The Closing of European Ports: Catastrophe or Immigration Crisis Management?

Posted in: Human Rights

The United States is only one of many countries in the throes of an immigration crackdown. Last week, after the rescue of 629 migrants on the Mediterranean Sea, the Italian government closed its port to them. Italy demanded the Aquarius, a humanitarian rescue ship, stop 35 nautical miles off its coast, prompting Malta’s Prime Minister Joseph Muscat to declare the action as “manifestly . . . against international rules.” Despite this harsh criticism, Malta also refused to allow the ship to dock. After several fraught days, Spain finally stepped in to accept the disembarkation of these migrants. While the immediate crisis has passed, the varied European responses to the Aquarius raise deeper questions about the adequacy of the existing legal framework and the need for a more comprehensive European agreement on migration.

Did Italy and Malta Behave Lawfully?

Before reaching the larger questions about Europe’s migration system, we must understand how the existing legal frameworks address the immediate situation of migrants at risk at sea. The consensus of scholars seems to be that Italy’s and Malta’s behavior probably fits best in the category of “lawful but awful,” though the gaps in the legal framework might permit a progressive court to find otherwise. In order to explain why, I start with the mechanics of the most direct governing legal framework.

Under the International Convention on Maritime Search and Rescue, to which both Italy and Malta are members, each coastal state must provide search and rescue services within their appointed search and rescue region. Italy, but not Malta, also accepted a 2004 amendment to the treaty, to ensure safe disembarkation at a place of safety for those rescued in their region. The 629 migrants in distress, however, were found in neither Italy’s nor Malta’s region, but in Libya’s region of the Mediterranean. As Libya has not fully set up its search and rescue services, Italy has generally acted as the lead in this location.

Even if Italy’s past behavior made it legally responsible for search and rescue for those 629 migrants as well as their disembarkation at a safe place, Italy probably satisfied these requirements. After the US Navy provided assistance to the mariners in distress, Italy coordinated the rescue of the migrants and facilitated their transfer to the Aquarius, a German NGO rescue vessel. During the standoff, both Italy and Malta sent supplies to the ship. But what about the Italian refusal to allow them to enter? European legal scholar Stefan Talmon concluded “rescuing those in distress is obligatory. Taking them in is not.” Why? The requirement that shipwrecked individuals be brought to a safe place in the convention is ill defined, with a lack of clarity of whether that means “brought to land” or simply to a larger ship or an inflatable life raft. Even if it means “brought to land”, the amendment does not say that migrants must be brought to the responsible state’s land, but merely that the responsible state must ensure they are brought to a safe place, which has happened here.

Human rights law provides a supplemental governing framework by which to consider the behavior of Italy and Malta. As scholars Melanie Fink and Kristof Gombeer have pointed out, states’ human rights obligations arise only once individuals are within their jurisdiction, and those on the Aquarius never made it into either Italy’s or Malta’s jurisdiction. Neither Italian nor Maltese officials were present on the scene exercising direct control over the migrants, and the direction to the ship probably does not count as sufficient control as to provide jurisdiction. Even Amnesty International, a group not shy about decrying human rights violations, bemoaned the possible precedent setting of closing ports and the effect on the rescue system, but stopped short of calling either country’s behavior illegal.

Chaos or Crisis Management?

Many believe Italy’s refusal is really about reshaping Europe’s immigration policy and getting its neighbors to bear a greater share of the burden. Of the 10,000 plus migrants who have entered Europe by sea this year, almost 50 percent arrived in Italy. The 2003 Dublin system attaches a great deal of legal significance to this point of entry, as the state where migrants first enter is generally the one responsible for examining the relevant asylum applications. By refusing entry, Italy made clear the seriousness of its demand to be responsible for a much smaller share of the streams of migrants heading for Europe.

The reaction of the European community to Italy’s behavior has been mixed. Some, like Hungary, have praised the Italian decision suggesting that it “had been so depressing to hear for years that Europe’s maritime borders cannot be defended that one practically lost the will to live.” Others have been sharply critical, such as France, emphasizing that they don’t want Spain’s acceptance of the migrants to “start a precedent that would allow some European countries to breach international laws.” A French spokesperson also stated that “The Italian position makes me want to vomit” and “It’s totally unacceptable to play petty politics with human lives as is happening now.” In turn, Italy demanded an apology from France, a country which Italy views as hypocritical, having resettled less than 10 percent of migrants as promised under the 2015 Dublin system of resettlements.

Perhaps most importantly, the Aquarius heightened Germany’s internal tensions over migration. While German Chancellor Merkel supported an open-door migration policy in response to the Syrian crisis, its implementation has been opposed by many in her coalition. Merkel has signaled some interest in leading a new European migration policy, but is beleaguered by an interior minister who threatened to unilaterally close its borders to asylum seekers registered in other European countries. Even President Donald Trump weighed in on the European crisis, commenting “The people of Germany are turning against their leadership as migration is rocking the already tenuous Berlin coalition. Crime in Germany is way up. Big mistake made all over Europe in allowing millions of people in who have so strongly and violently changed their culture!”

Where does Europe go from here? One set of solutions focuses on Africa itself. Some want to reduce the pressure to leave through ongoing military operations and political diplomacy aimed at ending conflicts or through financial transfers or fostering African development projects. These proposals might pay long-term dividends, but in the short term, they are unlikely to put much of a dent in the numbers of those seeking to escape to Europe. More disturbing Africa-centered policies have suggested not only training the Libyan coast guard and facilitating their competence in search and rescue, but also setting up migrant detention centers in Libya. Given Libya’s appalling human rights record and the difficulties even much less repressive countries have in running detention centers lawfully and humanely, a desperate need for a European centered solution remains.

And the clock is ticking. German Chancellor Merkel has just been presented with a fourteen-day ultimatum from her domestic coalition partners to find a Europe-wide solution. What might such a system look like? To address situations like the Aquarius, Fink and Gombeer have suggested “a flexible list of safe ports (a system already applied in marine environment protection) along the European coastline of cities willing to accept disembarkations of migrants, now seems a policy option worth contemplating more seriously.” But what about the bigger picture? A good starting place would be the proposed 2016 Dublin IV regulations which would have included a corrective allocation mechanism that would:

  • Automatically establish when a country is handling a disproportionate number of asylum applications . . . by reference to a country’s size and wealth.
  • If one country receives disproportionate numbers above and beyond that reference (over 150% of the reference number), all further new applicants in that country would (regardless of nationality) be relocated, after an admissibility verification of their application, across the EU until the number of applications is back below that level.
  • A Member State would also have the option to temporarily not take part in the reallocation. In that case, it would have to make a solidarity contribution of €250,000 for each applicant for whom it would otherwise have been responsible under the fairness mechanism, to the Member State that is reallocated the person instead.

While European states were slow to accept them in the past, perhaps the silver lining of the Aquarius event is the demonstration of coastal states’ resolve on this issue and their ability to exact a horrific toll on future migrants. If France and other wealthy European nations are serious about the value they say they place on a humane and humanitarian migration system, they need to offer more to those nations on the front lines.

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