-reaching consequences, one that will result in new border policies ‘protecting’ the Union against migration. In addition to new rules and the re-introduction of border controls within the Schengen Area, the heads of state also insisted on upgrading the EU’s external borders using state-of-art surveillance technology, thus turning the EU into an electronic fortress.
The Conclusions passed by the representatives of EU governments aims to quickly put into place the European surveillance system EUROSUR. This is meant to enhance co-operation between Europe’s border control agencies and promote the surveillance of the EU’s external borders by FRONTEX, the Union’s agency for the protection of its external borders, using state-of-the-art surveillance technologies. To achieve this, there are even plans to deploy unmanned aerial vehicles (UAVs) over the Mediterranean and the coasts of North Africa. Such high-tech missions have the aim to spot and stop refugee vessels even before they reach Europe’s borders. A EUROSUR bill has been drafted and is presently being discussed in the European Council and in the European Parliament. [***]
EUROSUR and ‘smart borders’ represent the EU’s cynical response to the Arab Spring. Both are new forms of European border controls – new external border protection policies to shut down the influx of refugees and migrants (supplemented by internal controls within the Schengen Area); to achieve this, the home secretaries of some countries are even willing to accept an infringement of fundamental rights.
The present study by Ben Hayes and Mathias Vermeulen demonstrates that EUROSUR fosters EU policies that undermine the rights to asylum and protection. For some time, FRONTEX has been criticised for its ‘push back’ operations during which refugee vessels are being intercepted and escorted back to their ports of origin. In February 2012, the European Court of Human Rights condemned Italy for carrying out such operations, arguing that Italian border guards had returned all refugees found on an intercepted vessel back to Libya – including those with a right to asylum and international protection. As envisioned by EUROSUR, the surveillance of the Mediterranean using UAVs, satellites, and shipboard monitoring systems will make it much easier to spot such vessels. It is to be feared, that co-operation with third countries, especially in North Africa, as envisioned as part of EUROSUR, will lead to an increase of ‘push back’ operations.
Nevertheless, the EU’s announcement of EUROSUR sounds upbeat: The planned surveillance of the Mediterranean, we are being told, using UAVs, satellites, and shipboard monitoring systems, will aid in the rescue of refugees shipwrecked on the open seas. The present study reveals to what extent such statements cover up a lack of substance. Maritime rescue services are not part of EUROSUR and border guards do not share information with them, however vital this may be. Only just recently, the Council of Europe issued a report on the death of 63 migrants that starved and perished on an unseaworthy vessel, concluding that the key problem had not been to locate the vessel but ill-defined responsibilities within Europe. No one came to the aid of the refugees – and that in spite of the fact that the vessel’s position had been known. [***]
The EU’s new border control programmes not only represent a novel technological upgrade, they also show that the EU is unable to deal with migration and refugees. Of the 500,000 refugees fleeing the turmoil in North Africa, less than 5% ended up in Europe. Rather, the problem is that most refugees are concentrated in only a very few places. It is not that the EU is overtaxed by the problem; it is local structures on Lampedusa, in Greece’s Evros region, and on Malta that have to bear the brunt of the burden. This can hardly be resolved by labelling migration as a novel threat and using military surveillance technology to seal borders. For years, instead of receiving refugees, the German government along with other EU countries has blocked a review of the Dublin Regulation in the European Council. For the foreseeable future, refugees and migrants are to remain in the countries that are their first point of entry into the Union.
Within the EU, the hostile stance against migrants has reached levels that threaten the rescue of shipwrecked refugees. During FRONTEX operations, shipwrecked refugees will not be brought to the nearest port – although this is what international law stipulates – instead they will be landed in a port of the member country that is in charge of the operation. This reflects a ’nimby’ attitude – not in my backyard. This is precisely the reason for the lack of responsibility in European maritime rescue operations pointed out by the Council of Europe. As long as member states are unwilling to show more solidarity and greater humanity, EUROSUR will do nothing to change the status quo.
The way forward would be to introduce improved, Europe-wide standards for the granting of asylum. The relevant EU guidelines are presently under review, albeit with the proviso that the cost of new regulations may not exceed the cost of those in place – and that they may not cause a relative rise in the number of asylum requests. In a rather cynical move, the EU’s heads of government introduced this proviso in exactly the same resolution that calls for the rapid introduction of new surveillance measures costing billions. Correspondingly, the budget of the European Asylum Support Office (EASO) is small – only a ninth what goes towards FRONTEX.
Unable to tackle the root of the problem, the member states are upgrading the Union’s external borders. Such a highly parochial approach taken to a massive scale threatens some of the EU’s fundamental values – under the pretence that one’s own interests are at stake. Such an approach borders on the inhumane.
Berlin/Brussels, May 2012
Member of the European Parliament
The research paper ‘Borderline’ examines two new EU border surveillance initiatives: the creation of a European External Border Surveillance System (EUROSUR) and the creation of the so-called ‘smart borders package’…. EUROSUR promises increased surveillance of the EU’s sea and land borders using a vast array of new technologies, including drones (unmanned aerial vehicles), off-shore sensors, and satellite tracking systems. [***]
The EU’s 2008 proposals gained new momentum with the perceived ‘migration crisis’ that accompanied the ‘Arab Spring’ of 2011, which resulted in the arrival of thousands of Tunisians in France. These proposals are now entering a decisive phase. The European Parliament and the Council have just started negotiating the legislative proposal for the EUROSUR system, and within months the Commission is expected to issue formal proposals for the establishment of an [Entry-Exit System] and [Registered Traveller Programme]. [***]
The report is also critical of the decision-making process. Whereas the decision to establish comparable EU systems such as EUROPOL and FRONTEX were at least discussed in the European and national parliaments, and by civil society, in the case of EUROSUR – and to a lesser extent the smart borders initiative – this method has been substituted for a technocratic process that has allowed for the development of the system and substantial public expenditure to occur well in advance of the legislation now on the table. Following five years of technical development, the European Commission expects to adopt the legal framework and have the EUROSUR system up and running (albeit in beta form) in the same year (2013), presenting the European Parliament with an effective fait accomplit.
The EUROSUR system
The main purpose of EUROSUR is to improve the ‘situational awareness’ and reaction capability of the member states and FRONTEX to prevent irregular migration and cross-border crime at the EU’s external land and maritime borders. In practical terms, the proposed Regulation would extend the obligations on Schengen states to conducting comprehensive ‘24/7’ surveillance of land and sea borders designated as high-risk – in terms of unauthorised migration – and mandate FRONTEX to carry out surveillance of the open seas beyond EU territory and the coasts and ports of northern Africa. Increased situational awareness of the high seas should force EU member states to take adequate steps to locate and rescue persons in distress at sea in accordance with the international law of the sea. The Commission has repeatedly stressed EUROSUR’s future role in ‘protecting and saving lives of migrants’, but nowhere in the proposed Regulation and numerous assessments, studies, and R&D projects is it defined how exactly this will be done, nor are there any procedures laid out for what should be done with the ‘rescued’. In this context, and despite the humanitarian crisis in the Mediterranean among migrants and refugees bound for Europe, EUROSUR is more likely to be used alongside the long-standing European policy of preventing these people reaching EU territory (including so-called push back operations, where migrant boats are taken back to the state of departure) rather than as a genuine life-saving tool.
The EUROSUR system relies on a host of new surveillance technologies and the interlinking of 24 different national surveillance systems and coordination centers, bilaterally and through FRONTEX. Despite the high-tech claims, however, the planned EUROSUR system has not been subject to a proper technological risk assessment. The development of new technologies and the process of interlinking 24 different national surveillance systems and coordination centres – bilaterally and through FRONTEX – is both extremely complex and extremely costly, yet the only people who have been asked if they think it will work are FRONTEX and the companies selling the hardware and software. The European Commission estimates that EUROSUR will cost €338 million, but its methods do not stand up to scrutiny. Based on recent expenditure from the EU External Borders Fund, the framework research programme, and indicative budgets for the planned Internal Security Fund (which will support the implementation of the EU’s Internal Security Strategy from 2014–2020), it appears that EUROSUR could easily end up costing two or three times more: as much as €874 million. Without a cap on what can be spent attached to the draft EUROSUR or Internal Security Fund legislation, the European Parliament will be powerless to prevent any cost overruns. There is no single mechanism for financial accountability beyond the periodic reports submitted by the Commission and FRONTEX, and since the project is being funded from various EU budget lines, it is already very difficult to monitor what has actually been spent.
In its legislative proposal, the European Commission argues that EUROSUR will only process personal data on an ‘exceptional’ basis, with the result that minimal attention is being paid to privacy and data protection issues. The report argues that the use of drones and high-resolution cameras means that much more personal data is likely to be collected and processed than is being claimed. Detailed data protection safeguards are needed, particularly since EUROSUR will form in the future a part of the EU’s wider Common Information Sharing Environment (CISE), under which information may be shared with a whole range of third actors, including police agencies and defence forces. They also call for proper supervision of EUROSUR, with national data protection authorities checking the processing of personal data by the EUROSUR National Coordination Centres, and the processing of personal data by FRONTEX, subject to review by the European Data Protection Supervisor. EUROSUR also envisages the exchange of information with ‘neighbouring third countries’ on the basis of bilateral or multilateral agreements with member states, but the draft legislation expressly precludes such exchanges where third countries could use this information to identify persons or groups who are at risk of being subjected to torture, inhuman and degrading treatment, or other fundamental rights violations. The authors argue that it will be impossible to uphold this provision without the logging of all such data exchanges and the establishment of a proper supervisory system. [***]”
Boats4People Releases Mapping Platform to Monitor the Maritime Borders of the EU for Violations of Migrants’ Rights
Boats4People announced last week the release of a mapping platform to monitor “in almost real-time reported cases of migrants in distress at sea”. The project is called WatchTheMed and “is a collaboration between the Forensic Oceanography research project at Goldsmiths College and Boats4People, a campaign led by an international coalition of NGOs aiming at bringing an end to the death of migrants at sea and foster solidarity between both sides of the Mediterranean.”
Press Release: 03.07.2012 WatchTheMed
Boats4People Mapping Platform to Monitor the Maritime Borders of the EU for Violations of Migrants’ Rights
While Boats4People’s Oloferne boat is at sea, many other participants are contributing from the land in Italy, Tunisia, across Africa and Europe and even as far as the USA. Amongst them, researchers of the Forensic Oceanography research project at Goldsmiths, University of London, who, in the frame of the B4P campaign, have launched a new online mapping platform to monitor in almost real time the death of migrants and violations of their rights at the Maritime Borders of the EU.
Acting as a “civilian watchtower” over the Mediterranean, WatchTheMed aims to collect all possible sources of information concerning incidents at sea: distress signals send out by Coast Guards, news articles, reports by different partners, testimonies from migrants, satellite imagery. It inscribes these incidents within the complex political ecology of the Mediterranean: overlapping Search and Rescue zones, maritime patrols, radar coverage.
By assembling these multiple sources of information so as to document with the highest possible degree of precision incidents at sea and by spatialising this data, the aim is to develop a new tool to increase accountability in the Mediterranean.
During the three weeks of the B4P journey, the WatchTheMed platform will be regularly updated. Help us monitor the maritime borders of the EU by reporting an incident, maritime patrols or means of surveillance on the website www.watchthemed.crowdmap.com or send us an email at: email@example.com.
For more information on the Forensic Oceanography project visit:
Una piattaforma per mappare le violazioni dei diritti dei migranti ai confini marittimi dell’ EU.
WatchTheMed è una collaborazione fra Boats4People e il progetto di ricerca Forensic Oceanography del Goldsmiths College.
WatchTheMed vuole essere uno strumento per mettere fine all’impunità per la morte dei migranti in mare e la violazione dei loro diritti ai confini marittimi dell’UE. Per fare questo, monitora e mappa in tempo (quasi) reale casi di migranti in difficoltà in mare, di violazioni dei loro diritti e di decessi. Questi episodi vengono inscritti nell’ambito della complessa ecologia politica del Mediterraneo, con un attenzione particolare al Canale di Sicilia.
Questa mappa è un progetto pilota partito nel luglio 2012. Aiutaci a monitorare i confini marittimi dell’ Unione Europea, visita il sito www.watchthemed.crowdmap.com.
Une plateforme pour cartographier les violations des droits des migrants aux frontières maritimes de l’UE
WatchTheMed est une collaboration entre Boats4People et le projet de recherche Forensic Oceanography de l’Université de Goldsmiths, Londres.
WatchTheMed vise à être un outil pour mettre un terme à l’impunité qui entoure les morts des migrants et les violations de leurs droits aux frontières maritimes de l‘ UE. A cette fin, le projet observe et cartographie en temps presque réel les cas rapportés de détresse, de violations du droit et de morts en mer, et inscrit ceux-ci dans la structure complexe de la Méditerranée, en mettant l’accent sur le Canal de Sicile.
Cette carte est un projet pilote lancé en juillet 2012. Aidez nous à observer les frontières maritimes de l’UE, rapportez un incident en visitant le site www.watchthemed.crowdmap.com.
The UNHCR reported yesterday that UNHCR staff interviewed the sole survivor of a migrant boat that departed from Tripoli for Italy in late June with 55 people on board. The survivor was interviewed in Zarzis, Tunisia. “According to the survivor, there was no water on board and people started to die of dehydration within days. Many drank sea water, including the man who survived. He was rescued [off the coast of Tunisia] floating on the remains of the [inflatable] boat and a jerry can. According to the survivor over half of the deceased were from Eritrea, including three of his relatives.” According to the UNHCR press statement “[s]o far in 2012, over 1,300 people have arrived by boat from Libya in Italy. A boat, reportedly carrying 50 Eritreans and Somalis, is currently at sea. They refused to be rescued by Maltese military forces [on 9 July]. Over 1,000 people on 14 boats have arrived in Malta from Libya so far this year. Two other boats were intercepted by Maltese authorities, but the majority elected not to be rescued and continued to Italy. UNHCR Italy estimates that so far this year some 170 people have been declared dead or lost at sea attempting to make the journey from Libya to Europe.”
Click here for UNHCR press statement.
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.
AGREEMENTS BETWEEN ITALY AND LIBYA
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.
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.
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.
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.
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.”
See also www.whenyoudontexist.eu
Yesterday, 10 June 2012, marked the 35th anniversary of the rescue by an Israeli ship (the freighter Yuvali) of 66 Vietnamese boat people in the South China Sea. After neighboring countries, including Hong Kong and Taiwan, refused to permit the disembarkation of the rescued Vietnamese, the Israeli government agreed to allow the 66 Vietnamese to be transported to and resettled in Israel. While I have not confirmed this, an Associated Press report at the time of the event quoted an Israeli Interior Ministry official as saying that this was the first time that Israel had permitted non-Jewish refugees to settle in Israel. The humanitarian decision taken 35 years ago stands in stark contrast to the asylum and migration laws that are now to be enforced in Israel.
Israeli Interior Minister Eli Yishai announced last week that the revised Prevention of Infiltration Law will begin being enforced. The Infiltration Law allows the arrest and detention of irregular border crossers, including asylum seekers. The Israeli Defence Ministry also announced last week that five new detention centres are under construction and when completed will consist of 20,000 to 25,000 tents. “The objective of the plan, according to the [Defence] ministry, is to ensure that all African migrants who enter Israel will be directly transferred to a detention center where they will stay for long periods of time, in order to prevent their entry to Israeli cities.”
Human Rights Watch issued a statement on 10 June calling on the Israeli government to refrain from enforcing the law until its provisions are amended to comply with Israel’s international legal obligations: “On January 10  the Knesset amended the 1954 Prevention of Infiltration Law to define all irregular border-crossers as ‘infiltrators.’ The law permits Israeli authorities to detain all irregular border-crossers, including asylum seekers and their children, for three years or more before their deportation. The law also allows officials to detain some people indefinitely, even if border control officials recognize they might face persecution if returned to their country. [***] The government and the United Nations High Commissioner for Refugees (UNHCR) estimate that since 2005, around 60,000 Africans have entered Israel somewhere along the 240-kilometer border with Egypt after passing through the Sinai desert. Many of the migrants and asylum seekers fall victim to abusive human traffickers en route to Israel, particularly in the Sinai. [***] Israel is building a fence along the border to prevent irregular crossings and expanding a detention facility for irregular border-crossers from 2,000 beds to around 5,400, according to Israeli refugee rights groups….”
Click here for HRW Statement.
ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April in which he recommended that the European Court of Justice annul Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex (Sea Borders Rule). The Advocate General’s recommendation, issued in the case of the European Parliament v Council of the EU, Case C-355/10, will be considered by the ECJ in the coming weeks. The case was filed by the European Parliament on 12 July 2010. A hearing was conducted on 25 January 2012.
The Advocate General’s recommendation is based primarily on the conclusion that the Council adopted the Frontex Sea Borders Rule by invoking a procedure which may only be used to amend “non-essential elements” of the Schengen Borders Code. The Advocate General concluded that rather than amending “non-essential elements” of the SBC, the Council Decision introduces “new essential elements” into the SBC and amends the Frontex Regulation. The recommendation calls for the effects of the Sea Borders Rule to be maintained until a new act can be adopted in accordance with ordinary legislative procedures.
[UPDATE:] Paragraph 64 of the Recommendation explains why the Commission likely sought to implement the Sea Borders Rule through the committee mechanism rather than by pursuing ordinary legislative procedures:
“64. Firstly, some provisions of the contested decision concern problems that, as well as being sensitive, are also particularly controversial, such as, for example, the applicability of the principle of non-refoulement in international waters (51) or the determination of the place to which rescued persons are to be escorted under the arrangements introduced by the SAR Convention. (52) The Member States have different opinions on these problems, as is evident from the proposal for a decision submitted by the Commission. (Ftnt 53)
Ftnt 53 – Moreover, it would seem that it is precisely a difference of opinion and the impasse created by it which led to the Commission’s choosing to act through the committee mechanism under Article 12(5) of the SBC rather than the ordinary legislative procedure, as is clear also from the letter from Commissioner Malmström annexed to the reply. These differences persist. The provisions of the contested decision concerning search and rescue, for example, have not been applied in Frontex operations launched after the entry into force of the contested decision on account of opposition from Malta.”
While this case presents a procedural question and does not involve a review of any of the substantive provisions of the Sea Borders Rule, the Advocate General’s statement in Paragraph 64 that “the applicability of the principle of non-refoulement in international waters” is a “controversial” position is wrong. Perhaps the position is still controversial in some circles, but legally, with the important exception expressed by the US Supreme Court, it is clear that non-refoulement obligations apply to actions taken in international waters.
Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.
Click here for my last post on the case.
Extensive Excerpts from the Advocate General’s Recommendation:
“1. In the present proceedings, the European Parliament requests the Court to annul Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code (2) as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the contested decision’). (3) If the action should be upheld, Parliament requests that the effects of the contested decision be maintained until it shall have been replaced.
9. The contested decision was adopted on the basis of Article 12(5) of the SBC, in accordance with the procedure provided for in Article 5a(4) of the comitology decision … [***]
10. According to recitals (2) and (11) of the contested decision, its principal objective is the adoption of additional rules for the surveillance of the sea borders by border guards operating under the coordination of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’ or ‘Frontex’), established by Regulation 2007/2004 (‘the Frontex Regulation’). (9) It consists of two articles and an annex divided into two parts entitled ‘Rules for sea border operations coordinated by the Agency’ and ‘Guidelines for search and rescue situations and for disembarkation in the context of sea border operations coordinated by the Agency’. Under Article 1, ‘[t]he surveillance of the sea external borders in the context of the operational cooperation between Member States coordinated by the … Agency … shall be governed by the rules laid down in Part I to the Annex. Those rules and the non-binding guidelines laid down in Part II to the Annex shall form part of the operational plan drawn up for each operation coordinated by the Agency.’
11. Point 1 of Part I to the Annex lays down certain general principles intended, inter alia, to guarantee that maritime surveillance operations are conducted in accordance with fundamental rights and the principle of non-refoulement. Point 2 contains detailed provisions on interception and lists the measures that may be taken in the course of the surveillance operation ‘against ships or other sea craft with regard to which there are reasonable grounds for suspecting that they carry persons intending to circumvent the checks at border crossing points’ (point 2.4). The conditions for taking such measures vary depending on whether the interception takes place in the territorial waters and contiguous zone of a Member State (point 2.5.1) or on the high seas (point 2.5.2). Point 1 of Part II to the Annex lays down provisions on units participating in the surveillance operation in search and rescue situations, including with regard to communicating and forwarding information to the rescue coordination centre responsible for the area in question and the coordination centre of the operation, and defines certain conditions for the existence of an emergency (point 1.4). Point 2 lays down guidelines on the modalities for the disembarkation of the persons intercepted or rescued.
II – Procedure before the Court and forms of order sought
12. By act lodged at the Registry of the Court of Justice on 12 July 2010, the Parliament brought the action which forms the subject-matter of the present proceedings. The Commission intervened in support of the Council. At the hearing of 25 January 2012, the agents of the three institutions presented oral argument.
13. The Parliament claims that the Court should annul the contested decision, rule that the effects thereof be maintained until it is replaced, and order the Council to pay the costs.
14. The Council contends that the Court should dismiss the application as inadmissible or, in the alternative, as unfounded and order the Parliament to pay the costs.
15. The Commission requests the Court to dismiss the application and order the Parliament to pay the costs.
III – Application
A – Admissibility
23. For all the reasons set out above, the application must, in my view, be declared admissible.
B – Substance
24. The Parliament considers that the contested decision exceeds the implementing powers conferred by Article 12(5) of the SBC and therefore falls outside the ambit of its legal basis. In that context it raises three complaints. Firstly, the contested decision introduces new essential elements into the SBC. Secondly, it alters essential elements of the SBC. Thirdly, it interferes with the system created by the Frontex Regulation. These complaints are examined separately below.
3. First complaint, alleging that the contested decision introduces new essential elements into the SBC
61. Given both the sphere of which the legislation in question forms part and the objectives and general scheme of the SBC, in which surveillance is a fundamental component of border control policy, and notwithstanding the latitude left to the Commission by Article 12(5), I consider that strong measures such as those listed in point 2.4 of the annex to the contested decision, in particular those in subparagraphs (b), (d), (f) and g), and the provisions on disembarkation contained in Part II to that annex, govern essential elements of external maritime border surveillance. These measures entail options likely to affect individuals’ personal freedoms and fundamental rights (for example, searches, apprehension, seizure of the vessel, etc.), the opportunity those individuals have of relying on and obtaining in the Union the protection they may be entitled to enjoy under international law (this is true of the rules on disembarkation in the absence of precise indications on how the authorities are to take account of the individual situation of those on board the intercepted vessel), (47) and also the relations between the Union or the Member States participating in the surveillance operation and the third countries involved in that operation.
62. In my view, a similar approach is necessary with regard to the provisions of the contested decision governing interception of vessels on the high seas. On the one hand, those provisions expressly authorise the adoption of the measures mentioned in the preceding paragraph in international waters, an option which, in the context described above, is essential in nature, irrespective of whether or not the Parliament’s argument is well founded, that the geographical scope of the SBC, with regard to maritime borders, is restricted to the external limit of the Member State’s territorial waters or the contiguous zone, and does not extend to the high seas. (48) On the other hand, those provisions, intended to ensure the uniform application of relevant international law in the context of maritime border surveillance operations, (49) even if they do not create obligations for the Member States participating in those operations or confer powers on them, other than those that may be deduced from that legislation, do bind them to a particular interpretation of those obligations and powers, thereby potentially bringing their international responsibility into play. (50)
63. Two further observations militate in favour of the conclusions reached above.
64. Firstly, some provisions of the contested decision concern problems that, as well as being sensitive, are also particularly controversial, such as, for example, the applicability of the principle of non-refoulement in international waters (51) or the determination of the place to which rescued persons are to be escorted under the arrangements introduced by the SAR Convention. (52) The Member States have different opinions on these problems, as is evident from the proposal for a decision submitted by the Commission. (53)
65. Secondly, a comparison with the rules on border checks contained in the SBC shows that the definition of the practical arrangements for carrying out those checks, in so far as they concern aspects comparable, mutatis mutandis, to those governed by the contested decision, was reserved to the legislature, and this is so notwithstanding the fact that the Commission expressed a different opinion in the proposal for a regulation. (54)
66. In the light of all the preceding provisions, I consider that the contested decision governs essential elements of the basic legislation within the meaning of the case-law set out in points 26 to 29 of this Opinion.
67. Therefore, the Parliament’s first complaint must, in my opinion, be upheld.
4. Second complaint, alleging that the contested decision alters essential elements of the SBC
68. In its second complaint, the Parliament claims that, by providing that border guards may order the intercepted vessel to change its course towards a destination outside territorial waters and conduct it or the persons on board to a third country [point 2.4(e) and (f) of Part I to the annex], the contested decision alters an essential element of the SBC, that is to say, the principle set out in Article 13, under which ‘[e]ntry may only be refused by a substantiated decision stating the precise reasons for the refusal.’
69. The Parliament’s argument is based on the premise that Article 13 is applicable to border surveillance too. This interpretation is opposed by both the Council and the Commission, which consider that the obligation to adopt a measure for which reasons are stated pursuant to that provision exists only when a person who has duly presented himself at a border crossing point and been subject to the checks provided for in the SBC has been refused entry into the territory of Union.
70. The Parliament’s complaint must, in my view, be rejected, with no need to give a ruling, as to the substance, on the delicate question of the scope of Article 13 SBC on which the Court will, in all likelihood, be called to rule in the future.
5. Third complaint, alleging that the contested decision amends the Frontex Regulation
82. However, the fact remains that Article 1 of the contested decision substantially reduces the latitude of the requesting Member State and, consequently, that of the Agency, potentially interfering significantly with its functioning. An example of this is provided by the events connected with the Frontex intervention requested by Malta in March 2011 in the context of the Libyan crisis. The request by Malta, inter alia, not to integrate into the operational plan the guidelines contained in Part II to the annex to the contested decision met with opposition from various Member States and involved long negotiations between the Agency and the Maltese Government which prevented the operation from being launched. (62)
83. In actual fact, the annex to the contested decision as a whole, including the non-binding guidelines – whose mandatory force, given the wording of Article 1, it is difficult to contest – (63) is perceived as forming part of the Community measures relating to management of external borders whose application the Agency is required to facilitate and render more effective under Article 1(2) of the Frontex Regulation. (64)
84. Furthermore, the non-binding guidelines contained in Part II to the annex to the contested decision relating to search and rescue situations govern aspects of the operation that do not fall within Frontex’s duties. As the Commission itself points out in the proposal on the basis of which the contested decision was adopted, Frontex is not an SAR agency (65) and ‘the fact that most of the maritime operations coordinated by it turn into search and rescue operations removes them from the scope of Frontex’. (66) The same is true with regard to the rules on disembarkation. None the less, the contested decision provides for those guidelines to be incorporated into the operational plan.
85. On the basis of the foregoing considerations, I consider that, by regulating aspects relating to operational cooperation between Member States in the field of management of the Union’s external borders that fall within the scope of the Frontex Regulation and, in any event, by laying down rules that interfere with the functioning of the Agency established by that regulation, the contested decision exceeds the implementing powers conferred by Article 12(5) of the SBC.
C – Conclusions reached on the application
89. In the light of the foregoing, the action must, in my view, be allowed and the contested decision annulled.
IV – Parliament’s request that the effects of the contested decision be maintained
90. The Parliament requests the Court, should it order the annulment of the contested decision, to maintain the effects thereof until a new act be adopted, pursuant to the power conferred on it by the second paragraph of Article 264 TFEU. That provision, under which ‘the Court shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive’ has also been used to maintain temporarily all the effects of such an act pending its replacement. (68)
91. In the present case, annulment pure and simple of the contested decision would deprive the Union of an important legal instrument for coordinating joint action by the Member States in the field of managing surveillance of the Union’s maritime borders, and for making that surveillance more in keeping with human rights and the rules for the protection of refugees.
92. For the reasons set out, I consider that the Parliament’s application should be granted and the effects of the contested decision maintained until an act adopted in accordance with the ordinary legislative procedure shall have been adopted.
Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.
Click here for previous post on topic.
The Court found that ECHR Article 1 jurisdiction existed because “the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities” from the point in time when the applicants’ boats were intercepted and the applicants were transferred to the Italian ships up until the point when the applicants were turned over to Libyan authorities in Tripoli. [para. 81]
The Court noted that the jurisdiction of a State is essentially territorial and therefore “the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç, decision cited above, § 67; and Ilaşcu and Others, cited above, § 314).” [para. 72].
“73. [***] In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts, for example full and exclusive control over a prison or a ship (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 132 and 136, 7 July 201; Medvedyev and Others, cited above, § 67).
74. Whenever the State through its agents operating outside its territory exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Court has now accepted that Convention rights can be ‘divided and tailored’ (see Al-Skeini, cited above, § 136 and 137; compare Banković, cited above, § 75).”
The Court rejected Italy’s jurisdictional arguments. While Italy acknowledged that the events in question took place on board its military ships, Italy asserted that due to the nature of the operation, the military ships and their personnel never exercised “absolute and exclusive control” over the applicants. [para. 64] Italy argued that its actions constituted a “rescue on the high seas of persons in distress” and therefore “could in no circumstances be described as a maritime police operation.” [para. 65] Italy argued that the UN Convention on the Law of the Sea obligated it to rescue persons in distress and that carrying out its obligations under the Convention on the Law of the Sea “did not in itself create a link between the State and the persons concerned establishing the State’s jurisdiction.” [para. 65]
The Court concluded that Italy “[could not] circumvent its ‘jurisdiction’ under the [ECHR] by describing the events at issue as rescue operations on the high seas.” The Court took note of the events in the case of Medvedyev and Others where French military personnel intercepted a vessel flying the flag of a third State and took control of crew members who remained on board the intercepted vessel. [para. 80]
“81. The Court observes that in the [Hirsi] case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.
82. Accordingly, the events giving rise to the alleged violations fall within Italy’s ‘jurisdiction’ within the meaning of Article 1 of the Convention.”
In some respects, the Article 1 jurisdictional issue was easier to address because the applicants were removed from their vessels and taken on board the Italian military vessels. The Court noted that under “relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying” [para. 77] and further that this principle is contained within the Italian Navigation Code. [para. 78] The Court accordingly found that de jure control had been exercised over the applicants after they were transferred from their boats to the Italian ships.
It seems clear that Italy intends in the future to resume some sort of bi-lateral immigration control measures with Libya. It remains to be seen whether Italy will try to implement some modified form of the push-back practice that has now been condemned by the Court. One of the provisions in one of the bi-lateral agreements between Italy and Libya mentioned in the Hirsi judgment provides for the deployment of
“maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills. The patrols shall be conducted in Libyan and international waters under the supervision of Libyan personnel and with participation by Italian crew members, and in Italian and international waters under the supervision of Italian personnel and with participation by the Libyan crew members.” Additional Protocol of 4 February 2009 [para. 19]
The question arises whether Italy could evade jurisdiction and circumvent its Convention obligations by lessening its control over a new push-back scheme. How would the Court have viewed the push-back events had they occurred, as the operational protocol above contemplates, “in … international waters under the supervision of Libyan personnel and with participation by Italian crew members”?
Mare Deserto: RSI documentary about the failure to rescue and subsequent deaths of 60 migrants in the Mediterranean in March 2011
RSI LA1, the Swiss Italian-language television network, last month broadcasted a one hour documentary, Mare deserto , produced by Emiliano Bos and Paul Nicol. The documentary is in Italian. It investigates the events that occurred between 25 March and 10 April 2011 when a disabled migrant boat attempting to travel from Libya to Italy drifted for days during which time approximately 60 persons died. Survivors from the migrant boat reported that at various times military ships and helicopters ignored their requests for assistance. The producers located and interviewed 9 of the known survivors in Italy, Tunisia and Norway.