CASTELBUONO, Sicily (CN) — The thousands of asylum-seekers who cross the Mediterranean Sea each year in dinghies and boats enter a legal, and all-too-often deadly, black hole when they set sail from Africa for Europe, legal scholars say.
This is because international and European laws are silent on key questions about Europe’s responsibilities in searching for and rescuing refugees and immigrants at sea outside the territorial waters of Europe.
These legal gray areas allow an increasingly anti-immigrant Europe to craft strategies to remain within the strict letter of the law while creating barriers to keep out asylum-seekers and immigrants.
Crucially, scholars say European Union nations may not, technically, be violating international and EU laws when they refuse to admit asylum-seekers picked up from the Mediterranean by private ships, such as humanitarian ships that have plied the Mediterranean in search of asylum-seekers.
“As long as they are on the high seas, there is probably no legal obligation by anyone to take these people in,” said Melanie Fink, an international and EU law expert at the Europa Institute at Leiden University. “It is a huge loophole left by the law.”
Such is the case with Italy, which in June began refusing to allow humanitarian ships from bringing people rescued from the sea to its ports.
“From a humanitarian perspective, this policy is deplorable,” Fink said. But, she added, “Italy did what it was required to do under the law of the sea.”
It’s an uncomfortable and embarrassing scenario, but one Europe is sidestepping as humanitarian vessels are being forced out of the Mediterranean by a mixture of strategies, which have opened up other legal fights.
Likewise, scholars say, European nations are not violating laws by not actively searching for asylum-seekers attempting to cross the Mediterranean for Europe.
Presently, this is Europe’s approach. Under Operation Sophia, the EU deploys military ships in the Mediterranean, but the primary goal is to stop human traffickers, not rescue asylum-seekers. Operation Sophia did not return a request for comment from Courthouse News.
In effect, experts say, this allows European authorities to stand by and not aid boats full of asylum-seekers so long as they have not reached European waters, even though there’s a chance the boats may sink and people drown.
“A policy fully compliant with international law can tolerate large-scale migrant deaths at sea,” wrote Itamar Mann, a University of Haifa law lecturer and expert on maritime laws, in a recent paper for the Journal of Maritime Law.
Mann called it a “form of killing by omission.”
“Rather than holding the perpetrators legally accountable, law itself must be held morally and politically accountable for this kind of extra-jurisdictional killing,” Mann wrote.
For a brief period, this was not the attitude of Italy.
In October 2013, following public outrage over the drowning of about 300 asylum-seekers off the coast of the Sicilian island of Lampedusa, Italy sent out its navy and coast guard to search for refugee boats in an operation known as Mare Nostrum.
But that lasted only one year, and Italy and Europe have since then financed and aided Libya’s coast guard to search for asylum-seekers leaving for Europe and take them back to Libya — a return to a policy Italy had engaged in with the Libyan regime of Moammar Gadhafi.
But this is highly problematic, legal experts say.
Since the fall of Gahdafi’s regime in 2011, chaos has engulfed Libya, a North African country about 184 miles south of Europe’s closest port — the island of Lampedusa.
The vast majority of refugees and immigrants seeking to reach Europe and its legal protections disembark from Libya, often by paying human traffickers.
Libya is hardly a functioning and humane state. The European Court of Human Rights, in a landmark ruling in 2012, and Italian courts have ruled that Libya and its detention centers are not safe places for asylum-seekers to be returned to. People rescued at sea and taken back to Libya, as the Libyan coast guard does, likely will be placed into inhumane conditions, the courts ruled.
However, even though Europe aids Libyan authorities, so long as European officials are not physically involved in a rescue, they are, arguably, not subject to human rights laws.
At least, European law is silent on that matter. But this is a gray area, under consideration at the European Court of Human Rights. The court is considering whether to rule in a case involving an incident in November 2017 when the Libyan coast guard and a vessel with the humanitarian German group Sea-Watch were both involved in a rescue of about 120 people aboard a dinghy.
It was a “messy and partly confrontational” rescue, according to Moritz Baumgärtel, an assistant professor in law professor at Utrecht University.
More than 20 people drowned; 47 were taken back to Libya and 59 were taken aboard the Sea-Watch ship and taken to Italy.
After that incident, the Global Legal Action Network sued Italy in the European Court of Human Rights, charging that even though Italian authorities were not at the scene of the incident its agreement to cooperate with Libya effectively made Italy complicit in sending asylum-seekers back to Libya, where they faced human rights violations.
Violeta Moreno-Lax, a lead lawyer in the case and senior lecturer at Queen Mary University of London, argues that Italy cannot shirk its human rights responsibilities when it collaborates with Libya. She goes further, and said Italy also violates the law when it closes its ports to nongovernmental ships carrying asylum-seekers. She said in an email that closing ports to ships carrying people in distress or danger is against the Convention on the Law of the Sea.
Baumgärtel said her case has “far-reaching implications.”
The court could find Italy in violation of human rights laws, but it could also rule the other way or recuse itself, leaving intact a policy that human rights advocates say is illegal.
“The big question mark is if the (European Convention on Human Rights) is applicable,” Fink said.
The gray areas, then, lie between what happens between Libya and its waters and the seas off the shores of Europe.
Under an international convention, nations set up search and rescue zones off their shores and each nation is responsible to coordinate rescues inside its zone. But beyond that, the law is anything but certain.
“Once you get into the high seas, the legal case changes,” Baumgärtel said.
In the open sea, the United Nations Convention on the Law of the Sea applies. Under this convention, captains are obliged to rescue anyone in distress and take them to a safe place. But this provision leaves many questions open, scholars say.
Meanwhile, Europe is looking at new options on how to handle asylum-seekers — and these new schemes would open up other legal quandaries.
Recently, Austrian and Italian politicians proposed processing asylum-seekers aboard ships rather than on shore. And EU leaders are seeking to set up asylum processing centers in African countries too.
Fink said Europe could be trying to avoid human rights obligations by setting up such centers that allow them to “do things abroad that you can’t do at home.”
The legal gray areas in the Mediterranean reveal that international laws cannot be expected to ensure that people fleeing human rights abuses are given refuge, Baumgärtel said.
“It would be short-sighted,” he said, “to believe these are issues that can only be resolved by legal actions without the necessary changes in the political stance by governments and society.”