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WHAT EU COULD AND SHOULD DO TO STOP THE MEDITERRANEAN CRISIS

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2015 has been a very sad year in what concerns violations of Human Rights. And suddenly the tragedy knocked at our doors - here, at the European maritime coasts, so well-preserved and focused on their economic crisis. As ships lost at the bottom of the sea, human bodies landed at our beaches. Which were, once, human lives. Numbers are impressive. Besides some «minor» accidents, two major shipwrecks took place in April 2015, increasing the death toll in the Mediterranean sea up to 1.700. One-thousand-and seven-hundred-lives. People say that, normally, we do not feel the tragedy when it is presented to us in numbers. Numbers do not touch our hearts.
Let us tell, then, the story of the Habte family. They were running away from Eritrea, a little subsaharian country where dull tyranny rules. They sold their house to pay the traffickers, who took them in overloaded cars through the Sahara desert. During their travel, they spent days in abandoned houses. And finally they arrived to Lybia. They tried to stay there, but were treated as illegal immigrants, as undesired persons. Moreover, there is no government, and insecurity rules all over. How can a father guarantee a life to his children in a place like that?
People say that Northern Africa is a land with no solutions for anybody. There are no jobs, there is no peace. Christians are being killed. Those who do not have a specific ethnic origin are also being murdered. But there is hope in a place called Europe. Europe respects everyone, Europe is tolerant. Over there, ethnicity or religion does not matter. So, they want to go. They want to fight for it. People say that the trip is dangerous, that many people die at sea. But now Habte just wants to try everything he can to survive, no matter how, with his children. If they do not die at sea, they would die there.
So, the trip is done by night, in a small fishing boat, overloaded with several other families just like them. They have to remain silent. People told them about a fight between Muslims and Christians that ended up with some of them being thrown to the sea.
Unfortunately, Habte and his family won’t make it. He was one among the thousands who rested, along with his wife and children, at the bottom of the sea. We will never know what Europe could have reserved for them.
The Italian Ministry of the Interior expects 5.000 people to arrive at the Italian coast, every week. This will reach a number of 200 thousand in the year of 2015. This is an European problem. Not an Italian one. Because there is something called «European common policy on immigration and asylum». And other thing called «solidarity amongst Member-States». And an Europe that claims to be ruled by Human Rights, amongst which there are the Human Right to Asylum, the prohibition of torture, inhuman or degrading treatments. And also the prohibition of collective expulsions1. Therefore, the EU has a role to play in this Humanitarian crisis. It has to respect its obligations on Human Rights. And it has the means to implement them.
The answers have to be urgent, not only due to the endangered lives of those who enter the EU territory by the Mediterranean sea, but also because people will keep trying to get to Europe. This influx may even worsen during the Summer.
Several reasons may justify this immigration influx, such as the conflicts in Syria, Eritrea, Lybia, Somalia, as well as in other countries of the South Mediterranean. All around the EU borders, not by chance. A solution for these conflicts is not envisaged in a near future - all the more so if you think that the EU still lacks supranational unity in the foreign, security and defence policies. While working to build these urgently needed new unions, the EU can and must nonetheless provide for immediate answers and medium-term strategies.


1. Immediate Answers

The urgent priority is saving lives, in order to avoid these tragedies. We hope that the mission Triton in the Mediterranean Sea might prevent more disasters. Its budget has triplicated and many EU Member-States - including the United Kingdom – agreed to participate. The operations will be lead by FRONTEX, the agency of borders’ control which also has the obligation to save lives and take search and rescue measures, when confronted with situations like those happening at the Mediterranean sea2. Nonetheless, the measures suggested by the European Council of 23th April were not completely satisfactory. That is because the humanitarian crisis is not restricted to the deaths in the Mediterranean. This crisis also encompasses those who arrive to the coast of Italy – who may reach, as we said, five thousands per week – and to the coast of Malta and Greece. A common policy on asylum and immigration calls for solidarity amongst Member States precisely in situations like these. Those countries do not have conditions to receive all these people. But, on the other side, they can not send them back to their countries of origin or transit. Articles 18, 4 and 19 of the EU Charter of Fundamental Rights would oppose to such a «collective expulsion or exclusion», which could also amount to a refoulement.
In this context, we must remember that the European Court of Human Rights has already condemned both Italy and Greece, for having removed groups of illegal immigrants arriving by boat at their coasts3.
Therefore, the only solution is to call for solidarity amongst Member-States. There is a special mechanism for such purpose: the application of the EU Directive on Temporary Protection4. According to this Directive, in case of unusual migratory pressure, the European Commission may issue a declaration of «mass influx of persons». In such case, each Member State would grant temporary protection to a number of persons . This would be the opportunity to implement this Directive, due to the unusual pressure to which some States, in particular Italy, are confronted with. And we can not complain pointing out unaffordable numbers of immigrants. We estimate 200 thousands per year. EU is composed by 28 Member-States, inhabited by about 500 millions people. The neighbouring states of the countries of origin of immigrants are receiving an impressive mass influx of people. Take Turkey, for example, which, alone, has welcomed 1.5 million Syrian refugees. Thus, Europe not only has a legal obligation, but also a civilizational duty to accommodate these people.
Other solution could be a mechanism that was already used several times by the United Nations (especially during the migratory crisis in Indochina in 1975) – the resettlement of refugees. In this case, the migrants would also be distributed amongst «safe countries». However, the resettlement would be operated from the countries of origin. In this case, people could be granted protection there and they wouldn’t need the traffickers’ «help». The European Council mentioned this possibility, although very shyly. It advocates the possibility of rehearsing «pilot-projects» of resettlement. However, we doubt that these projects would result in a satisfactory solution to the crisis. First of all, the total number of persons who could be received this way would be very short. In the first suggestion, it amounted to only 5000 persons. Fortunately, this number was abandoned, but the European Council just made a general declaration of intentions. On the other hand, such solution is only envisaged as an «experience», based upon a «pilot-project». However, in the EU tradition, these projects have received low budgets5.
Moreover, one must stress that this solution would not respond to the structural problem. We should, then, address complementary measures.

 

2. Fighting against the trafficking of Immigrants

The fight against the trafficking of immigrants is a mandatory question. EU law requires every Member State to punish it6.
In fact, this phenomenon encompasses several violations of human rights. Traffickers demand very high amounts of money (they can reach 2000 euros) to migrants who are willing to leave everything behind so they can run to an uncertain future. Moreover, victims suffer several types of abuse during the trip, as well as money extortion. Thus, it is urgent to fight against this type of criminality. However, for such purpose, “destroying” ships is not enough. A strong cooperation with the countries of origin and transit is needed. And, as François Crépeau, UN Special Rapporteur for Migrations, points out, we need to open our doors, allowing foreigners to migrate legally. He claims for a competition with the traffickers7. For example, creating ways for the migrants to claim asylum in their countries, or liaison officers that could enact humanitarian authorisations.
If Europe continues to close its borders, traffickers will continue trafficking people. If we destroy their ships, they will build rafts. If we close the Mediterranean sea, they will arrange transportation by land. And these alternatives will also encompass serious risks for people’s lives and human rights (we should remember the Dover tragedy, in 2000, where 58 Chinese immigrants died, suffocated in a truck container, while trying to enter illegally into the United Kingdom through the Euro tunnel). Thus, the fight against illegal immigration will not represent the solution for the present crisis. We need also to address two more topics.

 

3. Organising legal immigration

People have always migrated. And will continue to migrate. Through migration we implement our right to leave any country for the pursuit of happiness and, often, for our survival. It is worthless to fight against something that defines the Human Being. Quoting again François Crépeau, instead of fighting immigration, let’s organise it.
Since we are integrated in a common policy on immigration and asylum, it is up to the EU to organise legal immigration. And such organisation must take place through two different ways. First of all, through humanitarian immigration. We should receive those who are running away from their country of origin, either because they are being individually persecuted or because such countries do not guarantee peace and security for their citizens. In this context, we should recall the European Union Charter on Fundamental Rights, which guarantees the Fundamental Right to Asylum. And EU law foresees several procedures aimed at implementing it, as the qualification Directive, the Directive on reception conditions and the subsidiary protection Directive8. There is even an European Fund for Asylum and Migration, aimed at helping financially the Member-States who grant asylum9.
But the humanitarian protection for those who are trying to save their lives or integrity does not represent a full response for those who enter into our territories. Indeed, these are only part of the migratory movements. There are also those who migrate searching for better conditions of living, who want to reside, work and start a new life among us. These are the so-called «economic migrants». Until the seventies, they were welcomed, and seen as people who would come to help and contribute to our economies and the labour market. However, that is not the current perspective. Today, more than ever, we have closed Europe’s doors to migrants. We strive against the economic crisis, terrorism, unemployment and for the preservation of a European culture. We want this Europe, as it is, and only for us. Those who were not so lucky on the lottery of birth, do not enter. In this present context, the EU has a duty to promote a change in these mentalities. There are several studies that show that our countries need immigrants. We need them because of the ageing of population in our States. We need them because they contribute to our labour markets, to our public budget. We need them because they are entrepreneurs and even contribute to create jobs to our citizens. Therefore, why shouldn’t we open channels for legal migration? We should allow them to come live and work with us, but in a free and safe way.

 

4. Support to the Countries of Origin

Finally, we must bear in mind that the EU Member-States have limited reception capacities and their territories limited resources: we can not assume the responsibility to receive all the population of Africa. The long-term solution is obviously to remove the needs for humanitarian and (desperate) economic migration. The EU can and must already work on the pulling factors in the countries of origin, but we must aknowledge that it still has very limited resources for that purpose and no real supranational power in the field of the foreign, security and defence policies. Helping those territories to achieve peace and sustainable development is not only our duty, but increasingly also our direct interest.

These are obligations of the EU and, therefore, of every Member-Sate, since we are connected through the solidarity principle. The answers to the Mediterranean migratory crisis should no longer be the strengthen of the borders’ control, nor the construction of stronger and harsher barriers. These are problems related to Human lives. Human beings just like us, Europeans, with the only difference that, in the lottery of birth, they were born in a place where they are not afforded the same conditions for happiness. Can we do something more for them? We can, we must, and we have the means to do it.

By Ana Rita Gil
PhD Student at Faculdade de Direito da Universidade Nova de Lisboa (Lisboa Nova Law School).
Law clerk at the Portuguese Constitutional Court.


 

note1 Articles 18, 4 and 19 of the European Charter of Fundamental Rights.

note2 Article 9, Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.

note3 Decision of 23/02/2012, Hirsi Jamaa and others v. Italy, application n. 27765/09 and decision of 21/10/2014, Sharifi and others v. Italy and Greece, application n. 16643/09.

note4 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences there of.

note5 Steve Peers, «Don’t Rock the Boat: EU leaders do as little as possible to address the migrant crisis», in http://eulawanalysis.blogspot.co.uk/2015/04/dont-rock-boat-eu-leaders-do-as-little.html.

note6 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence.

 

note7 «UN's François Crépeau on the refugee crisis: 'Instead of resisting migration, let's organise it'», The Guardian, 22/04/2015.

 

note8 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, and Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection.

note9 Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund.

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