C Explanatory
memorandum by Mr Díaz Tejera, rapporteur
1 IntroductionNote
1. The surveillance of Europe’s southern borders has
become a regional priority, as the southern European states feel
overwhelmed by the arrival of large numbers of persons reaching
their shores by sea in an irregular manner. Conducted individually,
by a group of states or within the context of a joint operation
co-ordinated by Frontex,
Note border management activities
are generally legitimately based on considerations prioritising
national or regional security and stability, and also on attempts
to reduce the loss of lives at sea. The maritime interception of
vessels and persons is one of the measures resorted to by states
to achieve these aims. Yet several aspects of maritime interception
measures raise a series of human rights concerns, centred around
the individual circumstances of the intercepted persons. In order
to present these human rights concerns and propose measures for
their resolution, an analysis of the relevant norms of international
maritime law and international human rights is required.
2. This report’s
Note combined approach towards the
two legal spheres is premised on a number of concrete queries, a
process that facilitates an otherwise complex legal analysis. At
a preliminary stage, a jurisdictional query is necessary, and the
report needs to establish the extent to which, if at all, states
are bound by their international human rights obligations when implementing
interception measures at sea, particularly when such measures occur
on the high seas. Having established this primary parameter, the
degree of state responsibility for possible human rights violations
as a consequence of maritime interception needs to be determined,
either specifically or in relation to generic situational contexts.
3. It ought to be emphasised at the outset that it is not this
report’s intention or mandate to target and criticise specific countries
for their past and/or present activities. Nonetheless, reference
must inevitably be made to a number of maritime incidents and state
policies insofar as they are the very core of the report’s subject
matter. The specific incidents and policies referred to are the
situations off the West-African coast and in the central Mediterranean.
2 General
overview
4. This introductory section seeks to provide a short
overview of the migratory patterns affecting Europe’s southern borders
and involving a number of African states. Following this overview,
a definition of the notion of “interception” is provided. This introductory
description is by no means a detailed account of the migration and asylum
scenarios played out in the Mediterranean and off Africa’s west
coast, yet has the purpose of laying out the scenarios’ main features
and modalities.
Note
2.1 Mixed migration
from Africa to Europe
5. In recent years the Mediterranean Sea has seen increasing
numbers of persons leaving north African shores and travelling by
sea in an attempt to reach Europe. Persons from various countries
of origin board rickety vessels that are generally unfit for the
dangerous journey, since they are usually unequipped to deal with
the challenges presented by severe climatic conditions, over-crowdedness
and the physical and mental state of the passengers.
6. For persons departing from North Africa, generally Libya but
also Tunisia, Morocco and Algeria, Italy is the primary destination.
Malta, being mid-way between North Africa and Italy, is in most
cases not the intended destination. A similar scenario is that seen
off the West African coast, where boats departing from Senegal and Mauritania
target the Canary Islands as the access point to European territory.
Note
7. The journeys are in all cases undertaken through irregular
means. A vast majority of boats used in these situations are flagless,
raising jurisdictional issues. This recourse to irregular means
of travelling is primarily due to the fact that for most persons
leaving Africa in this manner, regular and – more importantly –
safer options are in fact not available. For many persons, especially
refugees and persons in need of alternative forms of international
protection, obtaining authentic and official personal documentation
may be impossible due to governmental unwillingness to issue necessary
documents, personal exposure and risks consequential to attempts
at obtaining them or the sheer inexistence of the appropriate state
entities. These limitations are further exacerbated by the stringent
conditions imposed to be granted access to the European Union.
8. For these reasons, the only way for such persons to travel
by sea across the Mediterranean or across the Atlantic stretch between
West Africa and the Canary Islands, is to seek the assistance of
smuggling networks or in some cases to fall prey to human traffickers.
Note Together with
the high risks associated with such perilous journeys, the resort
to irregular means to access European territory triggers a number
of state responses based on the premises of combating the crimes
of smuggling and trafficking, maintaining maritime safety and security
and border management and protection.
9. Yet despite the apparent novelty of these situations and their
widespread media coverage – once again put in the spotlight following
the ongoing events in the southern Mediterranean and the large scale
of arrivals on the island of Lampedusa (Italy) – it ought to be
mentioned that the phenomenon of “boat people” is certainly not
a new one, and not one that is particular or exclusive to Europe.
Note
10. Such boat arrivals are generally associated with a sudden
influx of persons that places large burdens on the search and rescue
capacities, reception modalities and asylum systems of the receiving
state, even when it is a European state. Following a series of appeals
for European solidarity by the southern European states, in January
2009 Cyprus, Greece, Italy and Malta detailed their concerns in
a paper presented to the European Union institutions, in which they
specified that “the influx of illegal immigrants is clearly a cause
for concern, as it results in considerable strain on these countries’
admission resources and asylum systems”.
Note The paper made a clear appeal
to the European Union to assist the four states in coping with the
challenges relating to the region’s southern border. The assistance
requested by Cyprus, Greece, Italy and Malta included,
inter alia, the conclusion of European
Union Readmission Agreements with African and Middle-Eastern countries
of origin and transit, the strengthening of Frontex and the establishment
of an intra-European Union relocation scheme for persons recognised
as being in need of international protection.
11. Another common feature of boat arrivals is the mixed composition
of the persons aboard the vessels, their migratory movements being
characterised as mixed migratory flows including asylum seekers,
refugees and persons eligible for subsidiary or complementary protection,
economic migrants, victims of trafficking or persons at risk of
being trafficked and others. The coming together of all these persons
is what defines these migratory flows as mixed, and ought to be
the basis of any comprehensive and protection-sensitive border management
strategy developed and implemented by the states involved at the
departure, transit and arrival stages.
12. In the specific context of the Mediterranean arrivals, statistics
indicate a large presence of persons potentially eligible for international
protection, linked primarily to the fact that the countries of origin
of a substantial percentage of persons are refugee-producing countries
or countries currently involved in armed conflict as well as source
countries for human trafficking and smuggling. Official figures
reveal that of the 1 475 persons arriving in Malta by boat in 2009,
Note 1 308 persons
applied for asylum (89% of arrivals). Of these, 852 persons were
recognised as being in need of international protection,
NoteNote notably 65% of all asylum seekers
for that year and 58% of all arrivals by boat. In 2008,
Note approximately 36 000 persons arrived
in Italy by sea and 75% of these applied for asylum. Additionally,
around 70% of all asylum applications received by Italy were presented
by persons arriving by boat. Considering that, as in previous years,
international protection needs were recognised in around half of
all asylum cases processed in Italy,
Note it may
be said that over 20% of all persons reaching Italy by boat were
either refugees or persons otherwise in need of international protection.
Note
13. Figures for the Canary Islands are somewhat different, revealing
a smaller asylum component amongst the persons reaching the Islands.
In 2008, 356 asylum applications were presented in the Canary Islands,
with the total number of arrivals being about 2 300.
Note Furthermore, a steady annual decrease
in the number of arrivals is evident in relation to Spain, with
the consequential reduction in the number of asylum applications received
from persons leaving West Africa by boat.
Note In
2006, almost 32 000 persons arrived by sea; there were only 12 000
persons in 2007.
Note
14. In the aftermath of the still ongoing events in the southern
Mediterranean, according to UNHCR between mid-January and 10 May
2011, nearly 34 500 persons arrived by boat in Lampedusa, leading
to massive overcrowding at the migrant reception centre. Among them,
there were 23 000 Tunisians (mainly irregular migrants) and 11 000
persons of other nationalities (mainly refugees and asylum seekers
fleeing the conflicts in Libya). Malta has received 1 100 asylum
applications since the start of the North African uprisings.
15. Acknowledging the mixed composition of any group of persons
reaching the shores of a European state is certainly the first step
towards ensuring the most appropriate response to the various categories
of persons. This is especially relevant in the context of the interception
of boats and the actions taken thereafter.
2.2 A working definition
of “interception”
16. As a corollary to the principle of state sovereignty,
it is the legitimate interest of states to ensure their territorial
integrity. It is therefore the sovereign right of all states to
exercise control over their borders and to take measures deemed
necessary to prevent unlawful entry into their territory. The interception
of persons is one of these entry-management tools adopted by states.
17. Whilst international law does not provide a comprehensive
definition of “interception”, the UNHCR has sought to define the
term as follows:
“one of the
measures employed by states to:
i prevent embarkation of
persons on an international journey;
ii prevent further onward international travel by persons
who have commenced their journey; or
iii assert control of vessels where there are reasonable grounds
to believe the vessel is transporting persons contrary to international
or national maritime law;
where, in relation to the above, the person of persons do
not have the required documentation or valid permission to enter;
and that such measures also serve to protect the lives and security
of the travelling public as well as persons being smuggled or transported
in an irregular manner.”Note
18. The above definition clearly includes within its
scope measures and activities not related to interception at sea
yet having the similar aim and effect of impeding irregular entries
into the destination country. Such non-maritime measures include
the extraterritorial out-posting of immigration officers and airline
liaison officers at airports and other border points, and the provision
of financial and technical capacity to countries of origin and transit
countries. In relation to maritime interception measures, the interception
of boatloads of persons leaving African shores attempting to reach
European territory essentially involves a combination of the elements contained
in the UNHCR definition, albeit to varying degrees depending on
general and specific contextual features.
19. Many situations do in fact entail the assertion of control
by a state over a vessel and many subsequently result in the prevention
of the vessel’s onward journey. Whilst the rescue by non-state actors
of persons in distress at sea, such as by fishermen or cargo ships,
does not necessarily include a state asserting or exercising control
over the rescued persons, it could nonetheless result in the prevention
of the rescued persons’ onward journey.
3 Analysis
20. This section identifies the legal instruments applicable
in the context of interception of irregular immigrants, asylum seekers
and refugees, with the aim of clarifying and emphasising states’
legal obligations when undertaking maritime interception. It will
be noted that the discussion necessarily entails an appreciation of
the meeting points between international maritime law and international
human rights law. Any recommendation or proposal for future action
must consequently also rely on the principles enshrined in these fields.
21. The mixed flow of persons travelling by sea is not a straightforward
situation. By its very nature, as a situation occurring at sea,
it triggers the application of various aspects of international
maritime law, such as jurisdiction, the right of innocent passage
and smuggling and trafficking. International human rights and refugee law
is also triggered since the interception of such persons has a definite
effect on the level of enjoyment by the intercepted persons of their
fundamental human rights, such as the right to life, to be free
from torture, to access to an effective remedy, to seek and enjoy
asylum, to be protected against refoulement to
a place of persecution and ill-treatment and to be free from collective
expulsions. Furthermore, this report’s principal interest in interception
also requires attention to be paid to relevant instruments in the
Community acquis of the European
Union.
3.1 UNCLOS and jurisdictional
issues
22. From the international maritime law perspective,
the 1982 United Nations Convention on the Law of the Sea (UNCLOS)
Note is the major international convention
on maritime affairs insofar as it codifies states’ rights and responsibilities
at sea, whilst also providing for key concepts such as the territorial
sea, exclusive economic zones, the right of innocent passage and
the freedom of the high seas.
Note In
delimiting the various stretches of water in terms of their distance
from a coastal state, the UNCLOS provides details on the nature
of a state’s rights within these stretches, particularly by establishing
the extent to which a state exercises jurisdiction over persons
and vessels within these waters. These details provide the international
maritime law contribution to the discussion below on the extent
to which, if at all, a state’s international human rights obligations,
particularly the absolute prohibition of
refoulement,
are applicable within these waters.
23. The most straightforward concept in this regard, in Article
2 of the UNCLOS, is that a state’s sovereignty extends into its
territorial waters, although such waters are not technically a state’s
territory. This article is the basis for several subsequent UNCLOS
provisions dealing with, inter alia,
the manifestation by states of their sovereignty through the exercise
of jurisdictional authority. Therefore, by virtue of these provisions,
it is clear that a state enjoys full and extensive jurisdictional
authority when acting in its own territorial waters – a de jure jurisdiction.
24. The situation is somewhat different when a state acts within
the territorial waters of another state, with the latter’s express
consent, as authorised by UNCLOS or through a bilateral treaty provision.
This is in fact the scenario off the West African coast, with Spanish
vessels patrolling the Senegalese and Mauritanian territorial waters.
In such cases, the coastal state’s authorisation effectively grants
the patrolling state the right to exercise its own jurisdictional
authority within the coastal state’s territorial waters, conferring
it with
de jure jurisdiction.
According to the agreement between Spain and Mauritania, for example,
Spain is granted such jurisdictional authority and it is on this
basis that, in the context of the Frontex joint operations conducted
off the Mauritanian coast, Spanish vessels intercept flagless vessels
and ensure their return to Mauritania.
Note It should be noted that Frontex’s
participation in joint operations in the framework of bilateral
agreements with third countries is not foreseen in Frontex’s founding
regulation. Therefore, the regulation needs to be amended accordingly
to define the role and competence of Frontex in this context.
Note
25. In relation to the high seas, the UNCLOS establishes the principle
of the freedom to navigate in Articles 89 and 90, specifying that
“no State may validly purport to subject any part of the high seas
to its jurisdiction” and
reserving
these waters for peaceful purposes.
Note From
a jurisdictional perspective, ships sailing on the high seas are
subject to the exclusive jurisdiction of their flag state with the
express prohibition of boarding foreign ships, save in the exceptional
circumstances listed in Article 110 (right of visit). Included in
this list of exceptional circumstances is the reasonable ground
for suspecting that a ship is without nationality.
Note The
fact that boats carrying migrants, asylum seekers and refugees from
Africa to Europe in an irregular manner are generally flagless,
and therefore not subject to any state’s exclusive jurisdiction,
authorises the ships of any state to establish and exercise its
jurisdiction over these boats. This is in fact the legal basis upon
which European Union member states exercise their jurisdictional
authority during the interception activities carried out on the
high seas off the Canary Islands and in the central Mediterranean.
26. Yet for the purposes of the present analysis, an appreciation
of the concept of jurisdictional authority under international maritime
law does not suffice for a more comprehensive discussion on interception
at sea. Whilst international maritime law clarifies the nature and
extent of a state’s obligations at sea, in terms of exercise of
its jurisdictional powers, international human rights law provides
guidance as to how far such jurisdictional powers trigger the intercepting
state’s international human rights responsibilities. The question
is essentially whether a state is bound by its human rights obligations
when conducting interception measures at sea (depending on the
ratione loci of the relevant human
rights treaties).
Note
27. The territorial application of treaty obligations is undisputed;
a treaty entered into by a state binds the state in respect of its
entire territory, unless of course the treaty specifies otherwise.
Note A state is therefore bound to respect,
protect and fulfil the human rights of all persons within its territory.
As stated above, a state exercises sovereign authority and jurisdiction
within its own territorial waters, thereby also subject to its human rights
obligations. Therefore interception measures conducted by a state
in its own territorial waters ought to be carried out in conformity
with the state’s human rights obligations, requiring the state to
safeguard the rights of all persons aboard the intercepted vessels
and, in the case of asylum seekers and refugees, to ensure their access
to its asylum procedures and not to be returned to their countries
of origin, as also reiterated by UNHCR.
Note
28. As indicated above, the
de jure jurisdiction
enjoyed by a state when acting within the territorial waters of another
state, on the basis of the latter state’s ad hoc
express consent or acquiescence,
leads to the same conclusion. This point was also reiterated by
the European Court of Human Rights in the
Bankovic case.
Note Thus,
for example, Spanish activities within Mauritanian territorial waters
on the basis of a bilateral agreement granting it jurisdictional
authority to intercept boats of persons and return them to Mauritanian
shores, trigger the application of the European Convention on Human
Rights (ETS No. 5) (“the Convention”) in respect of Spain.
Note
29. Moving further away from a state’s coast and territorial waters,
the interception on the high seas of boats of migrants, asylum seekers
and refugees and potential victims of trafficking generally involves
intercepted boats that are flagless, thereby authorising the intercepting
state to exercise its jurisdiction over the vessels and the persons
aboard them. Such clear
de jure jurisdiction
should also be considered a sufficient legal basis for the triggering
of the intercepting state’s international human rights obligations,
therefore requiring the state to act towards the intercepted persons
in the same manner as it would with regard to persons present within its
own territory. It should be noted that a state is also bound by
its international human rights obligations when its exercises
de facto jurisdiction.
Note
30. Yet the latter conclusion is disputed in relation to the extraterritorial
application of the principle of non-refoulement
Notesince,
it is argued, the prohibition of returning a person to the frontiers
of territories where his life or freedom would be threatened applies
to persons already within a state’s territory and not to persons
trying to enter such territory. On the basis of this argumentation,
the practice of diverting boats of persons, including asylum seekers
and refugees, from the high seas to territories where their lives
would be at risk would not constitute a practice prohibited under
international refugee and human rights law.
Note Yet
the extraterritoriality of the non-refoulement principle is firmly
supported by UNHCR, as clearly stated in the Advisory Opinion on
the Extraterritorial Application of Non-refoulement Obligations
under the 1951 Convention relating to the Status of Refugees and
its 1967 Protocol.
Note
31. In the advisory opinion, UNHCR reiterates established principles
and interpretations of states’ obligations with regard to non-refoulement
and considers these obligations
from a geographical perspective. It concludes that:
“...the purpose, intent and meaning
of Article 33(1) of the 1951 Convention are unambiguous and establish
an obligation not to return a refugee or asylum-seeker to a country
where he or she would be at risk of persecution or other serious
harm, which applies wherever a State exercises jurisdiction, including
at the frontier, on the high seas or on the territory of another
State.”Note
32. UNHCR’s approach also considers the protection vacuum that
would be created if states were authorised to return refugees and
asylum seekers to a country were they are at risk simply on the
basis of the consideration that they are acting outside their territory,
an approach deemed to be “inconsistent with the humanitarian object
and purpose of the 1951 Convention and its 1967 Protocol
”.
NoteThe opinion draws extensively on
cases and statements of international and regional human rights
bodies in order to underline an interpretation of the prohibition
of
refoulement that extends
to state actions beyond their territory and on the high seas.
Note
33. Furthermore, as will be discussed below, international maritime
law relating to the prevention of smuggling and trafficking and
European Union legislation also make specific reference to the obligation
of states to respect the principle of non-refoulement, including
during activities on the high seas.
34. The application of international human rights norms on the
high seas, including the principle of non-refoulement, requires
states to exercise their jurisdictional authority over the intercepted
vessels and persons in a manner that is consistent with such norms.
It ought to be emphasised that this requirement is not only limited
to the prohibition of direct or indirect
refoulement, but
also to the broader spectrum of rights. Was excessive force resorted
to by the states’ naval officers during the interception measures?
May the return to the country of departure be described as a collective
expulsion as defined under Protocol No. 4 to the European Convention
on Human Rights?
Note Could the
intercepted persons challenge the decision to return them to the country
of departure?
Note
35. As concluded in the context of interception measures conducted
within territorial waters, either by the intercepting state or by
another state, ad hoc evaluations of the interception activities
would be subsequently required in order to assess whether, in specific
situations, the human rights of the intercepted persons were in fact
violated and whether such a violation, or violations, could be attributed
to the actions of the intercepting state.
3.2 Disembarkation
at a “place of safety”
36. UNCLOS’s contribution to the present discussion on
maritime interception also includes its codification of the duty
of all seafarers to render assistance to persons found to be in
distress at sea.
Note Together
with this duty, UNCLOS further provides that all coastal states
should establish and maintain adequate and effective search and
rescue regimes.
Note These duties are extensively complemented
by two other major international instruments, namely the 1974 International
Convention for the Safety of Life at Sea (SOLAS) and the 1979 International
Convention on Maritime Search and Rescue (SAR), with the latter
convention providing the mechanisms and rules implementing the duty
of states to rescue persons in distress at sea, irrespective of nationality,
status or circumstances.
Note The SAR regime is essentially based
on the principle of state co-operation within the context of an
international maritime search and rescue plan that is targeted to
meeting the rescue needs of persons in distress at sea. It is on
the basis of this convention that the world’s seas are divided into
“area(s) of defined dimensions within which search and rescue services
are provided”,
Note commonly known as SAR zones.
37. Through the establishment of SAR zones, Rescue Co-ordination
Centres (RCC) as the state units responsible for the organisation
and co-ordination of search and rescue operations within these zones
and defining the nature of SAR obligations, the convention also
establishes the principle on the basis of which a state’s SAR responsibilities
are triggered. Whilst it is the duty of every seafarer, including
state vessels, to assist and rescue any person in distress at sea,
it is the location of the rescue operation that determines which RCC
– and therefore which state – is responsible for overall co-ordination
of the rescue operation as required by SAR. Rescue operations required
and conducted in a particular state’s SAR zone are the SAR responsibility of
that state. This principle and also the precise nature of a state’s
obligations under the convention are at the heart of an important
discussion having a strong bearing on the situation of persons aboard
rescued or intercepted boats.
38. Following a number of maritime incidents that seemed to threaten
the integrity of the tradition and obligation of seamen to provide
assistance at sea, a process for the amendment of the SAR and SOLAS Conventions,
amongst others, was initiated in 2001.
Note The International Maritime Organisation
(IMO)
Note stressed
the need to identify gaps and inconsistencies with a view to improving
the search and rescue regime.
39. The amendments adopted in 2004 came into force in July 2006,
essentially clarifying that a state’s SAR obligations include the
responsibility to co-ordinate all search and rescue operations within
its SAR zone and to ensure that all rescued persons are disembarked
at a place of safety within a reasonable time.
NoteNote Together with these amendments,
the IMO also adopted the Guidelines on the Treatment of Persons
rescued at Sea,
Note intended to provide an explanation
to the competent state authorities of their international law obligations
in a search and rescue context.
Note
40. Some of the guidelines are directly relevant to the interception
at sea of refugees, asylum seekers and other migrants. Yet the guidelines
also seek to clarify the thorny issue of what may or may not be
considered a “place of safety” for the purposes of disembarkation
of rescued persons.
41. A traditional approach to the term would be to bear in mind
the convention drafters’ intentions as a reflection of the pertaining
maritime context. Such an interpretation would define a “place of
safety” in relation to the maritime threats and perils giving rise
to the very rescue. Thus the safety would include all ports where the
rescued persons are safeguarded from imminent danger to their lives
and where they have adequate access to food, shelter, medication,
etc.
42. Yet for a contemporary understanding of the term to be relevant
and, more importantly, useful to today’s shipmasters it ought to
be applicable in the scenarios faced by today’s seafarers. The increased
tendency of groups of persons, including asylum seekers and refugees,
to embark on dangerous maritime journeys, possibly coupled with
an increased understanding and awareness of the level of human rights
protection in particular regions and countries, requires an interpretation
of “safety” that goes beyond a mere protection from physical danger,
but also considers the human rights perspective of the proposed
disembarkation location. In fact, it would seem incongruous to accept
a definition of “place of safety” that permits the disembarkation
or persons by a rescuing ship, and under the co-ordination of an
RCC state, at a port of a state where the fundamental human rights
of the rescued persons could be at risk. Such disembarkation could
be tantamount to refoulement.
43. The Guidelines embrace this interpretation of a “place of
safety” and state that in situations involving asylum seekers and
refugees rescued at sea, disembarkation in territories where their
lives and freedoms would be threatened should be avoided.
Note In
the list of international law references and principles set out
in the Guidelines, specific reference is made to the principle of
non-refoulement as codified in Article 33 of the 1951 Convention
relating to the Status of Refugees.
Note
44. This interpretation was reiterated by the IMO Facilitation
Committee in January 2009, when it issued a set of principles to
states to consider with a view to harmonising their disembarkation
procedures.
Note The Principles relating
to Administrative Procedures for Disembarking Persons Rescued at
Sea
NoteNote invite states to incorporate a
number of priorities into their disembarkation administrative procedures.
Importantly, the IMO indicated that states should not require shipmasters
to conduct any procedures secondary to immediate assistance, apart
from procurement of basic identification information, aboard the
rescuing vessel. States should ensure that asylum seekers are guaranteed
utmost security and confidentiality of their identity, and that following
disembarkation they are referred to the competent asylum authorities
for their asylum applications to be processed. Finally, states are
urged to ensure respect for the international protection principles
enshrined in the 1951 Convention relating to the Status of Refugees
and the United Nations Convention against Torture (CAT) throughout
disembarkation procedures.
45. Beyond operational necessity, the relevance of establishing
a comprehensive definition of “place of safety” that is recognised
and implemented by states is evident in the context of evaluating
whether the disembarkation of rescued or intercepted persons in
a specific third country, such as for example Libya, Senegal and
Mauritania, is deemed to be in conformity with a state’s obligations
under international human rights law. In the above analysis on the
applicability of international rights norms on the high seas, particularly regarding
the extraterritorial application of the non-refoulement principle,
the conclusion was reached that once a state exercises jurisdiction
over persons or vessels, it is required to ensure the protection
of their fundamental human rights. This requirement entails protection
from non-refoulement in the sense of the 1951 Convention on the
Status of Refugees, the European Convention on Human Rights, the
ICCPR and CAT.
Note The evaluation as to whether an
intended place of disembarkation is a safe one would therefore entail
an extensive analysis into its general human rights situation, coupled
with a more specific examination of the particular treatment reserved
for the intercepted persons.
46. For example, concerns were raised in relation to Libya in
the context of the push-back policy implemented by Italy throughout
2009 and a push-back incident involving Malta in July 2010.
Note Concerns included the fact that
Libya is not a signatory to the 1951 Convention on the Status of
Refugees and that it has not established asylum procedure or institutions
responsible for asylum and refugee matters. Emphasis is also placed
on the fact that conditions in Libya’s detention facilities are
particularly harsh and that sub-Saharan Africans are often victims
of widespread discrimination and racial violence.
Note With the expulsion of UNHCR in mid-2010,
it seems that the situation for asylum seekers and for the refugees
previously recognised under UNHCR’s mandate has been exacerbated.
Note Indeed, with the situation in Libya
deteriorating following the civil war that broke out in February
2011, refugees and asylum seekers have found themselves in acute
danger, prompting UNHCR to appeal to the international community
for their urgent resettlement.
47. A similar analysis is required in relation to the Frontex
joint operations hosted by Spain and conducted off the West African
coast. According to Frontex statistics,
Note 5 969 persons were diverted back
to the closest shore (Senegal or Mauritania) during the Joint Operation
HERA 2008, yet the fate of the diverted persons remains unclear,
particularly in terms of whether their human rights were protected
by the Spanish, Senegalese or Mauritanian authorities. Since the
interception modalities remain unclear, it is not possible to ascertain
the precise manner in which boats were actually diverted from their
original route and returned to the closest shore.
Note No
information has been provided as to whether intercepted and diverted
asylum seekers were given the opportunity to present their asylum
claims and, generally, what treatment was reserved for the diverted persons.
Despite Frontex’s assertions that “a Mauritanian or Senegalese law
enforcement officer is always present on board of deployed member
states’ assets and is always responsible for the diversion”, the
above analysis emphasised that Spain remains responsible to act
according to its international human rights obligations. Furthermore,
it is also interesting to note that since Frontex refers to the
assets of member states participating in the joint operation, it
is therefore not only Spain that is bound to adhere to its human
rights responsibilities, but all the member states involved in Operation
HERA 2008.
Note
48. As outlined below, recent European Union efforts at harmonising
search and rescue practices through the adoption of appropriate
guidelines have also incorporated a definition of “place of safety”
that takes into account the principle of non-refoulement, including to the extent that rescued
persons should be given the opportunity to express their fear of
being returned to the intended point of disembarkation.
3.3 Establishing disembarkation
responsibility
49. With the amendments to the SAR and SOLAS Conventions,
it was hoped that clarity could be brought to complex situations
and that states would have the tools to harmonise their practices.
Yet an indirect and definitely unintended consequence of the amendments
was the creation of further disagreement, especially between Italy
and Malta. Malta argued that it was not in its interests to accept
the 2004 amendments and in fact refused them. The Maltese authorities
argued that the amendments required the state responsible for the SAR
zone within which persons are rescued to be also responsible for
providing the safe disembarkation place. Malta’s concern was that
it would be obliged to assume responsibility for every person rescued
within its SAR zone.
NoteNote This is primarily due to the fact
that Malta’s SAR zone is extremely large, ranging from close to
Tunisia to Greece and covering an area of about 250 000 square kilometres.
Note Malta’s
decision not to adopt the 2004 amendments has led to a situation
whereby Malta remains bound by the SAR and SOLAS Conventions prior to
the amendments and Italy, accepting the amendments, is bound by
the new versions.
50. In substantive terms, this means that whereas Malta is bound
to ensure the disembarkation of persons rescued within its SAR zone
at the nearest safe port, Italy’s understanding of disembarkation
in the SAR regime is that this ought to occur in the state responsible
for the SAR zone. The potential for conflict is clear, particularly in
those cases where persons are rescued within Malta’s SAR zone, but
geographically closer to Lampedusa. This kind of disagreement was
the basis for the diplomatic stand-off between Italy and Malta in
April 2009, following the rescue of over 140 persons by the Turkish
cargo ship Pinar E about 41
nautical miles off Lampedusa and about 114 nautical miles from Malta.
Whilst Malta insisted the rescued persons be taken to the nearest
port, an Italian port, Italy urged Malta to take responsibility
for the persons in fulfilment of its SAR obligations.
51. After four days, Italy authorised the ship to enter Italian
waters and to disembark the rescued persons.
Note The death of a pregnant woman aboard
the ship, the rapid deterioration in the persons’ physical and psychological
conditions due to lack of sufficient water and food, increased security
risks due to overcrowding and an alleged financial loss of over
US$350 000, emphasise the urgent need for states to more effectively
co-ordinate their search and rescue efforts and prioritise the respect
for human life in all their activities at sea.
Note
52. These divergent approaches to the interpretation of states’
SAR obligations were not limited to Italy and Malta, but also included
other European Union member states to the extent that the organisation
of Frontex joint operations had become problematic.
Note In response to this situation,
in April 2010 the European Union adopted the “Frontex Guidelines”
with a view to “provide for better co-ordination among the member
states participating in the operations with regard to such situations
and to facilitate the conduct of such operations”.
NoteIn substantive terms, the Guidelines
reiterate the principle of non-refoulement, particularly in relation
to disembarkation responsibilities, and underline the duty to inform
rescued persons of the intended place of disembarkation so as to
give them the opportunity to express their possible fear of being
returned to that place.
Note The Guidelines are controversial
since they include a provision stating that when disembarkation at
the country of departure is not possible, this should happen in
the member states hosting the Frontex Operation.
Note The future of the Guidelines remains uncertain
since they are currently being challenged before the European Court
of Justice (ECJ), yet they remain valid pending the outcome of the
case.
Note
53. A further unresolved aspect of the SAR regime that raises
serious human rights concerns relates to situations where the state
responsible for the SAR zone is unresponsive to distress calls and
fails to fulfil its obligation to co-ordinate search and rescue
operations. Within the European context, such incidents have been seen
in the central Mediterranean region where persons rescued within
Libya’s SAR zone were denied access to Maltese territorial waters
on the basis that Libya was the state responsible for the SAR zone.
The incident of the
Francisco y Catalina in
July 2006 is a clear example of the impact of such a scenario on
the lives of the rescued, and rescuing, persons.
Note In fact, it seems that it is on
the basis of the solution brokered by UNHCR during this incident
that the southern European states included in their above-mentioned
Paper the proposal to establish a responsibility-sharing scheme
for persons rescued outside the SAR zone of a European Union member
state.
Note
3.4 Combating trafficking
and smuggling
54. Two other international maritime instruments requiring
inclusion in this discussion are the so-called “Palermo Protocols”.
Note As protocols to the United Nations
Convention against Transnational Organized Crime (2000), the two
protocols embody international efforts to combat the crimes of smuggling
and trafficking by providing a detailed definition of the two terms
and establishing an international co-operative framework aimed at
criminalising and preventing activities falling with the definitions’
purview.
Note
55. The Protocols require states parties to strengthen border
controls in order to detect and prevent smuggling and trafficking.
Note In order to effectively fulfil these
obligations, states are authorised to deny entry to persons implicated
in these offences,
Note to suppress the use
of the vessels used for such purposes and also to board and search
them.
Note Thus
the protocols grant states far-reaching authority over vessels with
regard to which there are reasonable grounds to believe they are
being used for the purposes of smuggling or trafficking of persons.
Since, as noted above, the sea crossings made by migrants, asylum
seekers and refugees are in the vast majority of cases made in an
irregular manner through smuggling or trafficking networks, southern European
states have the right to intercept such vessels in the interests
of combating crime. Yet the protocols do not grant states the right
to exercise this
de jure jurisdiction
in an absolute manner.
56. Together with a number of provisions obliging states to ensure
the protection and humane treatment of smuggled and trafficked persons,
Note both
protocols include important saving clauses that effectively incorporate the
duty to respect the fundamental principle of non-refoulement in
all measures adopted by states under the protocols. Article 14(1)
Note of the Trafficking
Protocol states that:
“Nothing
in this Protocol shall affect the rights, obligations and responsibilities
of States and individuals under international law, including international
humanitarian law and international human rights law and, in particular,
where applicable, the 1951 Convention and the 1967 Protocol relating
to the Status of Refugees and the principle of non-refoulement as
contained therein.”
57. The effective impact of these saving clauses is that the fact
that a vessel is flagless and engaging in smuggling or trafficking
does not permit states to rely on the protocols in justification
of interception measures that result in a breach of the principle
of non-refoulement or of any other fundamental human right.
Note Together with the conclusions
reached above regarding the extraterritorial application of international
human rights obligations and of the principle of non-refoulement,
the Palermo Protocols’ saving clauses strengthen the view that interception
at sea of asylum seekers, refugees and migrants must be conducted
with a full adherence to international human rights standards.
3.5 The European Union
58. At a regional level, the principle of non-refoulement
is also enshrined in one of the European Union’s main instruments
relating to maritime law. A necessary corollary of the creation
of an area without internal borders in order to ensure the free
movement of persons was the need for the European Union to ensure
a common policy on its external borders.
Note Towards achieving these aims, the
“Schengen Borders Code”
Note was adopted as the main instrument
through which member states would, on a common basis, take all necessary measures
to manage the European Union’s internal and external borders. Under
the Code’s Chapter II, member states are required to control external
borders through,
inter alia, checks
of persons attempting to enter their territory and border surveillance
activities, with Article 13 stipulating that third-country nationals
who do not fulfil the established entry requirements are to be denied
entry to European Union territory. This statement is nonetheless
expressly qualified in the same article, providing that this obligation
to refuse entry to third-country nationals not fulfilling entry
requirements “shall be without prejudice to the application of special provisions
concerning the right of asylum and to international protection
”.NoteIt
should also be further reiterated that the right to seek asylum
is included in the Charter of Fundamental Rights of the European
Union.
Note
59. The Schengen Borders Code is complemented by a handbook, intended
for use by the national authorities involved in border controls
and to be included in the member states’ border management training programmes.
Note The relevance of the Schengen Handbook
to the present analysis is its clarification of the principles and
procedures to be followed by border officials in a number of scenarios,
essentially:
Note
- All persons wishing to seek
international protection must be given the opportunity to do so;
- Persons are considered applicants for international protection
when fear of serious harm is expressed in relation to return to
his/her country of origin or former habitual residence;
- No particular form is required for this expression of
fear as long as the key component – fear – is expressed;
- In case of doubt, the decision as to whether a person
is attempting to request international protection shall not be taken
by the border official alone, but the official is obliged to consult
the national authorities responsible for such applications;
- A number of procedural guarantees are clearly stipulated
(use of interpreters where necessary, provision of relevant information,
etc.).
3.6 Frontex
60. Whilst it is not the aim of this report to provide
an evaluation of this European Union agency, attention must nonetheless
be given to its present and potential role in the interception at
sea of asylum seekers, refugees and migrants.
61. At present, the Joint Operation HERA is the only operation
in which intercepted vessels are diverted back to the closest shore.
Diversions were never included in the operational arrangements for
the central Mediterranean joint operations, yet it is not sure whether
this is due to a policy of the member states hosting or involved
in the operations or whether it was due to the lack of support and
agreement from the relevant North African states, particularly Libya.
In this regard, although the recent announcement by the European Commission
on the finalisation of a Migration Co-operation agenda with Libya
does not include any reference to the role of Frontex, particularly
in relation to diversions of intercepted vessels, it is yet to be
seen what role will be allocated to Frontex and to its joint operations.
This co-operation has however been temporarily suspended in the
light of the ongoing events in Libya, with the European Union institutions
acknowledging the need to re-evaluate their asylum policy in relation
to their relations with third countries deemed to be “unsafe”.
NoteNote
62. The above comments on HERA 2008 emphasised Spain’s obligation
to ensure that its interception measures are conducted in a manner
that is in conformity with its international human rights obligations.
This was also reiterated in relation to the other member states
participating in the operation. Yet in this regard Frontex’s responsibility
and accountability remain elusive. In joint operations, Frontex
co-ordinates member states’ efforts and resources and provides technical
expertise so as to maximise the operation’s efficiency and success,
Note whilst
the participating member states decide on the operational aspects
including rules on disembarkation, the assumption of responsibility
over rescued persons and also diversions. As an Agency of the European
Union, Frontex is obliged to act in a manner that is consistent
with the Union’s stated fundamental values, as contained in the
founding Treaties and widely reiterated in the European Union
acquis. The nature, extent or import
of Frontex’s decision-making power or operational authority does
not minimise or rule out these obligations to respect fundamental
human rights in its own actions and to ensure their adherence in
all the activities it co-ordinates and facilitates. This understanding
is also confirmed in the Charter of Fundamental Rights of the European
Union (Article 51).
63. Possibly in response to such concerns, the Commission’s proposal
to amend the Frontex Regulation, presented in February 2010, includes
a number of provisions aimed at “strengthening the safeguards to guarantee
full respect of fundamental rights.”
Note It is proposed that all Frontex
activities shall be conducted in accordance with fundamental rights
and international protection obligations.
Note This is a general statement that reaffirms
the above conclusions without adding any substantive element. It
is nonetheless a welcome inclusion, the strength of which will only
be evidenced in its application. The same may be said of the proposal
to include in the evaluation of Frontex’s activities, performed
every five years, an assessment of the extent to which the Charter
of Fundamental Rights was respected.
Note In spite of these affirmations, the proposal
does not indicate what measures are to be taken to ensure compliance
with these rules.
Note In terms of
training, the European Commission proposes that all Frontex staff
and member state border guards and other personnel concerned shall
receive training in fundamental rights and access to international
protection.
Note It is worth noting in this context
that on 31 March 2011, Frontex’s Management Board endorsed the Agency’s
Fundamental Rights Strategy.
Note
64. The proposal also gives Frontex a greater role in the design
and conduct of joint operations by requiring that the project’s
operational plan be drawn up by Frontex’s Executive Director and
agreed upon jointly by the Executive Director and the host member
state. According to the proposal, this operational plan should cover elements
such as the project's
modus operandi,
its duration, geographical area of coverage and, specifically for
sea operations, “specific requirements regarding the applicable
jurisdiction and maritime law provisions concerning the geographical
area where the joint operation takes place”.
Note It is opportune to reiterate that the Frontex
Guidelines discussed above form part of this operational plan, thereby
incorporating the broader definition of “place of safety”.
Note
65. Following a formal request for assistance by the Italian Ministry
of the Interior received by Frontex on 15 February 2011 regarding
the extraordinary migratory situation in Lampedusa, Joint Operation
HERMES 2011 started in February 2011 with the deployment of additional
aerial and maritime assets from Italy and Malta. According to an
official communication by Frontex “The Italian Government requested
assistance in strengthening the surveillance of the European Union’s
external borders in the form of a Joint Operation. Additionally,
Italy requested a targeted risk analysis on the possible future
scenarios of the increased migratory pressure in the region in the
light of recent political developments in North Africa and the possibility
of the opening up of a further migratory front in the Central Mediterranean
area”.
Note
66. In the context of this operation, European Commissioner Cecilia
Malmström clearly stated that the Frontex mission would be governed
by European legislation and that the interdiction and push-back
of migrants encountered at sea was not permitted.
Note This Commission statement has the
potential of having serious repercussions on the development of
not only the European Union’s asylum policy but also particularly
on the relations of European Union member states with third countries
that are unwilling or unable to guarantee the adequate respect and
protection of the rights of migrants and asylum seekers. Specifically,
the application of this statement to the above-mentioned Spanish
and Italian maritime activities is yet to be established. It ought to
be noted, however, that despite this statement, on 14 March 2011,
the Italian authorities denied entry to about 1 800 persons aboard
the ship
Mistral Express.
The vessel eventually made its way to Morocco.
Note
4 Recommendations
67. The above analysis provides a summary of the main
relevant parameters within which states may and should operate when
implementing interception measures at sea. Obligations emerging
from various international and regional maritime law instruments
were highlighted and aligned with or against responsibilities imposed
by international law, including international human rights and refugee
law. This analysis was presented against the backdrop of mixed flows
of persons leaving African shores and attempting to reach and access
European territory.
68. It is necessary at this stage to draw a number of conclusions
from the above observations and extract a set of recommendations.
These are primarily addressed to states, but also indirectly to
relevant international and regional institutions and other actors.
68.1 States should ensure that their
border management policies and activities, including interception measures,
recognise the mixed composition of the flows of persons attempting
to cross their maritime borders and ensure that all persons affected
by these policies and activities are not deprived of their fundamental
human rights. Interception measures must include clear guidelines
on the identification and referral of persons who may need international
protection, and on other measures potentially affecting rights,
such as deprivation of liberty, restriction on freedom of movement,
etc.
68.2 In all instances where states exercise their de jure or de
facto jurisdiction over intercepted persons and vessels,
they must adhere to their obligations under international law, including international
human rights and refugee law, including protection from refoulement, whether the interception
measures occur within their own territorial waters, in those of
another state on the basis of an ad hoc bilateral agreement, or
on the high seas. Standardised procedures must be developed to guarantee
respect for fundamental rights and include a system of prompt, automatic,
impartial and independent oversight of operations.
68.3 International agreements upon which interception operations
are based must be publicly available and subject to democratic scrutiny.
They must also be subject to independent supervision of their application.
68.4 All states or agencies involved or co-ordinating interception
operations must keep records regarding nationality, age, personal
circumstances and reasons for passage of those intercepted.
68.5 All states currently intercepting migrants, asylum seekers
and refugees at sea should immediately refrain from such practices
where these result in direct or indirect refoulement.
68.6 Disagreements over the responsibility for rescued persons
endanger the lives, security and livelihood of the rescued and rescuing
persons, and could discourage seafarers from rescuing persons in
distress at sea. The prompt disembarkation of rescued persons at
a place of safety should be a priority of all search and rescue
regimes. Border operations at sea should contain clear guidance
concerning the place of disembarkation.
68.7 Disembarkation of rescued persons should be made at a
place that provides for their protection and assistance through
national referral mechanisms or equivalent, including to asylum
procedures, and for the assessment of immediate needs and that does
not present a risk to their fundamental human rights. Persons in
need of international protection should be granted access to a fair
and effective asylum procedure where their claims can be properly
determined.
68.8 In the conduct of border surveillance activities, whether
in the context of prevention of smuggling or trafficking or of border
management, all intercepted persons must be treated humanely and
their human rights must be respected at all times, including the
principle of non-refoulement.
68.9 The arrival by sea of mixed flows of persons – directly,
following a search and rescue operation or in the context of border
management activities – presents serious challenges to coastal states.
The international community should provide assistance to these states
in a spirit of solidarity and responsibility-sharing.
68.10 States should, within the context of the International
Maritime Organisation, make concerted efforts to ensure a consistent
and harmonised approach to international maritime law through, inter alia, agreement on the definition
and content of the key terms and norms.
68.11 An Inter-agency group should be established with the aim
of setting clear policy priorities, providing guidance to states
and other relevant actors and monitoring and evaluating the use
of maritime interception measures. The group should include the
International Maritime Organisation, the United Nations High Commissioner
for Refugees, the International Organisation for Migration, the
Council of Europe, Frontex and the European Asylum Support Office.
