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.