On the EU’s ‘New Sense of Urgency’ to Violate International Law

The following post provides for a brief summary of and comments on the Press Conference of the Council of European Union’s meeting on Foreign Affairs of 20 April 2015.

Following recent events in the Mediterranean resulting in the death of a minimum number of 1129 individuals from February 2015 – April 2015, a joint session between foreign and interior ministers discussing migration issues took place in Luxembourg. European Union (EU) High Representative for Foreign Affairs and Security Policy, Federica Mogherini, said:

“Today, I think we gave a strong EU reaction to the tragedies we have seen in the last few days. We need to act fast and act together. Otherwise we might face a tragedy for Europe in the coming months. We managed to gather within 24 hours 41 foreign and interior ministers. This signalises a new sense of urgency and a new level of European awareness in fighting human trafficking and human lives, finally so.”

In short, Ministers agreed to reinforce the fight against trafficking of human beings, to strengthen EU action to save lives at sea as well as enhance support for countries on the front line, by sharing the resettlement of refugees. In addition, diplomatic action will be undertaken to do more to resolve the root causes of migration, including conflicts, poverty and human rights violations.

However, presented today were policies full of rhetoric with broad meaning and a shocking lack of action. Hence the question remains: what is their concrete plan of action?

A 10 point plan was presented by EU Migration Commissioner Dimitris Avramopoulos and consists of the following decisions which will all be considered at the Extraordinary European Council Meeting on the situation in the Mediterranean on 23 April 2015:

1) Reinforce the on-going operation by increasing the funding for the control operation at sea ‘Triton’, the EU border agency ‘Frontex’ (while it was mention that the Dublin system must undergo further study followed by potential changes accordingly) and the land operation ‘Poseidon’.

The result will lead to a further expansion of  the militarisation of border security at the external borders of Europe rather than a humanitarian response to a humanitarian crisis. Europe needs to restore its drastic balance between security and rights. In other words, while States have a right and duty to protect their borders, they are also under an obligation to respect international human rights standards to grant access to asylum and protection.

2) Capture and destruction of vessels used by smugglers and traffickers.

After a question asked by a journalist from the Süddeutsche Zeitung, this action was clarified to be a political decision in favour of a ‘civil military operation’ similar to Atalanta, a European Naval Force countering piracy at the coast of Somalia. The operation would be led by the UK Navy. Although Avramopoulos pointed out that the legal mandate of this operation still has to be drafted, its drafters will face huge difficulties not to breach international law. Contrary to the situation at the coast of Somalia where piracy was declared to be a threat to international peace and security and Chapter VII powers were invoked, the same legal basis does not exist for the situation of trafficked migrants in the Mediterranean. A UK-led European Naval Mission would, if exercised regardless of the lack of a Security Council invocation, breach international law since Article 2(4) reads

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

In addition to this,  if this proposal point goes through, migrants’ lives might be further in danger unless the capture and destruction of the vessels takes place once the migrants have been safely rescued by a rescue mission (N.B. no funding in this 10 point plan is allocated to rescue missions).

Anders Lustgarten’s recent commentary Refugees Don’t Need Our Tears. They Need Us To Stop Making Them Refugees raises a couple of vital points to be considered

 (…) Forget the fact that this society wouldn’t work without migrants, that nobody else will pick your vegetables and make your latte and get up at 4am to clean your office. Forget the massive tax contribution made by migrants to the Treasury. This is not about economics. Far too often, even the positive takes on migration are driven by numbers and finance, by “What can they do for us?”. This is about two things: compassion and responsibility.

In all the rage about migration, one thing is never discussed: what we do to cause it. A report published this week by the International Consortium of Investigative Journalists reveals that the World Bank displaced a staggering 3.4 million people in the last five years. By funding privatisations, land grabs and dams, by backing companies and governments accused of rape, murder and torture, and by putting $50bn into projects graded highest risk for “irreversible and unprecedented” social impacts, the World Bank has massively contributed to the flow of impoverished people across the globe. The single biggest thing we could do to stop migration is to abolish the development mafia: the World Bank, International Monetary Fund, European Investment Bank and European Bank for Reconstruction and Development.

A very close second is to stop bombing the Middle East. The west destroyed the infrastructure of Libya without any clue as to what would replace it. What has is a vacuum state run by warlords that is now the centre of Mediterranean people-smuggling. We’re right behind the Sisi regime in Egypt that is eradicating the Arab spring, cracking down on Muslims and privatising infrastructure at a rate of knots, all of which pushes huge numbers of people on to the boats. Our past work in Somalia, Syria and Iraq means those nationalities are top of the migrant list.

Not all migration is caused by the west, of course. But let’s have a real conversation about the part that is.

3) Encouragement for Europol, Frontex, EASO and Eurojust to work closely together in order to exchange information on the modus operandi of human traffickers, detecting their funds and assist in their investigation.

While human traffickers should certainly be addressed within this proposal, they should not constitute the main focus of this 10 point plan. There are reasons to suggest that the Council, while they are certainly not, treat the traffickers as the cause of this tragedy. Instead, the Council’s attention needs to be shifted to increase the funding and mandate for rescue missions, create legal ways for migrants to find protection they deserve under the 1951 Refugee Convention and work towards fighting economic and social inequality, wars and corruption in the migrants’ home countries.

4) Establishment of teams in Italy and Greece for joint processing of asylum applications with the goal of processing cases within 2 months from their lodging.

This point provides for a clear example of the imbalance between security and rights in the European Union’s idea of dealing with the issue of migration. Reducing the quality in assessing applications for the profit of expediency is a violation of the EU’s own and international human rights standards.

5) Member States will ensure fingerprinting of all migrants, screened and recoded in an effective manner.

This procedure increasingly violates the right to privacy protected under Article 8 of the European Convention of Human Rights which is to be applied equally to all individuals in one of the Council of Europe Member States. The practice of this procedure also reminds of the procedure applied when criminals enter prison. Now let us think about the discriminating effect of this measure.

Some mainstream politicians are surfing on the racist and xenophobic waves sweeping over Europe, often in connection with national and regional elections.

6) Consideration of options for a relocation emergency mechanism.

7) An EU pilot project on resettlement on voluntary basis for Member State which offers ‘a number of places’ for individuals in need of protection.

As the project is on voluntary basis this measure merely reflects a mild stimulation for all Member States to offer more places for resettlement within the EU.

8) A new return plan for irregular migrants ensuring ‘a rapid return’ of irregular migrants coordinated by Frontex. Specifically, this means more return flights and efforts to inform migrants in transit countries of the ‘unpleasant journey back’ in case their application will be denied.

Article 33 (1) of the 1951 Refugee Convention reads

No Contracting State shall expel or return (‘refouler’) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The principle of non-refoulement is upheld in, among others, Article 7 of the 1966 International Covenant of Civil and Political Rights, Article 3 of the 1958 Convention Against Torture, Inhuman or Degrading Treatment or Punishment and Article 3 of the 1951 European Convention on Human Rights as been interpreted as to include the principle in Soering v UK (1989), para. 88; Vilvarajah v UK (1991), para. 73-73, 79-81; Chahal v UK (1996), para. 75.

The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention.

In terms of European law the principle is reflected in Recital 2, Article 20, 25(2)(e), 26(b), 27(1), 29(b), 36(4), Annex II Procedures Directive 2005/85/EC; Recitals 2 and Article 21 Dublin II Regulation (EC) No 343/2003;  Recital 2 Qualification Directive 2004/83/EC; Recital 2 Reception Conditions Directive 2003/9/EC.

By decreasing the quality of assessment, pushing for speedier returns and expressing a certain bias through ‘ensuring a rapid return’, the European Union is violating the principle of non-refoulement. Thus, not only its own laws but also customary international law.

9) Enhance partnership with three countries around Libya: Tunisia, Egypt and Niger. It was explicitly mention that the externalisation initiatives in Niger have to be stepped up.

10) Deployment of Immigration Liaison Officers (ILO) in key third countries, to gather intelligence on migratory flows and strengthen the role of the EU Delegations. In other words, a further externalisation of the EU border to ensure less migrants even reach Libya and thus the EU.

As at this point, I am truly lacking the words to express my discontent and despair. The European Union is, and has been for a long time, on the wrong path. Returning to the words of Lustgarten

The EU’s de facto policy is to let migrants drown to stop others coming.

Policy makers comfortably ignore that migrants do not have a choice on whether they will come or not. They will, since what is forcing them leave is dictaroship, war or extreme poverty.

– Alexandra Lily Kather