Legal Obstacles to an 'Australian solution' for Migrants in the Mediterranean

admin - 12th June 2015

Unconvincing EU commitment over the past month and increased number of migrants sparked a far–right round of calls in Europe for drastic action to tackle the massive influx of migrants in the Mediterranean Sea. Moreover, Australian PM Tony Abbot claimed the EU sought advice on how to solve the migrant crisis. The EU Commission took a stance on the matter, rebuffing Abbot’s claims. But could Europe resort to the Australian model?

The ‘Australia solution’ refers to a set of measures otherwise termed the ‘Pacific Solution’ (2001-2007), and, since 2013, ‘Operation Sovereign Borders‘. What do these entail? With the view of stopping arrivals by sea, since 2001 the Australian navy has been intercepting ships that carried asylum seekers, relocating these people to detention centres outside Australia migration zone or in other transit countries. This policy, later dismissed by the Labour Party, was hardened by the Liberal-National coalition after coming to power in 2013: it towed back boats, reopened detention centres on Manus Island and Nauru, and denied migrants detained offshore any possibility to reside in Australia, even if found to be genuine refugees. If adopted in Europe, this would potentially mean patrolling the Mediterranean -which the EU is currently doing- and sending the migrants intercepted at sea towards neighbour countries, namely those on the southern shore of the Sea.

Set aside the dispute on the morality of the solution, there are obstacles, in the current EU legal framework, towards the transposition in the Mediterranean of the Pacific solution.

  • First, international refugee law binds EU Member States (Art 2 and 3(5) TEU). The non-refoulement principle (most notably enshrined in Art 33 Refugee Convention) prevents states from returning migrants to places where their safety would be at stake. This, on paper, binds Australia as well- which also accounts for the harsh criticisms its policies have received, because the migrants held in offshore detention centres have been reported to suffer human rights violations. So, could the EU instead agree with its neighbours to detain offshore the migrants intercepted? Arguably, some Mediterranean countries to which the EU may return the migrant may be unsafe: the ECtHR has expressed this view with reference to Libya and Tunisia (…and, to be fair, even to Greece). Were the EU to send migrants to such third countries, it would systematically violate its core obligation of non-refoulement (see also Articles 18 and 19 EU Charter of Fundamental Rights).
  • Second, Australian asylum law does not apply to offshore territories and the high seas (which fall outside the Australian migration zone), whereas EU asylum directives do not contain such territorial restrictions. Moreover, the European Court of Human Rights has ruled (Hirsi case) that EU countries have to respect human rights obligations even in the high seas, whereas in similar factual circumstance, Australian courts did not hold the same view (Tampa case, though with no direct reference to Human Rights).
  • Third, bilateral agreements between the EU and its southern neighbours (eg Morocco), as well as other missions, already established solutions based on cooperation which have little to share with an Australian-like organisation.

The EU could concentrate on tackling the remote causes for migration rather than the phenomenological aspect- as stopping boats in the Mediterranean amounts to a Sisyphean task. Especially since the number of people trying to reach the EU by sea is significantly higher than those aiming to Australia. It is easier to find and stop boats (this is the EU Triton border control mission) or at least to search and rescue vessels (it was the mandate of the Italian operation “Mare nostrum”) rather than eradicating factors like war and extreme poverty that lead to massive migration. However, since the real problem lies elsewhere than the sea, the most pragmatic solution is strengthening international cooperation for areas, such as Syria and sub-Saharan Africa, which ingenerate in people such a desperate urge to leave. To provide those regions with political stability to overcome financial economic indigence means taking action to remove the roots of the problem and offering a responsible political answer to the disasters that occur in the Mediterranean.

In conclusion, the tragedies in the Mediterranean call for the EU to react with an attitude focused on the sources of the problem, and allowed by its laws, rather than with a lesson from a totally different and insular reality.

Author profile

Luigi Lonardo holds an LLM in EU Law (King's College London). He will be a PhD student at King's College London from September 2015

Citations

Luigi Lonardo ‘Legal Obstacles to an ‘Australian solution’ for Migrants in the Mediterranean’ (OxHRH Blog, 12 June 2015) <http://ohrh.law.ox.ac.uk/legal-obstacles-to-an-australian-solution-for-migrants-in-the-mediterranean/>[Date of Access]

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