In the first in a new series, following her work on a rescue boat in the Mediterranean, Lea Main-Klingst looks at the life-threatening difficulties faced by refugees trying to reach Europe by sea
Since 2014, the European Union has been experiencing a mass influx of migrants and refugees reaching its shores. This increase in numbers has undoubtedly put a strain on the Union’s external borders and its asylum system, with the EU and individual Member States struggling to find a workable solution that respects and observes human rights.
This series explores the legal challenges currently existing in the Central Mediterranean Sea
In light of this increase in numbers, and growing national populism, the EU and its individual Member States have pursued isolationist policies – leading to the term ‘Fortress Europe’. In their desire to curb irregular migration, States are progressively taking action along, outside and beyond their borders to prevent individuals from reaching the State’s sovereign territory. This has taken shape in the form of measures such as increased border controls, the externalization of States’ borders, and push-backs of irregular migrants at sea.
States have also focused on extra-territorial migration control, by, for example, applying the ‘safe third country’ concept to States such as Turkey. The ‘safe third country’ concept deems the third country capable and safe to process and assess requests for international protection: as a result, this allows for the rejection of asylum-seekers who have crossed through Turkey before coming to the EU.
Turkey is, however, not the only State with a questionable human rights record that the EU has chosen as a bedfellow. While Turkey has ratified the 1951 Geneva Refugee Convention (albeit including a questionable and heavily criticized geographical limitation), the same minimum cannot be said of Libya, a State with which the EU has recently made deals to limit the number of protection-seekers reaching EU shores.
By their very nature, any measures which limit access to a State’s territory prejudice the rights of asylum-seekers, as they obstruct access to protection. This highlights the inherent tension between protection of the rights of asylum-seekers and States’ desire to restrict migratory flows, and such measures show just how far States are willing to go to curb irregular migration.
It should be noted that throughout this series, I consciously choose to use the term ‘irregular’, instead of the otherwise often used form of ‘illegal’, due to the negative connotations of the latter term. It is also a misleading term in the context of asylum-seekers, with international as well as many national laws recognising the right to seek asylum, and with the individuals themselves being more likely to enter a third State irregularly before being able to apply for and receive international protection. In the case of the EU, this holds true due to the lack of safe and regular access.
This series explores the legal challenges currently existing in the Central Mediterranean Sea, which after the closure of the Turkey-Greece and Balkan routes, has once again become the most prominent flight route to the European Union. It is also a space where the tension between State sovereignty and international human rights law is particularly evident, with more than 15,000 people having lost their lives at the EU’s borders in the past 4 years. Very limited EU efforts have been made to remedy this situation. Instead, the EU has focused its efforts on attempting to shift accountability and responsibility, which has jeopardized human rights protection in exchange for the protection of borders.
Sovereignty, international refugee law and the principle of non-refoulement
The right of people to move beyond the confines of their nation state or political entity has historically been regarded as one of the earliest exercises of human freedom. At the same time, the sovereignty of nation States is considered one of the fundamental pillars of international law, as set out in Article 2 of the UN Charter.
This right of sovereignty permits States to control who enters and crosses their borders and who does not. This sovereignty covers not only a State’s land territory, but stretches (for those States with a coastline) to the territorial sea, subject to the provisions of the UN Convention on the Law of the Sea (UNCLOS) and other applicable rules of international law.
UNCLOS Article 21(h) provides that “the coastal State may adopt laws and regulations (…) relating go innocent passage through the territorial sea” to prevent, amongst other things, the infringement of its immigration laws. It is thus evident that States are not required to admit anyone into their territory, which creates the tension between the right to seek asylum and a State’s sovereign right to control, protect and secure its borders (land or maritime).
Nonetheless, this does not mean that States may ignore their international human rights obligations. As far as asylum is concerned, Article 14(1) of the Universal Declaration of Human Rights stipulates that everyone has the right to seek and enjoy asylum from persecution in other countries.
However, more often than not this right is expressed as the right to seek asylum, rather than the right to be granted asylum. Within the context of the EU, Article 18 and 19 of the European Charter of Fundamental Rights once again guarantee the right to seek asylum (not the right to be granted asylum) and the protection against refoulement.
Similarly, the European Convention of Human Rights does not specifically provide for the right to asylum, and the European Court of Human Rights has repeatedly stated that: “Contracting States have the right, as a matter of well-established international law (…) to control the entry, residence and expulsion of aliens.” International law thus falls short of granting an individual right of asylum, which, instead, falls within the discretion of the sovereign State. At the same time, States are, however, under a duty not to obstruct the individual’s right to seek asylum.
It is the principle of non-refoulement, as contained within Article 33 of the Refugee Convention, that places limitations on the State’s sovereign power in this regard. Its development has been essential due to the fact that, as previously stated, there is no clear stated obligation to grant asylum.
Non-refoulement prevents States from returning a refugee to circumstances “where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group.” This principle is of such a fundamental importance to the system of protection underlying the Refugee Convention that, under Article 42(1) of the Refugee Convention, reservations to this provision are not permitted.
In the current context of what is often described as mixed migratory flows, i.e. a mix of refugees, asylum seekers and migrants, it is also important to note that this protection is not exclusive to refugees. The UNHCR has stated that the principle also applies to asylum-seekers, meaning those whose need for protection is not yet recognized and still to be assessed. Similarly the 1984 Torture Convention (CAT) recognises that: “No State Party shall expel, return (“refouler”) or extradite a person [emphasis added] to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
As previously mentioned, States are progressively taking action – outside their physical territory – to impede access to their territory, asylum procedures and subsequent protection. The Refugee Convention does not explicitly discuss the applicability of the principle of non-refoulement in the extraterritorial context, but the UNHCR has stated in a 2007 Advisory Opinion that “the decisive criterion is not whether such persons are on the State’s territory, but rather, whether they come within the effective control and authority of that State.” This position was confirmed by the ECtHR in its well-known Hirsi judgment. Similarly, in its more recent judgment of N.D. and N.T., the Court once again assumed a strong position vis-à-vis questionable jurisdictional arguments raised by a State in protection of its borders.
Both cases will be considered in more detail in next week’s post, as they are particularly relevant in the current circumstances: increasing numbers of boats leaving Libya are being intercepted by the Libyan Coast Guard and returned to Libya – a country in turmoil, where the protection of rights is not guarantee and where such protection does not seem possible to begin with.
It is known that the Libyan Coast Guard receives both funding and training from European States, thus raising concerns that European States are trying to avoid their human rights obligations and circumvent the prohibition of refoulement by seeking to involve third States – including, in this case, States that people are actively trying to flee from. Ultimately, this raises questions of accountability and whether the jurisdiction of a EU Member State can be indirectly engaged, if supporting the very entity carrying out the interceptions in breach of human rights.
This first post has considered the tension between State sovereignty, the right to seek asylum and the principle of non-refoulement. Nowhere, it seems, is this tension more apparent than in the Mediterranean Sea, due to the stark failure of States to offer assistance to those fleeing across the Mediterranean.
In light of recent developments, including EU cooperation with the Libyan Coast Guard (LCG) and alarming activities by the LCG itself, next week’s post will examine the Hirsi and N.D. and N.T. judgments in a little more detail. Hirsi has laid down the standards of protection applicable to the human rights of migrants at sea and also offered important finding of facts as concerned the human rights’ situation in Libya.
This will offer some background to the personal experiences I had while spending three weeks this summer aboard a rescue ship in the Mediterranean, and the legal challenges in the Mediterranean that have once again come to the forefront following the increased activity of the LCG, raising questions as regards the ‘port of safety’, the observance of the principle of non-refoulement and State responsibility. These will be considered in the following weeks.
Lea Main-Klingst is a founding member of SOS MEDITERRANEE and works as legal assistance on London. This piece was originally published in the online-blog “The Law of Nations”.
 Anne T Gallagher & Fiona David, The International Law of Migrant Smuggling (CUP 2014) 250.
 Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (CUP 2013) 15.
 Rafiqul Islam, ‘The Origin and Evolution of International Refugee Law’ in Rafiqul Islam & Jahid Hossain Bhuiyan (eds), An Introduction to International Refugee Law (MNP 2013) 13.
 Elspeth Guild, ‘The Complex Relationship of Asylum and Border Controls in the European Union’, in Vincent Chetail and others (eds), Reforming the Common European Asylum System (BN 2016) 39.
 Rebecca MM Wallace & Fraser AW Janeczko, ‘The Concept of Asylum in International Law’ in Rafiqul Islam & Jahid Hossain Bhuiyan (eds), An Introduction to International Refugee Law (MNP 2013), 150.
 Gammeltoft-Hansen, 13-14.
 Wallace & Janeczko, 150.
 ibid 153.
Photo: Antony Jean