CROSSING THE MEDITERRANEAN SEA: EU MIGRATION ...Evelien Wauters Samuel Cogolati Abstract In reaction to the mass influx of migrants, with its climax during the summer of 2015, the

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Working Paper No. 180 – November 2016

CROSSING THE MEDITERRANEAN SEA:

EU MIGRATION POLICIES AND HUMAN RIGHTS

Evelien Wauters Samuel Cogolati

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Abstract

In reaction to the mass influx of migrants, with its climax during the summer of 2015, the EU adopted a series of measures to protect its external Schengen borders and shift some responsibility for borders surveillance to third countries of transit and origin. This paper gives a succinct overview of human rights applicable to those crossing the Mediterranean Sea to seek a better life in the EU. Particular attention is paid to the extraterritorial applicability of human rights in the Mediterranean Sea. The paper then goes on to analyse and evaluate, from the perspective of human rights standards, three recent and controversial instruments of European sea borders surveillance and cooperation with a third country of departure: (i) the new European Border Coast Guard, which started its activities in mid-October 2016, (ii) the EU NAVFOR Med Operation Sophia, which combats since 2015 human smuggling and trafficking in the Southern Mediterranean, and (iii) the EU-Turkey Deal, which aims to stop the flow of migrants traveling across the Aegean. The paper concludes that while these policies now generally include formal human rights safeguards, their primary aim is still the protection of the EU external borders against those seeking refuge – rather than the saving of lives on the Mediterranean Sea.

Keywords

Migration – Human rights – European Union – Border Control

Author

Evelien Wauters is PhD Researcher at the Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven (KU Leuven), Belgium

Samuel Cogolati is PhD Fellow of the Research Foundation – Flanders (FWO) at the Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven (KU Leuven), Belgium.

Address for correspondence

[email protected]

[email protected]

mailto:[email protected]


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TABLE OF CONTENTS

1. INTRODUCTION ................................................................................. 4

2. HUMAN RIGHTS OF MIGRANTS ............................................................. 4

2.1. Universality of human rights ...................................................... 4 2.2. Right to non-refoulement .......................................................... 5 2.3. Right to life ................................................................................ 6 2.4. Extraterritorial application.......................................................... 7

3. RECENT EU MIGRATION POLICIES ...................................................... 9

3.1. European Border and Coast Guard ........................................... 9 3.2. Operation Sophia .................................................................... 12 3.3. The EU-Turkey Deal ............................................................... 15

4. CONCLUSION .................................................................................. 20

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1. INTRODUCTION

Tragic losses of lives drowning or succumbing to hunger, thirst, or cold, are reported daily off the Mediterranean Sea. The International Organization for Migration (IOM) reported as of 28 October 2016 that 332,046 migrants entered Europe by sea in 2016, arriving for the vast majority in Greece (169,524) and Italy (157,049).1 While these arrivals represent about half of the total number of arrivals in the same period in 2015 (689,191), more people died trying to cross the Mediterranean in 2016 (3,930 in 2016, 3,175 in 2015). In reaction to this mass influx of migrants, the EU adopted a series of measures to protect its external Schengen borders and shift some responsibility for borders surveillance to third countries of transit and origin. In 2015, the European Parliament’s Subcommittee on Human Rights requested an independent study that would explore the aspects of EU migration policy which affect the rights of migrants before entering the territory of the EU in the Mediterranean Sea, and help the Parliament form opinions and make decisions in this respect.

The present chapter represents an updated summary of this study entitled Migrants in the Mediterranean: Protecting human rights and presented in the European Parliament on 17 March 2016.2 The chapter is divided into two main parts. It first gives a succinct overview of human rights applicable to those crossing the Mediterranean Sea to seek a better life in the EU. Particular attention is paid to the extraterritorial applicability of human rights in the Mediterranean Sea. The second part analyses and evaluates from the perspective of human rights standards three recent and controversial instruments of European sea borders surveillance and cooperation with a third country of departure: (i) the new European Border Coast Guard, which started its activities in mid-October 2016, (ii) the EU NAVFOR Med Operation Sophia, which combats since 2015 human smuggling and trafficking in the Southern Mediterranean, and (iii) the EU-Turkey Deal, which aims to stop the flow of migrants traveling across the Aegean. We conclude that while these policies now generally include formal human rights safeguards, their primary aim is still the protection of the EU external borders against those seeking refuge – rather than the saving of lives on the Mediterranean Sea.

2. HUMAN RIGHTS OF MIGRANTS

2.1. Universality of human rights

While a distinction is often made between ‘regular’ and ‘irregular’ migrants, or refugees and ‘economic’ migrants, the study commissioned by the European Parliament’s Subcommittee on Human Rights uses the generic term of ‘migrant’ in a very broad fashion to refer to all people trying to reach a safe haven in the EU by traveling through the Mediterranean Sea.

1 IOM, ‘Missing Migrants Project’ (2016) <http://missingmigrants.iom.int/mediterranean-migrant-arrivals-reach-

328225-deaths-sea-3671> accessed 7 November 2016. 2 See, Samuel Cogolati, Nele Verlinden and Pierre Schmitt, ‘Migrants in the Mediterranean: Protecting human

rights’, European Parliament, Directorate-General for External Policies, Policy Department (2015) <http://www.europarl.europa.eu/RegData/etudes/STUD/2015/535005/EXPO_STU(2015)535005_EN.pdf> accessed 7 November 2016.

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The term ‘illegal’ migrant is also sometimes employed in EU legislation,3 but such vocabulary creates and maintains a criminalising discourse with regard to irregular migration, and will therefore be avoided. Indeed, Article 14(1) of the Universal Declaration of Human Rights (UDHR) also states that ‘[e]veryone has the right to seek and to enjoy in other countries asylum from persecution’.4 Article 18 of the EU Charter of Fundamental Rights (CFR) proclaims that ‘[t]he right to asylum shall be guaranteed with due respect to the [1951 Refugee Convention]’.5 While it is true that international law does not impose any obligation on the EU Member States to grant asylum to all migrants on its territory, migrants – like all human beings – enjoy the human rights enshrined in international and regional treaties signed by the EU and its Member States. This chapter is therefore not limited to refugees6 only, but discusses the human rights of all migrants trying to reach Europe by crossing the Mediterranean, regardless of their formal legal status.

2.2. Right to non-refoulement

Among other important rights for migrants aiming to reach the EU by sea (including the right

to liberty and property), there is the cardinal principle of non-refoulement. It is enshrined in

Article 33(1) of the 1951 Refugee Convention, which all EU Member States have signed and

ratified:

No Contracting State shall expel or return (‘refouler’) a refugee in any manner

whatsoever to the frontiers of territories where his life or freedom would be

threatened on account of his race, religion, nationality, membership of a particular

social group or political opinion.

Another explicit non-refoulement provision is laid down in Article 3(1) of the Convention Against Torture (CAT).7 Besides, various human rights monitoring mechanisms such as the Human Rights Committee8 and the Committee on the Rights of the Child9 have interpreted

3 See, e.g., Recital 1 of Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009

providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L 168/24: ‘cooperation among Member States should be strengthened in the fight against illegal immigration’ (emphasis added). See also, e.g., Article 4(f) of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC [2016] OJ L 251/1 (EBCG Regulation): ‘cooperation with third countries in the areas covered by this Regulation, focusing in particular on neighbouring countries and on those third countries which have been identified through risk analysis as being countries of origin and/or transit for illegal immigration’ (emphasis added). 4 UNGA, ‘Universal Declaration of Human Rights’ (10 December 1948) UN Doc A/RES/3/217 (UDHR). Note that

although the UDHR is not legally binding as such, those provisions can be said to have been incorporated in international customary law. 5 Charter of Fundamental Rights of the European Union (2012) OJ C 326/931 (CFR).

6 Article 1(1) of the Convention relating to the Status of Refugees (adopted 28 July 1951) 189 UNTS 150

(Refugee Convention) defines the term ‘refugee’ as someone who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable too, or owing to such fear, is unwilling to avail himself of the protection of that country’. 7 International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(adopted 10 December 1984) 1465 UNTS 85 (CAT). 8 Human Rights Committee, General Comment No 20, ‘Article 7’ (10 March 1992) UN Doc HRI/GEN/1/Rev.1,

para. 9. 9 Committee on the Rights of the Child, General Comment No 6, ‘Treatment of unaccompanied and separated

children outside their country of origin’ (1 September 2005) UN Doc CRC/GC/2005/6, para. 27.

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the prohibition of torture10 as containing an implicit obligation not to return a person to a country where there are substantial grounds for believing that there is a real risk of irreparable harm.

For EU Member States and institutions specifically when they implement EU law, Article 19(2) CFR states that ‘[n]o one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’. While the principle is not contained explicitly in the European Convention of Human Rights (ECHR),11 the Strasbourg Court ruled in the landmark case of Soering that the expulsion of an individual ‘may give rise to an issue under Article 3 […], and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if [expulsed], faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the [country of destination]’.12 The obligation not to return refugees and asylum-seekers to territories where their rights or freedoms would be threatened has today reached international customary status, and therefore binds the EU and all its Member States.13

In practice, violations of the right to non-refoulement may actually be caused by national

coast guards trying to avoid that migrant boats reach certain territorial waters by returning

them to their points of departure in so-called ‘push-back operations’. There have been

reports of push-backs by individual Member States, such as Italy, Greece or Spain. Similar

operations would even have been carried out under the auspices of Frontex.14 Once

migrants are pushed-back to the country of departure, they may face detention (e.g. in

Morocco, Algeria, Tunisia, Libya and Egypt) and possible ill-treatment because they left a

State’s territory in an irregular manner.15 In 2012, the European Court of Human Rights

(ECtHR) famously ruled in Hirsi Jamaa and Others v. Italy that Italy was supposed to know

that the Somali and Eritrean migrants – including those with a right to asylum and

international protection – whom they intercepted in the Mediterranean Sea and forced to

return to Libya risked to be subject to serious human rights violations.16 Italy was found to

violate Articles 3 (prohibition of ill-treatment), 4 (prohibition of slavery and forced labour) and

14 (prohibition of discrimination) of the ECHR.17

2.3. Right to life

Article 2(1) CFR and Article 2 ECHR protect the right to life of migrants in the Mediterranean.

This right has both negative and positive components. The right to life means that

unreasonable use of force should not be used to prevent the entry of ‘irregular’ migrants in

the EU. In the context of the Mediterranean Sea, the right to life also translates into the duty

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Article 7 of the International Covenant on Civil and Political Rights (adopted 16 December 1966) 999 UNTS 171; Article 37(a) of the Convention on the Rights of the Child (adopted 20 November 1989) 1577 UNTS 3. 11

Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950) 213 UNTS 222 (ECHR). 12

Soering v United Kingdom (1989) 11 EHRR 439, para. 91. 13

UNHCR, ‘Note on international protection’ (13 Septembre 2001) UN Doc A/AC.96/951, para. 16. 14

Silvia Borelli and Ben Stanford, ‘Troubled Waters in the Mare Nostrum: Interception and Push-backs of Migrants in the Mediterranean and the European Convention on Human Rights’ (2014) 10 Uluslararası Hukuk ve Politika – Review of International Law and Politics 26, 34-35. 15

For a detailed overview of the possible duration of the imprisonment and the amount of the fine listed per country, see FRA, ‘Fundamental Rights at Europe’s southern sea borders’ (July 2013), <http://fra.europa.eu/sites/default/files/fundamental-rights-europes-southern-sea-borders-jul-13_en.pdf> accessed 7 November 2016, p. 43. 16

Hirsi Jamaa and others v Italy (2012) 55 EHRR 21, paras 125-126. 17

ibid, paras 113-138.

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to render assistance to persons in distress at sea. The Law of the Sea Convention

(UNCLOS) requires ship masters to render assistance and rescue persons in danger of

being lost or in distress, and coastal States to maintain effective search and rescue

operations on the Sea (Article 98).18 This obligation now also flows from other treaties19 and

customary international law, and is applicable to the EU and its Member States. Moreover,

Article 16 of the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air,

supplementing the United Nations Convention against Transnational Organized Crime (the

Palermo Protocol) requires the EU and all its Member States to preserve and protect the

rights of victims of smuggling, in particular the right to life and the right not to be subjected to

torture or other cruel, inhuman or degrading treatment or punishment, with a particular

attention to the ‘special needs of women and children’.20

In the absence of regular and safe channels to seek asylum, an increasing number of

migrants use extremely precarious routes such as the central Mediterranean route, which

results in what has been termed by the UN Special Rapporteur on the human rights of

migrants, ‘large-scale violations of the right to life’.21 The right to life of migrants is indeed

exposed to numerous threats, starting with the use of unseaworthy boats to cross the

Mediterranean. In addition, the safety of the crossing also depends on various other factors,

such as the route, the weather and sea conditions, the number of people on board and the

navigations skills of the captain or migrants.22 Because of all these factors, it is not

uncommon that migrants get lost at sea, that they run out of fuel, that they encounter heavy

seas or have engine problems, and in the worst case scenario, that the boat fills with water.

In addition to the difficulties linked to the type of boat and navigation problems, shortage of

food and water during the boat trip also poses serious risks to the migrants. More in

particular for European coast guards or military officers involved in naval operations on the

Mediterranean, the right to life requires them to use direct lethal force in the most extreme

situations only in order to protect life and limb.

2.4. Extraterritorial application

When migrants on a boat trying to cross the Mediterranean have entered the territorial

waters of an EU Member State, there is no doubt that they can enjoy all human rights

mentioned above. However, in the case where migrants are intercepted, returned or lose

their live in the high seas or in the territorial waters of a third State such as Libya or Turkey,

the question is still whether the legal responsibility of the Union or its Member States can be

engaged at all. The applicability of human rights instruments can indeed only be triggered

when a situation falls within the jurisdiction of the States (or organisations) party to the

18

United Nations Convention on the Law of the Sea (adopted 10 December 1982) 1833 UNTS 3 (UNCLOS). 19

Para. 2.1.10, Annex, International Convention on Maritime Search and Rescue (adopted 1 November 1979) 1405 UNTS 109 (SAR Convention); Reg. 33(1), Ch. V, Annex, International Convention for the Safety of Life at Sea (adopted 1 November 1974) 1184 UNTS 278) (SOLAS Convention). 20

Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000) 2241 UNTS 507. 21

Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, François Crépeau, ‘Banking on mobility over a generation: follow-up to the regional study on the management of the external borders of the European Union and its impact on the human rights of migrants’ (8 May 2015) UN Doc A/HRC/29/36, para. 26. 22

FRA, above n 15, 25.

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instrument. Jurisdiction in the ECHR, for example, is primarily territorial, meaning that it is

presumed to be exercised normally throughout the State’s territory.23 The question is then

whether migrants in the Mediterranean Sea who have not yet reached the EU territory are

deprived of any human rights protection, like in a ‘no man’s land’. Or can the obligations

mentioned above produce extraterritorial effects vis-à-vis the EU and its Member States?

Territoriality is indeed not the only possible venue to conclude that a Member State has

jurisdiction for the purposes of human rights obligations. According to ECtHR’s case-law,

jurisdiction can also be established when a State exercises control over an area or territory,

or when its State agents exercise effective control over an individual.24 In the

aforementioned Hirsi Jamaa case, the ECtHR confirmed that when the boat of the migrants

is located on the high seas, but that a national authority vessel from a ECHR State takes the

migrants on board to hand them over to a third State, the migrants in question are under the

effective control of State officials and therefore fall within the jurisdiction of the ECHR (see

also Article 92 UNCLOS). In the case at hand, ‘in the period between boarding the ships of

the Italian armed forces and being handed over to the Libyan authorities, the applicants were

under the continuous and exclusive de jure and de facto control of the Italian authorities’.25

Even if the persons were not on board a State vessel, but coast guards from a Member

State seek to encircle the boat and escort it back to the national waters of the State of

departure, or cause the boat to sink (for example, by puncturing rubber boats), it is accepted

that the incident occurred within the jurisdiction of the intercepting State. In the Xhavara

case, concerning an Albanese migrant boat that sunk after being struck by an Italian marine

vessel outside Italian territorial waters, the ECtHR indeed did not object that the victims had

been within the jurisdiction of Italy.26

A more sensitive question is to know whether jurisdiction can be established when migrants

on a boat trying to cross to Europe drown before entering in territorial waters, but no vessels

of Member States were present when the incident occurred. There is no push-back, nor any

intervention from coast guards. However, in line with the functional approach to jurisdiction

of the ECHR, Spijkerboer argues that the deaths could have occurred within the jurisdiction

of European Member States because they are the result of strict border policies which make

a safe and legal entry within the EU impossible.27 The ECtHR has indeed in some instances

held that ‘in exceptional cases […] acts of the Contracting States performed, or producing

effects, outside their territories can constitute and exercise of jurisdiction by them’.28 The link

between EU policies and the death of migrants on the Mediterranean may admittedly seem

too remote here, but one could argue that at least the positive obligations linked to the right

to life, like a duty to carry out an investigation into the number of deaths at sea, an obligation

to reassess the EU policies in light of such data, are relevant here.29

23

Banković and others v Belgium and others (2001) ECHR 890, paras 59-61. 24

Al Skeini v United Kingdom (2001) 53 EHRR 18, paras 133-137 (Stage agent authority and control), paras

138-140 (effective control over an area). 25

Hirsi Jamaa, above n 16, para. 81. 26

Xhavara and others v Italy and Albania no 39473/98 (admissibility decision, 11 January 2001). 27

Thomas Spijkerboer, ‘Moving Migrants, States, and Rights. Human Rights and Border Deaths’ (2013) 213(2) LEHR 213, 226. 28

Hirsi Jamaa, above n 16, para. 71. 29

Spijkerboer, above n 27, 235.

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3. RECENT EU MIGRATION POLICIES

3.1. European Border and Coast Guard

On 15 December 2015, the European Commission suggested the creation of a ‘European Border and Coast Guard’30 (EBCG) as one of its policy responses to the deteriorating migration situation in and at the borders of the European Union. The aim of the Proposal was to ensure the ‘European Integrated Border Management’ (EIBM) by placing irregular migration, internal security threats and cross-border crime on equal footing, and reinforcing the current Border Agency, Frontex, in line with what the Commission viewed as the main deficiencies taunting the functioning of the Agency.31 The structure of the new European Border and Coast Guard (EBCG Agency) includes a beefed up Frontex and increased cooperation between the national border and coast guard authorities.32 The EBCG Regulation replaces the existing Frontex Regulation33 which was amended in 2007 and 2011.

The Proposal was the subject of a speedy legislative procedure in the Council and the European Parliament, prompted by the need to find a coherent response to the increase in arrivals of refugees and migrants in Europe. Three months after the Council had put some additional pressure at the Justice and Home Affairs Council of 21 April 2016, emphasising that all Member States are aligned and that the ball was in the court of the European Parliament,34 the legislative resolution was adopted in the plenary of the European Parliament35 and published in the Official Journal of the European Union on 16 September.36 It will have fully entered into force by January 2017.37

Announced as one of the main innovations of the new Regulation, the possibility of deploying the in 2011 introduced ‘European Border and Coast Guard Teams’ to external borders identified by the Union assessment system as vulnerable as regards the operational capacity of the concerned Member State in order to prevent potential crises.38 The crux of the novel ‘vulnerability assessment’ mechanism lays in the right of the Agency to intervene in situations ‘requiring urgent action’, by means of sending border and coast guards from other Member States to a common EU external border, deploy migration management support teams in the hotspot areas, and even organise return interventions without the need to obtain the formal consent of the Member State concerned.39 In other words, as soon as a

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European Commission, ‘Proposal for a Regulation of the Parliament and the Council on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC, 15 December 2016, COM(2015) 671 final (EBCG proposal). 31

European Commission, Factsheet on the European Border and Coast Guard (2015) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/securing-eu-borders/fact-sheets/docs/a_european_border_and_coast_guard_en.pdf> accessed 7 November 2016. 32

European Commission, ‘A European Border and Coast Guard to protect Europe's External Borders’ (Press release, 15 December 2015) <http://europa.eu/rapid/press-release_IP-15-6327_en.htm> accessed 7 November 2016. 33

Regulation (EU) 1168/2011 of the European Parliament and of the Council, amending Council Regulation (EC) No. 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2011] OJ L 304/1. 34

Council of the European Union, ‘Outcome of the Justice and Home Affairs Council Meeting’, 21 April 2016, 8065/16. 35

European Parliament, ‘European Parliament legislative resolution of 6 July 2016 on the proposal for a regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC (COM(2015)0671 – C8-0408/2015 – 2015/0310(COD))’, 6 July 2016, P8_TA(2016)0305 (European Parliament Legislative Resolution). 36

EBCG Regulation, above n 3. 37

ibid, Article 83. 38

ibid, Recital 21 and Article 8. 39

ibid, Article 19.

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Member State is unable to uphold the EU’s restrictive Border Policy, the Agency will be able to step in. The counterweight of the need for a Council decision implementing the operation40, as well as the agreement of the Member State concerned with the operational plan41 should be nuanced in light of the possibility of a temporary exclusion from the Schengen area in the event of Member State non-compliance.42

The EBCG Proposal envisages a ‘rapid reaction pool’ of EBCG Teams, consisting of a ‘standing corps’ of minimum 1,500 national border guards, deployable within five working days.43 Regardless of the ambition to overcome current shortages in staff, due to unfulfilled Member State commitments44, the Proposal does not envisage the Agency having its own European Border Guards. The Agency’s ‘pools’ will continue to be populated by national border guards and will thus remain subject to the capacity and goodwill of the Member States. The Proposal therefore does not establish a permanent and stable EBCG system as was envisaged in 200345 deployable along the whole of EU’s external borders, but rather an enhanced form of cooperation between the national border guards within the remit of the Agency. This could also be read into the design of the ‘right to intervene’, the new Agency thus appears to remain ‘crisis-driven’ with a focus on some specific frontline States.46

Along the same lines, the Regulation gives the Agency a key role in the EU ‘hotspot approach’, broadening its de jure competences, by listing the tasks which Frontex was de facto already carrying out in the hotspots in Greece and Italy and adding the coordination among EU agencies at the hotspots.47 While more leeway might be more advantageous to implement the approach in practice, it should be noted that additional discretion for Frontex in combination with the absence of a detailed legal framework for the hotspots themselves, will result in an unreasonable focus on border control, instead of upholding the right to international protection, which is arguably currently already the case.48 A recital clarifying that ‘in hotspot areas the different agencies and Member States should operate within their respective mandates and powers’ does not amount to a clear division of tasks, let alone a detailed legal framework.49

By reason of excellent campaigning by several human rights organisations and European political parties, lots of relevant fundamental rights safeguards were added to the original text of the Commission’s Proposal EBCG Proposal. In this way, the possibility of ‘mixed return operations’50, namely the returning of people from one third country to another, was deleted from the text and the complaints mechanism was strengthened.51 The Agency will still obtain a greater role in the returning of migrants to their country of origin, but only following executing decisions taken by Member States authorities.52 Furthermore, in the line of the EU’s policy of outsourcing its responsibilities regarding border management,53 under

40

ibid, Article 19(1). 41



ibid, Articles 17(10) and 19(6). 44

Sergio Carrera and Leonard den Hertog, ‘A European Border and Coast Guard: What’s in a name?’, Papers in Liberty and Security in Europe (88) (Brussels, CEPS March 2016) 12. 45

European Commission ‘Towards integrated management of the external borders of the Member States of the European Union’, 7 May 2002, COM (2002) 233 final. 46

Carrera and den Hertog, above n 44. 47

EBCG Regulation, above n 3, Article 2(10), 8(i), 14(2)(d), 18(1) and (3), and 19(3)(b). 48

Darren Neville, ‘On the frontline: the hotspot approach to managing migration’, European Parliament, Directorate-General for Internal Policies, Policy Department (2016) <http://www.europarl.europa.eu/RegData/etudes/STUD/2016/556942/IPOL_STU(2016)556942_EN.pdf> accessed 7 November 2016, 29. 49

EBCG Regulation, above n 3, Recital (27). 50

EBCG Proposal, above n 30, Article 27(4). 51


EBCG Regulation, above n 3, Article 33(1). 53

Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, François Crépeau, ‘Banking on mobility over a generation: follow-up to the regional study on the management of the external

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this new Regulation the Border Agency will be able to engage in border control operations in third countries beyond EU borders, in countries such as Libya with a deteriorating human rights situation.54 In view of the significant reinforcement of Frontex powers, as well as the explicit affirmation of shared responsibility between Frontex and the Member States in EIBM,55 the Regulation would have benefited from a clear delineation of responsibilities with regard to each operational activity and in each operational plan, as the mere confirmation of the general division of competence under international conventions does not amount to this.56

As a response to the repeatedly expressed accountability concerns, the accountability and information duty of the Agency vis-à-vis the Parliament and the Council have been reinforced.57 In terms of transparency, the Proposal was even amended to include a duty to communicate on its activities. However, it shall do so on its own initiative.58 In addition, the final version’s recitals now envisage the Agency should report in its annual report on its cooperation with third countries.59 Transparency with regard to the third country cooperation of Frontex has consistently been an area of concern.60 It is however unclear which commitment and level of detail exactly stem from this recital.

Another welcome new feature in terms of accountability of the EBCG is the establishment of a common complaint mechanism in those situations where an individual’s fundamental rights might have been violated during the EBCG’s activities.61 The complaints may be interlinked with the new suspension and termination mechanism, as the latter makes provision for the suspension or termination of operations due to persistent fundamental rights violations.62 The latter mechanism is however at the discretion of the Executive Director (ED) and lacks transparency as the criteria for taking such decision are not public.63

Similarly, the independence of the novel, and long awaited,64 complaints mechanism could be compromised by the fact that the Fundamental Rights Officer (FRO) is mainly allowed to assess the admissibility of complaints and that respectively the ED (in the case of staff members) and the Member State (in the case of guest officers), for whose decisions there is no guarantee of impartiality or transparency, are entrusted with their investigation. Admittedly, the FRO is responsible for monitoring the final decision and the ‘appropriate follow-up’ by the ED or the Member State. However, the Regulation failed to specify what an ‘appropriate follow-up’ entails and which minimal remedies should be available in the case of well-founded complaints.65 Hence, the value of the complaints mechanism hinges on its implementation by the ED and the forcefulness of the FRO. The complaint mechanism does not ensure independence and therefore would arguably not qualify as an effective remedy

borders of the European Union and its impact on the human rights of migrants’ (8 May 2015) UN Doc A/HRC/20/24. 54

EBCG Regulation, above n 3, Recital 46, article 8(f) and (u), 14(c) and (e), 19(c), 54(1) and (3). 55

ibid, Article 5. 56

ibid, Recital 27. 57

ibid, Recitals41 and 56, and article 7. 58


ibid, Recital 46 and article 26). 60

Sergio Carrera, Leonard den Hertog, Elspeth Guild, and Joanna Parkin, ‘Study on Implementation of EU Charter of Fundamental Rights and its impact on EU Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office’ (EP Policy Department C: Citizens’ Rights and Constitutional Affairs, August 2011) 8; PACE, ‘Frontex: Human Rights responsibilities’, Resolution 1932 (25 April 2013), paras 3 and 8; Roberta Mungianu, Frontex and Non-Refoulement: International Responsibility of the EU (CUP 2016) 230. 61

EBCG Regulation, above n 3, Article 72. 62



PACE, above n 60, para 9.5; European Ombudsman, Case OI/5/2012/BEH-MHZ, Decision of the European Ombudsman closing own-initiative inquiry OI/5/2012/BEH-MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), 12 November 2013. 65

EBCG Regulation, above n 3, Article 72 (4)-(6).

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for individuals. This is particularly problematic when it comes to the envisaged new responsibilities on returning refugees to their home countries.

In addition, the mainstreaming of human rights in the Agency’s structure, obviously depends on the presence of a strong, independent human rights structure. To establish a strong, effective and independent complaints mechanism, would require strengthening the current human rights structure of Frontex. This would entail, among others, but not exclusively, modifying the mandate of the FRO, strengthening the office, including more staff, and entrusting them with the required institutional independence, and a clear competence to assess the merits of the complaints and further resources, alternatively, entrusting another independent fundamental rights body with such competence, the necessary staff and resources. Recital 48 which was added during the final stage reciprocates the call by human rights organisations for a strengthened human rights structure by emphasising the importance of a solid fundamental rights strategy and allocating further resources to the FRO.66 Again, those positive developments would have had a less ambiguous status if they would have been added to article 71 on the FRO.

When reading through the final version of the Regulation, it becomes clear that human rights and refugee protection are an afterthought and are in some ways used as a ‘legitimising cloak’ for the core aims of the new agency: border defence and efficient returns. While there is reference to respecting fundamental rights in the recitals of the Commission’s EBCG Proposal67 and more references were added in the later stages,68 the Regulation does not integrate human rights safeguards in a substantial manner, resulting in actual commitments to ensure respect of the human rights of migrants, throughout several important sections, not the least because of the ambiguous status of recitals per se.

The establishment of the new – rather, beefed up – Agency offered the perfect opportunity to start with a ‘clean slate’ and address the Border Agency’s structural shortcomings. This would not only benefit the migrants having allegedly been subjected to human rights violations, but no less importantly, the Agency, the Member States and their personnel, in having some clarity on their responsibilities and accountability. However, as long as the Member States and their interests reign within Frontex and the broader field of Home Affairs it is unlikely that the legitimacy which it needs will be acquired. So far we have only seen proposals focusing on border control, trying to stem the flow of migrants instead of viable long term strategies for a responsible, humane response to the crisis at its borders, also focusing on the field of asylum.

3.2. Operation Sophia

After the tragic death of 800 migrants on the Mediterranean in the course of April 2015, the

EU decided to also take military action against migrant smugglers operating on the

Mediterranean Sea. On 20 April 2015 a 10-point action plan was presented and included the

call for – in analogy with the Atalanta operation against pirates off the Horn of Africa – ‘[a]

systematic effort to capture and destroy vessels used by the smugglers’.69 On 18 May 2015,

66

Amnesty International, International Commission of Jurists and ECRE, ‘Joint briefing on the European Border and Coast Guard regulation’ (4 April 2016) 10-11. 67

Recital 29 EBCG Proposal. 68

E.g. recitals (9)(c), (21)(c), (22)(c), (23), (28)(a) and (b) European Parliament Legislative Resolution. 69 European Commission, ‘Joint Foreign and Home Affairs Council: Ten point action plan on migration’, Luxembourg, Press Release (20 April 2015) <http://europa.eu/rapid/press-release_IP-15-4813_en.htm> accessed 7 November 2016.

13

the EU Foreign Affairs Council approved the creation of a Common Security and Defence

Policy (CSDP) operation against the smugglers.70

The mission aims to ‘conduct a military crisis management operation contributing to the

disruption of the business model of human smuggling and trafficking networks in the

Southern Central Mediterranean […], achieved by undertaking systematic efforts to identify,

capture and dispose of vessels and assets used or suspected of being used by smugglers or

traffickers, in accordance with applicable international law, including UNCLOS and any UN

Security Council Resolution’.71 Its mandate consists of three phases: (i) the gathering of

information on the migration networks and smugglers’ routes in the Southern Mediterranean,

(ii) the search, seizure and diversion of vessels suspected of being used for human

smuggling or trafficking, (iii) forcible measures, including the destruction of vessels and

apprehension of smugglers, in the territory of Libya (conditioned on the existence of a

Resolution from the UN Security Council).72

Phase 1 of the military operation was formally launched on 22 June 2015.73 The Political and

Security Committee (PSC) of the Council decided that the operation would move to phase 2

‘International Waters’ as of 7 October 2015.74 At the same time the PSC also decided to

change the name of the operation from EUNAVFOR MED into ‘Operation Sophia’.75 On 9

October 2015, the UN Security Council (UNSC) adopted Resolution 2240 under Chapter VII

of the UN Charter which authorised the EU and its Member States to inspect, seize and

dispose of vessels that are being used for migrant smuggling or human trafficking from

Libya.76 For the European Commission, the resolution represented ‘an important political

endorsement’ of Operation Sophia.77 Yet, the Resolution is limited to operations on the high

seas; it does not justify any coercive measures in Libya’s territorial waters.78

On 20 June 2016, the Council extended until 27 July 2017 the mandate of Operation Sophia,

and added to it two new supporting tasks: namely, capacity building of the Libyan

coastguards and navy, and implementation of the UN arms embargo imposed on Libya

according to UNSCR Resolution 229279.80 The naval force claims to have arrested 87

suspected smugglers and traffickers, disposed of 263 boats, and saved 24,800 lives through

70

Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (2015) OJ L 122/31. See also Article 42(1) of the Treaty on European Union (TEU) (2016) OJ C 202/1. 71



Council Decision (CFSP) 2015/972 of 22 June 2015 launching the European Union military operation in the southern Central Mediterranean (EUNAVFOR MED) (2015) OJ L 157/51. 74 Council of the European Union, ‘EUNAVFOR Med: EU agrees to start the active phase of the operation against human smugglers and to rename it “Operation Sophia”’, Press Release (28 September 2015) <http://www.consilium.europa.eu/en/press/press-releases/2015/09/28-eunavfor/> accessed 7 November 2016.

75 Sophia is the name of the baby girl who was born on a EUNAVFOR MED ship near the coast of Libya, after

her mother of Somali origin was rescued. 76

UNSC Res 2240 (9 October 2015) UN Doc S/RES/2240, paras 7-8. 77

European Commission, Communication from the Commission to the European Parliament, the European Council and the Council, ‘Managing the refugee crisis: State of Play of the Implementation of the Priority Actions under the European Agenda on Migration’ (2015) COM(2015) 510 final, 13. 78

ibid., paras 10-11. 79

UNSC Res 2292 (14 June 2016) UN Doc S/RES/2292. 80

Council Decision (CFSP) 2016/993 of 20 June 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation Sophia) (2016) OJ L 162/18.

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30 August 2016.81 As of today, there is however no Libyan consent for operations in its

territorial waters. Hence, it remains to be seen whether and how the third phase of Operation

Sophia will be further operationalised in accordance with the international legal principle of

non-intervention (Article 2(4) UN Charter82).

While the mission of EUNAVFOR MED Operation Sophia is aimed at stopping smugglers

from operating in the Mediterranean and preventing further loss of life of migrants, the

operation can nevertheless pose serious risks of violations of migrants rights.83 In particular,

the diversion of boats could affect the passengers’ protection under the principle of non-

refoulement. Officers engaged in Operation Sophia are prohibited from returning people

intercepted and rescued on the Mediterranean to territories where their life or freedom would

be in danger. The actions undertaken in phase 2 could also undermine the migrants’ rights

to leave any country (in this case, Libya), as it is provided by Article 12(2) ICCPR. Similarly,

depending on whether and how the personnel of Operation Sophia uses force when for

example obliging them to board on a vessel, the prohibition of torture, inhuman and

degrading treatment may become relevant. Apart from possible human rights violations

committed by EUNAVFOR MED Operation Sophia, human rights NGOs like HRW84 and

ECRE85 voiced their concern that the destruction of smugglers boats can lead desperate

migrants to take even more dangerous routes to reach the EU, which would in turn put them

at risk of further violations of their right to life. The most efficient long-term solution to disrupt

the business model of smugglers remains to provide safe and legal channels to seek asylum

in the EU.

CSDP operations, as all EU actions, have to comply with the obligations provided for in the

CFR and customary international humanitarian law.86 The aforesaid duty to render

assistance to persons in distress at sea also applies to warships participating in Operation

Sophia. In this respect, the Council Decision recalls that

The Union CSDP operation will be conducted in accordance with international law, in

particular with the relevant provisions of the 1982 United Nations Convention on the

Law of the Sea (UNCLOS), the 2000 Protocols against the Smuggling of Migrants by

Land, Sea and Air (the Protocol against the Smuggling of Migrants) and to Prevent,

Suppress and Punish Trafficking in Persons, especially Women and Children,

supplementing the United Nations Convention against Transnational Organized

Crime, the 1974 International Convention for the Safety of Life at Sea (SOLAS), the

1979 International Convention on Maritime Search and Rescue (SAR), the 1976

81

EUNAVFOR MED, ‘EUNAVFOR MED: operation Sophia flagship ITS GARIBALDI rescued over one thousand migrants’, Press release 001/2016 (30 August 2016) <http://eeas.europa.eu/csdp/missions-and-operations/eunavfor-med/pdf/pr0012016.pdf> accessed 7 November 2016. 82

Charter of the United Nations (adopted 26 June 1945) 1 UNTS XVI. 83

See Graham Butler and Martin Ratcovich, ‘Operation Sophia in Uncharted Waters: European and International Law Challenges for the EU Naval Mission in the Mediterranean Sea’ (2016) 85 Nordic Journal of International Law 235. 84

HRW, ‘EU: Don’t Endanger Lives at Sea or Deny Protection: Anti-smuggling Operation Bound by Human Rights Law’ (21 May 2015) <https://www.hrw.org/news/2015/05/21/eu-dont-endanger-lives-sea-or-deny-protection> accessed 7 November 2015. 85

ECRE, ‘EU starts the “active phase” of a critical operation against human smugglers’ (1 October 2015) <http://www.ecre.org/eu-starts-the-active-phase-of-a-critical-operation-against-human-smugglers/> accessed 7 November 2016. 86

For a comprehensive overview, see European Parliamentary Research Service, ‘Human Rights applied to CSDP operations and missions’, Briefing (21 January 2014) <http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2014/130712/LDM_BRI(2014)130712_REV2_EN.pdf> accessed 7 November 2016.

15

Convention for the Protection of the Marine Environment and the Coastal Region of

the Mediterranean (Barcelona Convention), the 1951 Geneva Convention relating to

the Status of Refugees and the principle of non-refoulement and international human

rights law.87

The UN Security Council also underscored that its resolution of 9 October 2015 ‘is not

intended to undermine the human rights of individuals or prevent them from seeking

protection under international human rights law and international refugee law’.88

The European Parliament proposed in its resolution of 21 November 201389 to include

human rights advisors in all CSDP missions. Captain Annunziata Cosenza is currently the

Human Rights and Gender Issues Expert to the Commander at the European

Union Headquarters, in Rome, for the EUNAVFOR MED Operation Sophia.90 However, in

contrast to the EBCG, EUNAVFOR MED Operation Sophia does not have an internal

complaints mechanism for individuals who consider that their rights have been violated in

course of its missions. It does not report either to the Council or the European Parliament on

human rights issues encountered in missions.

Under Article 340(2) TFEU the EU must compensate for damages caused by EU institutions or servants in the performance of their duties. For CSDP missions specifically, however, victims’ access to compensation is hampered by the fact that the CJEU does – apart from some minor exceptions – not have jurisdiction over CSDP matters. For some commentators this ‘accountability gap’ is an additional argument for the EU to accede to the ECHR, which would give the ECtHR in Strasbourg competence over cases involving human rights violations committed during CSDP missions. Opponents argue however that the ECHR should not be able to decide on matters over which the CJEU does not have competence. In its Opinion 2/13 of 18 December 2014, the CJEU has followed the latter view.91 Therefore, victims of possible human rights violations committed by EUNAVFOR MED Operation Sophia would only be able to seek for compensation from the EU before the courts of the Member States, who obtain jurisdiction on the basis of Article 274 TFEU.92 Alternatively, they could seek for compensation directly from the Member States themselves, but this raises the intricate question whether responsibility for CSDP operation is a EU and/or Member State responsibility.

3.3. The EU-Turkey Deal

Apart from external borders control and surveillance, the EU has also increased its cooperation in the area of migration with third countries. The EU-Turkey Deal stands as the most well-known example of the trend to externalisation of migration control outside of the borders of the EU. The EU-Turkey Summit of 7 March 2016 did not only have the official closure of the Balkan Route at its heart, but also the declaration that ‘bold moves were

87

Recital 6 of the Preamble to Council Decision (CFSP) 2015/778. 88

UNSC, above n 76, para. 12. 89

European Parliament, ‘Resolution of 21 November 2013 on the implementation of the Common Security and Defence Policy (based on the Annual Report from the Council to the European Parliament on the Common Foreign and Security Policy)’, 14605/1/2012 – 2013/2105(INI), para. 21. 90

The authors are indebted to the Spokesperson’s Service of EUNAVFOR MED Operation Sophia and Captain Annunziata Cosenza for providing them with this information. 91

Opinion 2/13 of 18 December 2014 [2012] C:2014:2454, paras. 249 to 257. 92

Article 274 TFEU reads as follows: ‘Save where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States.’

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needed to close down people smuggling routes, to break the business model of the smugglers, to protect the EU external borders’.93 Ten days later, on 18 March 2016, the ‘one in one out’ deal was born.94 The deal aims to stop the flow of irregular migrants travelling across the Aegean from Turkey to the Greek islands by allowing Greece to return to Turkey all ‘irregular migrants’ arriving after 20 March 2016. In exchange, it proclaims to offer ‘migrants an alternative to putting their lives at risk’,95 as EU Member States will increase resettlement of Syrian refugees residing in Turkey, lift visa requirements for Turkish citizens by the end of June 2016, and boost existing financial support for Turkey’s refugee population.96

From the start, the deal sparked important legal and political controversy. Firstly, the proposition of returning all migrants from Greece to Turkey without prior assessment would undeniably amount to collective expulsion and would thus contradict Article 19(1) CFR, Article 4 to Protocol No 4 to the ECHR and EU asylum legislation.97 Furthermore, returning a person entitled to international protection to a territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion or where there is no personal persecution but the conditions in the receiving country do not comply with international standards either,98 contradicts the principle of non-refoulement.99 Moreover, an expulsion to Turkey could eventually lead to ‘deportation chains’, in which asylum-seekers are transferred from state to state based to their country of origin on the basis of readmission agreements. However, this critique was silenced due to some nuance in the final version of the Statement, emphasising the individual assessment of the applications, the right to appeal and the respect for international law, particularly the principle of non-refoulement.100

Secondly, ambiguity exists about the nature of the deal. Since the deal was introduced as an agreement,101 questions arose in the European Parliament102 and among legal scholars103 about the possible side-tracking of the European Parliament’s obligatory involvement for agreements with third countries following article 218 TFEU. The Commission thereupon

93

European Council, ‘Statement of the EU Heads of State or Government’, Press Release (7 March 2016) <http://www.consilium.europa.eu/en/press/press-releases/2016/03/07-eu-turkey-meeting-statement/> accessed 7 November 2016. 94

European Council, ‘EU-Turkey statement’, Press Release (18 March 2016) <http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/> accessed 7 November 2016. 95

European Commission, ‘EU-Turkey Statement: Progress Report September 2016’, Press Release (4 October 2016) <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/20160928/factsheet_implementation_of_the_eu-turkey_statement_en.pdf> accessed 7 November 2016. 96

European Commission, ‘EU-Turkey Agreement: Questions and Answers’, Press Release (19 March 2016) <http://europa.eu/rapid/press-release_MEMO-16-963_en.htm> accessed 7 November 2016. 97

Among others, Articles 10(3) and 38 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L 180/60 (Asylum Procedure Directive). 98

Jasin v Denmark (International Covenant on Civil and Political Rights Human Rights Committee, July 2015). 99

UNHCR, above n 13. 100

European Commission, above n 96. 101

ibid. 102

European Parliament, ‘Parliamentary question: Legal nature and binding nature of the so-called “EU-Turkey Agreement”’, 22 March 2016. 103

Maarten den Heijer and Thomas Spijkerboer, ‘Is the EU-Turkey refugee and migration deal a treaty?’ (EU Law Analysis, 7 April 2016) <http://eulawanalysis.blogspot.be/2016/04/is-eu-turkey-refugee-and-migration-deal.html>

accessed 7 November 2016; Mauro Gatti, ‘The EU-Turkey Statement: A Treaty That Violates Democracy (Part 2 of 2)’ (EJIL Talk!, 19 April 2016) <http://www.ejiltalk.org/the-eu-turkey-statement-a-treaty-that-violates-democracy-part-2-of-2/> accessed 7 November 2016.

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clarified that it concerned a statement which merely announced certain measures to be introduced on the basis of existing commitments.104

To that effect, and in view of the in principle non-binding nature of a statement, the Commission now continuously refers to the Council’s Relocation Decision with regard to Italy and Greece,105 the Conclusions of the Justice and Home Affairs Council of 20 July 2015,106 the existing bilateral Readmission Agreement between Turkey and Greece, and the ex post facto initiated EU-Turkey Readmission Agreement which still awaits final approval by Turkey,107 as formal bases for the measures announced in the Statement.

Thirdly, in the run-up to the deal, when questioned on its legality, EU leaders responded that migrants may be returned to Turkey as it constitutes ‘a safe third country’ in line with articles 33 and 38 of the EU Asylum Procedure Directive.108 This argument was greatly criticised given Turkey’s long record of refoulement as shown in different reports.109 Furthermore, it was argued that Turkey is not a full member of the Geneva Convention on refugees, following which only people from the Council Europe are allowed to seek refugee status in Turkey, as it has placed geographical limits on its signature of the 1967 Protocol.

Non-European asylum-seekers could, at least theoretically, have access to two alternative forms of protection: ‘conditional refugee status’ for persons who would qualify as refugees under the Geneva Convention and a form of EU-inspired ‘subsidiary protection’.110 Turkey has made an exception to this rule for Syrians, offering them a different form of temporary protection, with access to a broader category of rights. However, the rights flowing from all three forms of protection are still more limited than the protection offered to ‘European refugees’. Consequently, both Syrians and non-Syrians are deprived from full refugee status or an equivalent, resulting in problematic access to education111 and employment112.113

104

European Commission, ‘Communication from the Commission to the European Parliament, the European Council and the Council: First Report on the progress made in the implementation of the EU-Turkey Statement’, 20 April 2016, COM(2016) 231 final. 105

Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece [2015] OJ L 248/80. 106

Council of the European Union, ‘Outcome of the Justice and Home Affairs Council Meeting’, 20 July 2015, 11097/15. 107

‘EU-Turkey readmission deal in doubt’ EU Observer (6 June 2016) <https://euobserver.com/migration/133712> accessed 7 November 2016. 108

European Council Newsroom, Meeting of heads of state or government with Turkey - March 2016: press conference part 5 Q&A (8 March 2016) <https://tvnewsroom.consilium.europa.eu/event/meeting-of-heads-of-state-or-government-with-turkey-march-2016/press-conference-part-5-qa-56de38e8d4f5e>. 109

HRW, ‘Turkey: Syrians Pushed Back at the Border’ (23 November 2015) <https://www.hrw.org/news/2015/11/23/turkey-syrians-pushed-back-border> accessed 7 November 2016; Amnesty International, ‘Europe’s Gatekeeper: unlawful detention and deportation of refugees from Turkey’, 16 December 2015 <https://www.amnesty.org/en/documents/eur44/3022/2015/en/> accessed 7 November 2016; ECRE, ‘ECRE strongly opposes legitimizing push-backs by declaring Turkey a ‘safe third country’, 29 January 2016 <http://www.ecre.org/ecre-strongly-opposes-legitimising-push-backs-by-declaring-turkey-a-safe-third-country/> accessed 7 November 2016; Statewatch, ‘Why Turkey is not a ‘safe country’ (February 2016) 18 <http://www.statewatch.org/analyses/no-283-why-turkey-is-not-a-safe-country.pdf> accessed 7 November 2016 110

AIDA, ‘Introduction to the asylum context in Turkey’ <http://www.asylumineurope.org/reports/country/turkey/introduction-asylum-context-turkey> accessed 7 November 2016. 111

In 2014 and 2015 there was mention of respectively 600,000 and 400,000 Syrian children without access to education. For 2016, there is still mention of “high numbers of Syrian refugee children not attending school”, not mentioning vulnerable children of other nationalities lacking access to education (European Parliament, ‘Parliamentary question: No formal education for refugee children living in Turkey - Answer given by Mr Hahn on behalf of the Commission’, 27 May 2016). 112

In January 2016 issued new legislation to allow Syrians enjoying temporary protection to apply for work permits. Such application is, however, subject to certain residency criteria and sponsorship by an employer. As a result, a great deal of Syrians and even more none Syrians have no access to lawful employment. In August 2016 Turkey’s Labour minister announced that it will not introduce a general scheme for work permits for Syrian refugees, let alone non-Syrians, as it would be unfair to Turkish nationals facing an unemployment rate of 10 percent (‘Turkey will not give Syrian refugees right to work - labour minister’ Reuters (Ankara, 7 August 2016)

18

In response, however, the Commission and Council additionally resorted to the ‘first country of asylum’ concept in further support of the Statement.114 First, as mentioned above, Turkey has a long record of refoulement practices and recent reports show a revival of push-backs and deportations of mostly Syrians, thus contradicting an essential requirement for it to be considered a ‘first country of asylum’ in accordance with article 35 Asylum Procedure Directive. Second, the laws and policies determining a refugees’ life in Turkey arguably do not amount to “sufficient protection” in accordance with the requirements for a ‘first country of asylum’ flowing from article 35 of the Asylum Procedure Directive. Due to delays in the registration process and limited implementation of protection measures, many migrants entitled to international protection - even Syrians - do not receive the required level of protection, do not have access to stable jobs or education, and thus fall subject to poverty and exploitation.115

Despite its ambiguous legal status, it has been argued that the Statement was a factor116 in effectively curbing the number of arrivals on the Aegean Islands, together with the message about the unavailability of the Western Balkan transit corridor. Arrivals via the Aegean Sea decreased during all three months of the first quarter of 2016 but was most visible in February and March, when coordinated restriction measures were introduced at regional level and eventually the ‘Western Balkan route’ was closed down. After the total shut down in March 2016, the number of arrivals plunged to the level close to that of the same month in 2015.117

However, some of the key elements of the Statement are far from being realised in practice. From April to the beginning of October 2016 almost 13,000 migrants arrived by sea in Greece118 and only 578 migrants have been returned to Turkey due to the number of applications, the low number of immediate inadmissible applications, other legal challenges and bureaucratic chaos.119 As of 13 September 2016, around 60,000 migrants were stranded in camps all over Greece, of which 13,000 crammed into the sites on the islands.120

Furthermore, the attempted July coup and subsequent developments in Turkey could potentially destabilise the deal. There are reports of post-coup absence of Turkish police facilitating the returns at Greek detention centres,121 as well as a small rise in migrants boats departing from the Turkish coast.122 In the aftermath of the coup, EU leaders emphasised the need for Turkey to amend its terror legislation and its obligations to meet human rights

<http://uk.reuters.com/article/uk-turkey-syria-refugees-workers-idUKKCN0QC1UH20150807> accessed 7 November 2016). 113

For an analysis in depth of the Turkish legal framework for international protection, read the updated AIDA Report on Turkey: AIDA, ‘Introduction to the asylum context in Turkey’ <http://www.asylumineurope.org/reports/country/turkey/introduction-asylum-context-turkey> accessed 7 November 2016. 114

European Commission, above n 96. 115

HRW, ‘EU: Don’t Send Syrians Back to Turkey - Lack of Jobs, School, Health Care Spurs Poverty, Exploitation’, 20 June 2016 <https://www.hrw.org/news/2016/06/20/eu-dont-send-syrians-back-turkey> accessed 7 November 2016. 116

An arguably more important factor was the closure of the Balkan route as agreed by EU leaders on 7 March 2016 after a cascade of unilateral border restrictions in the Balkan region and Austria. 117

UNHCR, ‘Refugees/Migrants Emergency Response – Mediterranean: Greece’ (2016) <http://data.unhcr.org/mediterranean/country.php?id=83> accessed 7 November 2016. 118

ibid. 119

European Commission, ‘EU-Turkey Agreement: Question and Answers’ (Press release, 28 September 2016) <http://europa.eu/rapid/press-release_MEMO-16-3204_en.htm> accessed 7 November 2016; European Commission, ‘EU-Turkey Statement: Progress Report September 2016’ (Press Release, 4 October 2016). 120

UNHCR, ‘Europe Refugee Emergency Daily map indicating capacity and occupancy (Governmental figures)’, 13 September 2016 <http://www.refworld.org/docid/57e121154.html> accessed 7 November 2016. 121

‘Turkish police withdrawal from Greece stalls EU migration pact’ The Guardian (London, 31 August 2016)

<https://www.theguardian.com/world/2016/aug/31/turkish-police-withdrawal-greece-stalls-eu-migration-pact-unhcr> accessed 7 November 2016. 122

UNHCR, above n 117.

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standards for visa liberalisation.123 However, at no point the former questioned the ‘one in, one out’-aspect of the deal. Moreover, Turkey is reluctant to overhaul its terrorism laws in the near future and has been repeatedly accusing the EU of not meeting its promises.124

Lastly, the Greek Asylum Service has been implementing the deal, rejecting asylum applications on the ground that Turkey is a ‘safe third country’ and offers sufficient protection.125 However, as of August 2016, the Appeals Committees have overturned 70 out of 72 first instance decisions, by rebutting the above presumption. Subsequently, following pressure of the European Commission126 and the European Council,127 the Greek Parliament approved an amendment to its asylum law128 to modify the composition of the three headed Appeals Committees from one government representative to two, removed the possibility for asylum seekers to request a personal hearing before the Committees, and enabled the European Asylum Office to conduct interviews of applicants in the context of the exceptional procedure applied at the border.129 The context and timing give rise to serious concerns rise as regards the constitutionality of the amendment and the impartiality and independence of the Appeals Committees, in particular in view of the right to an effective remedy on the basis of article 13 ECHR and 47 CFR.130

To conclude, the deal has all but improved the conditions for migrants in or trying to reach the EU. First of all, returns to Turkey could in some cases constitute a breach of EU human rights obligations, because of Turkey’s long-standing refoulement record as well as the dire living conditions for asylum-seekers in the country, in particular the non-Syrians and vulnerable groups such as women, children and LGBTI. Second, in Greece, a country still struggling to disengage from the economic crisis, migrants face chaotic registration procedures, serious obstacles to applying for asylum, and inadequate reception conditions with lack of food and healthcare facilities. Finally, arrivals via Italy during the first five months of 2016 did not significantly decrease in comparison to 2015.131 132

123

‘Turkey won't reform terrorism law to conform with EU deal’ EU Observer (9 August 2016) <https://euobserver.com/foreign/134599> accessed 7 November 2016. 124

‘Greece on edge, as Turkish coup prompts surge in new arrivals’ EU Observer (2 September 2016)

<https://euobserver.com/beyond-brussels/134868> accessed 7 November 2016. 125

ECRE, ‘Greece amends its asylum law after multiple Appeals Board decisions overturn the presumption of Turkey as a “safe third country”’, 24 June 2016 < http://www.ecre.org/greece-amends-its-asylum-law-after-multiple-appeals-board-decisions-overturn-the-presumption-of-turkey-as-a-safe-third-country/> accessed 7 November 2016. 126

‘EU pushes Greece to set up new asylum committees’ EU Observer (15 June 2016) <https://euobserver.com/migration/133841> accessed 7 November 2016. 127

‘The Council also urged Greece’s government to explain to the country’s judges that Turkey is safe for Syrians and to review the composition and role of the appeal committees since people from civil societies are not neutral’ NewEurope (9 June 2016) <https://www.neweurope.eu/about-us/> accessed 7 November 2016. 128

Greek Parliament, Amendment No 496/25 15.6.2016 to the draft law on ‘Legal framework for the establishment of regimes for Strengthening Private Investments for the regional and economic development of the country – Establishment of Development Council and other provisions’, available in Greek at <http://www.hellenicparliament.gr/UserFiles/bbb19498-1ec8-431f-82e6-023bb91713a9/9623744.pdf >. 129

AIDA, ‘Greece: Appeal Rules amended after Rebuttal of Turkey’s Safety’, 16 June 2016 <http://www.asylumineurope.org/news/01-07-2016/greece-appeal-rules-amended-after-rebuttal-turkeys-safety> accessed 7 November 2016. 130

Mariana Gkliati, ‘Greece creates new Asylum Committees after decisions blocking returns under the EU-Turkey deal’ Leiden Law Blog (5 August 2016) <http://leidenlawblog.nl/articles/greece-creates-new-asylum-appeals-committees> accessed 7 November 2016. 131

Frontex, ‘Central Med Remained under migratory pressure in May’ (Press release, 16 June 2016) <http://frontex.europa.eu/news/central-med-remained-under-migratory-pressure-in-may-9Wtxug> accessed 7 November 2016; UNHCR, ‘Refugees/Migrants Emergency Response – Mediterranean: regional overview’ (2016) <http://data.unhcr.org/mediterranean/regional.php> accessed 7 November 2016. 132

Importantly, the reason for additional use of the ‘Central Mediterranean route’ in 2016 arguably does not lie in changes in the route patterns of migrants stranded in Turkey, but in the increasing number of migrants coming from West Africa and the Horn of Africa, as well as the growing number of departures from Egypt.

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4. CONCLUSION

The picture that emerges from the evaluation of EU policies and actions is a mixed one. On the one hand, it cannot be denied that instruments of sea borders surveillance and cooperation with third countries have now generally included human rights safeguards. The new EBCG Agency now includes a new internal complaint mechanism and must report more information to the Parliament and the Council on the impact of its activities on human rights, which represents significant progress compared to the former Frontex Agency. The Council Decision establishing Operation Sophia also explicitly states that it will be conducted in accordance with the principle of non-refoulement and international human rights law. Even the more controversial EU-Turkey Deal committed to protect all migrants ‘in accordance with the relevant international standards and in respect of the principle of non-refoulement’.133

On the other hand, uncertainty remains as to the implementation, monitoring and control of these human rights safeguards. Without clear accountability measures, there is no guarantee that the principles referred to in the above instruments will be duly complied with at all times of the migratory process. Furthermore, the primary aim of existing EU external migration policies is to stem the influx of migrants. The recurring tragedies off the coasts of the Mediterranean should however prove the limits of repressive measures against migration and send a strong signal to the EU to adjust its policy priority toward the rescue of migrants and the protection of their most basic human rights.

133

EU-Turkey statement, above n 94.

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