Solidarity “A La Carte”: The EU’s Response to Boat Migration

Opinio Juris

[Jean-Pierre Gauci is the Arthur Watts Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law (UK) and the Director of The People for Change Foundation (Malta). Eleni Karageorgiou, is a Postdoctoral Fellow, Department of Law at Lund University and Researcher at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Sweden).]

Two shipwrecks close to the Libyan coast on 18 April 2015, which led to over 1,100 deaths followed by high numbers of refugee arrivals to Europe, mainly from Syria, resulted in a ‘crisis’ response by the EU and its Member States. Several commentators, including the present authors, framed the situation as a crisis of solidarity, triggered by particular policies (see e.g. here, here, and here). The Emergency Relocation Mechanism, the EU–Turkey Statement, the reintroduction of internal border controls and the intensification of external border controls, combined with restrictive individual state policies (see e.g. Sweden, Austria), have resulted in downgrading protection and in shifting responsibilities to particular countries in and outside Europe.

The crisis was one of solidarity on (at least) three levels – a lack of a coherent application of the CEAS amongst European Union Member States (normative); a lack of a fair sharing of responsibilities between EU and third countries and between Union Member States (physical/financial); and the shrinking of human rights obligations and lack of fairness towards the men, women and children who were losing their lives to reach a place of safety (humanitarian). Importantly, states sought to frame the crisis as one relating to the deaths at sea ‘caused’ by human smugglers, with closed borders presented as a way to ensure that individuals and families are not ‘encouraged’ to take the perilous journeys by pull factors (see the 23 April 2015 European Council statement and a critical analysis here). Famously, the UK Government refused to provide further rescue efforts on the pretext that rescue was acting as a pull factor. Anti-smuggling efforts were framed as lifesaving efforts whilst offerings for resettlement and other legal pathways to protection remained woefully inadequate.  

Looking back over the past four years, the assessment that Europe was experiencing a crisis of solidarity becomes increasingly apt. Whilst the number of asylum applicants may have declined from the 2015 levels (there were 581,000 first time applicants in 2018 compared to over 1.2 Million in 2015), migration dynamics have predictably shifted with the central Mediterranean once again taking the centre stage. Issues around the sharing of responsibility between EU Member States, the denial of access to protection for people who need it, and relations with third countries (primarily Libya) to curb migration remain at the forefront of the debate. Instead of moving towards measures of effective solidarity and fair responsibility sharing, the European Union has continued on its path of the further securitisation of Europe’s borders and has increased cooperation with states with problematic human rights records, often with lethal results.

A number of NGOs have sought to fill the gap left by States in the rescue of people at sea. Over the past years there has been several incidents in which NGO vessels conducting search and rescue (SAR) in the Mediterranean (e.g. Sea-Watch, Sea Eye, Mare Jonio, Aquarius, Lifeline) are denied entry to EU countries’ ports and disembarkation of the rescued, while legal action is being taken against individuals and NGOs assisting migrants’ access to safety. This situation has been framed as a ‘disembarkation crisis’. We argue here that this is not a new or different crisis but merely an extension of the 2015 solidarity crisis which has since taken on a degree of nuance worth acknowledging and analysing. Simply put, partial and circumstantial solidarity, coupled with coercive exclusionary practices, have replaced principled solidarity of the type required by the EU Treaties.

One such nuance is reflected in a number of ‘temporary’ arrangements between frontline states where rescued migrants seek refuge (e.g. Malta) and other Member States willing to share protection responsibilities by receiving the rescued. The model of solidarity playing out here is one that takes the form of a ‘coalition of the willing’, relying on the voluntary contributions of the willing countries, and allowing other countries within the EU to avoid exercising solidarity. The application of the 2015 emergency relocation decision -even in its watered-down version and despite it being binding and imposing mandatory quotas on all Member States, provided an example of such rationale highlighting the lack of a consensus between EU Member States on how solidarity, as enshrined in Article 80 TFEU, should be interpreted and applied in times of an ‘emergency’. Some states, in particular, imposed discriminatory conditions while others sought to challenge the Council decision before the CJEU (Joined Cases C‑643/15 and C‑647/15). In this ‘coalition of the willing’ model, solidarity is ad hoc, driven by current pressures and diverging agendas, leading to a perpetuation of the crisis by creating a new situation of uncertainty. Unfortunately, ad hoc, emergency driven, partial solidarity remains the hallmark of the EU approach and yet contradicts the foundational promise of the European Union as a body that will provide a unified response, considering the interests of all EU countries and being fair to third country nationals. In addition, this is against the letter and spirit of Article 80 TFEU which requires the EU policies on asylum, migration and border management to be based on a fair sharing of responsibilities. Whilst the agreement announced earlier this week led by France and Germany purports to address some of the uncertainty of the situation in the Mediterranean, it does so to the detriment of the principled solidarity that is both needed to find an equitable solution to the migration situation and required by the EU Treaties.

Over the past months, we have seen a range of situations where ad hoc arrangements are negotiated at the last minute, often involving rescue vessels being denied entry to port and disembarkation until such an arrangement is finalised. People’s lives are put on hold and at risk in direct or indirect attempts to pressure other Member States into taking up some form of sharing of responsibility. Incidents off the shores of Malta and Italy illustrate the risks of this approach. As various commentators noted, Malta and Italy have been using the fact that these individuals were out at sea, in grave danger, as a bargaining chip towards securing some form of responsibility-sharing arrangement with other Member States. Unfortunately, this situation is now all too frequent. This adds another degree of nuance to the solidarity debate. It reflects a model of ‘conditional solidarity’ whereby rescue and disembarkation are premised on promises of diverted responsibility. As a result, hard international law obligations are made conditional upon commitments by other States. Disembarkation (and access to safety) is made conditional on other States agreeing to take responsibility for rescued persons.

Moreover, it is a response whereby NGOs are having to step in to offer a basic service which States have a responsibility, along with shipmasters, to offer – the rescue of persons in distress at sea. This is hardly new – over the years we have seen NGOs and other civil society organisations offering integration support, accommodation and basic reception services to asylum seekers where States failed to do so. Over the last few years, this has been played out at sea with migrant rescues increasingly being left in the hands of a handful of NGOs whilst States retreat from their obligations in this context. The argument presented by proponents of this approach is that NGO rescues and the availability of a rescue apparatus acts as a pull factor. The reality is that hundreds and thousands of individuals – men, women and children – have lost their lives at sea because they were not rescued. These deaths are foreseeable and in the most part they are preventable (see here). These deaths are a stark reminder of the failure of solidarity on all three levels suggested above.

However, not only are these SAR NGOs left to offer this service with limited support, but what we are seeing is a system whereby private actors, individuals and NGOs, who are engaging in these ‘acts of solidarity’ are increasingly being punished or otherwise stopped from acting. Not only are they left alone to offer these services, every attempt is being made to stop them from this task. We have seen examples of this in Italy and Malta with representatives of NGO rescue vessels (and the vessels themselves) being detained, investigated and prosecuted under a number of pretexts from migrant smuggling to inadequate vessel registration. Meanwhile, political discourse continues to frame these rescues as supporting smugglers in attempts to discredit their efforts. This occurs despite calls from EU Agencies and International Organisations to facilitate such efforts and extend State rescue efforts in the Mediterranean.

Given the above, another feature of European asylum solidarity emerges, whereby protecting those who are (fortunate to have been) rescued is coupled with a wider and stronger push to stop people arriving in Europe (exclusive solidarity). This is most clearly exemplified in the EU arrangements with Libya, whereby funding is given to the Libyan ‘authorities’ to stop people leaving, and other logistical support is sent to the Libyan authorities to ensure that they intercept people who have left Libya. This is further backed by efforts by EU Member States to stop rescues in areas where Libyan forces can, upon information and instructions from those same Member States, pull back rescued persons. This is a further manifestation of the crisis of solidarity with the individuals in need of protection, not least when one considers the serious human rights violations in Libya. This model also raises questions of State responsibility for the violations in Libya.

In conclusion, given the above, we argue that informal, partial and ad hoc solidarity seems to have taken asylum policy back to a pre-CEAS intergovernmentalism approach which threatens the EU credibility and legitimacy in this area. It does so by circumventing the solidarity obligations in the EU treaties.

The structural flaws of the Common European Asylum System (CEAS) including the failure of the Dublin Regulation is the backdrop against which current trends discussed above must be understood. The situation of the rescued migrants and refugees crossing the Mediterranean should be compared to the one where hundreds of thousands of people transited the countries located in the Western Balkan route between September 2015 and March 2016 who where considered by the CJEU as irregular entrants. In both situations, the country of first reception would (as a rule) be responsible for registering them, handling their asylum claims, hosting them in case they qualify as refugees or beneficiaries of other forms of protection and arranging their return. This, in essence, constitutes the main point of friction between EU Member States and directly leads to the closed borders/ports domino.

As a final point, decisions on solidarity in the European Union cannot be read devoid of context. This includes the rise of populist groups across various EU Member States, including some countries directly affected by migration issues at the border; the failure of ad hoc, coercive measures such as the temporary relocation mechanism; the shift of some neutral or traditionally soft-touch Member States to more hardliner stances (e.g. Poland, Hungary) and the resistance to the Global Compacts on Refugees and Migration.

Outsourcing of asylum, immigration and border management responsibilities to third countries may be the EU’s and its Member States’ preferred solution, especially where intra-EU solidarity does not work. Yet, this comes at an incredibly high price for human rights and the EU’s credibility as an actor in the human rights field. Moreover, it entails higher risk and thus more uncertainty in the long run as to whether third countries will continue to ‘cooperate’ (see Turkey’s recent announcement about the suspension of the EU-Turkey deal).

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