Respect rights, even on the high seas
The EU’s external borders agency should not have the power to deny people their basic human rights
A European coastguard ship participating in a Frontex operation spots a small motorboat in the Mediterranean. It is still in international waters but moving toward Maltese waters. The people on board – crammed together in too small a space, creating too much weight for the small boat – have been travelling for days exposed to the elements and are running out of food and water. They are young men looking for a better life, unaccompanied children, and women being trafficked to Europe: they are people of all ages fleeing persecution and conflict.
What should the Frontex patrol boat do? According to the European Commission’s recent proposal, unless the boat is in distress, Frontex should prevent the boat from entering European Union waters. It should order it to change course and if necessary escort it or the people on board to the country from which it set sail.
Frontex, the EU’s external borders agency, is already empowered to block boats from entering EU waters, under regulations adopted by the European Council in 2010. Last September, the European Court of Justice annulled those regulations because they were adopted without the necessary European Parliament scrutiny, but left them in operation until new regulations could be drawn up.
The Commission’s proposed new regulations, submitted in mid-April, are up for discussion today (6 June) in the EP civil liberties committee. But they do not go far enough to prevent wrong and dangerous decisions with enormous consequences for people’s lives.
To be fair, the proposal improves on current regulations by stressing respect for fundamental rights and requiring Frontex patrols to screen people on board and “assess their personal circumstances to the extent possible before disembarkation”.
Patrols should take into account the human rights situation in the country to which the boat would return. Patrols, which should be trained in human rights and refugee law, would have to inform people on board of the decision and allow them to raise any fears.
But that is not enough. All EU institutions, including Frontex, are bound to respect the Charter of Fundamental Rights, which includes the right to seek asylum. These obligations apply where Frontex has jurisdiction, within EU territorial waters. But they also apply when it has control or custody – when there is physical contact of any sort, even in international waters. The high seas are not the place to be making snap judgments about who needs protection or otherwise deserves to be admitted to EU territory and who does not.
How and where will interviews be conducted, who will be present, will there be interpreters? What sources will patrols use for information on countries of disembarkation? The proposal is silent on these crucial matters. Think of the child travelling without a parent or guardian: he will not be able to express his need for protection if his trafficker or “handler” is within earshot.
Though the proposal makes reference to Hirsi v Italy, the landmark 2012 judgment from the European Court of Human Rights that condemned Italy for its push-backs to Libya, the Commission appears to have been selective in instancing the lessons of that ruling. The court found that these push-backs amounted to collective expulsions and exposed people to torture and cruel, inhuman, or degrading treatment in Libya or their countries of origin.
It also found that Italy had denied people on the migrant boats their right to an effective remedy – in this case an appeal, with their return to another country suspended until it is decided. There is nothing in the proposed Frontex regulations that would guarantee this basic safeguard against a dangerous or unjustified return.
In its September 2012 ruling, the European Court of Justice said the European Parliament had to be involved because the Council regulations gave Frontex powers that could interfere significantly with people’s fundamental rights. It is now up to Europe’s democratically elected parliament to make sure the rights of boat migrants are fully respected.
Judith Sunderland is senior Western Europe researcher at Human Rights
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