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By Eleonora Frasca and Dr. Francesco Luigi Gatta, Université Catholique de Louvain, UCLouvain (Belgium), members of the Equipe droits et migrations (EDEM)

 

While the New Pact on Migration and Asylum remains stuck in Brussels between negotiations and renewals of the Council’s presidencies, ‘emergencies’ routinely shaken the EU migration and asylum governance and prompt a plethora of soft law solutions. These acts have been mushrooming in the last few years. The most recent example is the EU Action Plan for the Central Mediterranean, presented on 21 November 2022 by the Commissioner for Home Affairs and later endorsed by the extraordinary JHA Council on 25 November 2022. It lists 20 actions ‘to address the immediate and ongoing challenges along the Central Mediterranean route’.

The trigger: A new government in Italy

The document does not clarify the distinction between ‘immediate’ and ‘ongoing’ challenges. If one had to guess, the former arose in Italy in October 2022 after the new Prime Minister, Giorgia Meloni, came to power. Between November and January 2023, the Italian government adopted a series of measures targeting NGO rescue vessels drastically reducing the effectiveness of their activities in the Mediterranean while multiplying their costs (e.g. by reallocating disembarkation at a far distant port). A decree concerning the ship ‘Humanity 1’ prevented it from stopping over in the Italian waters beyond the time necessary to ensure the disembarkation of vulnerable people while the remaining individuals were left on board (the ‘residual cargo’, in the Interior Minister’s objectifying words). Similarly, the ship ‘Ocean Viking’ was denied a safe port by Italy for several days until France allowed disembarkation in Toulon, thereby generating a highly mediatised controversy between the two countries over responsibility for the reception of rescued migrants (see ECRE).

The Action Plan for the Central Mediterranean is an attempt to overcome disagreement between Member States and avoid the risk of breaking the relocation deal of June 2022 (see below). Disagreement was expressed in a Joint Declaration by Italy, Greece, Malta and Cyprus – ‘the countries of first entry into Europe’. In yet another informal document, released just a few days earlier than the Commission’s Action Plan, the governments of these countries affirmed that they ‘cannot subscribe to the notion that countries of first entry are the only possible European landing spots for illegal immigrants, especially when this happens in an uncoordinated fashion based on the basis of a choice made by private vessels, acting in total autonomy from the competent state authorities’.

Last but not least, on 2 January 2023, the Italian government issued a new decree which provides a controversial framework for NGOs vessels carrying out search and rescue operations at sea (see Giuffré). Among other provisions, it lays down the obligation for rescue vessels to disembark rescued migrants without delay in the assigned port often located far from the rescue area, for example, in Central or Northern Italy. By denying disembarkation at the closest place of safety, this rule prolongs the suffering of those saved and delays the provision of adequate assistance to meet their basic needs. NGOs vessels are also not allowed to carry out multiple rescues at sea and forced to ignore other distress calls in the area, even when there would be capacity onboard to carry out another operation. This rule is at odds with rescue duties under international law and Italy’s obligations vis-à-vis people in distress at sea.

Among bitter criticisms, the Council of Europe Commissioner for Human Rights Dunja Mijatović (who had already criticised Italy’s cooperation with Libya in the past) has requested Meloni’s government to consider withdrawing the decree or amend it significantly to comply with international law obligations. Nevertheless, Italy pointed out in its prompt reply the relevant contribution the decree will give to the fight against irregular migration and trafficking in human beings.

The context: The situation in the Central Mediterranean

The statistics reported by the Commission in the opening of the document (without citing any source) witness an increase in irregular arrivals via the Central Mediterranean ‘of over 50% in comparison to 2021’. By referring to this data alone, the Commission trivializes the complexity of the underlying migration dynamics in the Mediterranean. It disconnects the persistence of irregular migration from the reasons why people migrate irregularly to the EU, such as the restrictive EU visa policies and the contextual lack of safe and legal pathways to the EU, which affect both protection seekers and those drawn from the cheap labour demand in the EU Member States. Moreover, by not reporting on attempted crossings, including those who are intercepted at sea and pulled back to North Africa and migrants who died or went missing, the Commission fails to acknowledge the persistent harm caused to migrants by this structural situation and the increase danger they face while crossing.

Besides the primary political objective of preventing irregular migration from Africa, the Action Plan insists on ‘solidarity’, a word mentioned 16 times in the document. As a matter of fact, this is nothing new. There have been numerous attempts to address the ‘ongoing challenges’ in the Central Mediterranean recently. In 2019, the Malta Declaration failed to address the complexity of the situation resulting from the national (Italian) ‘closed-door’ policy. This policy, openly at odds with international law (our analysis in this blog), has created a de facto decoupling of search and rescue and responsibility over rescued migrants. While NGOs vessels were denied a safe port after rescue at sea, government-driven negotiations identified a place of safety for rescued migrants’ disembarkation, sometimes in Italy, and subsequent relocation to other Member States.. Later, in June 2022, another Declaration on a ‘voluntary solidarity mechanism’ was adopted by a group of Member States under the auspices of the French Presidency of the Council, which set up another ad hoc (and ‘temporary’, says the Commission) system to relocate refugees from the EU’s Mediterranean Member States to other Member States (analysed here). However, it only took a few months until the Italian government breached the mechanism by unilaterally refusing disembarkation of rescued migrants, implementing a ‘semi-closed door’ policy.

What unites all these informal initiatives is that they fall outside the EU legal framework and give preference to an intergovernmental, asymmetric and unequal notion of solidarity, as not all Member States participate.

Why this Action Plan?

The designation ‘Action Plan’ is commonplace in the EU policy jargon on migration (e.g. Joint Valletta Action Plan, EU-Turkey Joint Action Plan). The Action Plan for the Central Mediterranean requires ‘joint’ efforts from the Member States and certain third countries. The objective is two-fold.

First, it works as an admonishment to the Member States (the Council) and the European Parliament, which shall ‘enable the adoption of all the proposals under the Pact on Migration and Asylum before the end of this legislative term [in May 2024] to ensure that a sustainable solution is put in place balancing solidarity and responsibility’ (p. 4), based on the Joint Roadmap of 7 September 2022. The New Pact, which the Commission itself put forward, is presented as the primary ‘structural solution’ to the ‘challenges’ in the Mediterranean. Therefore, this Action Plan serves as a reminder of the pending reform of EU migration and asylum law. However, the Swedish presidency of the EU Council, which began in January 2023, does not seem to prioritise progress on the New Pact.

Second, it calls for increasing coordination mechanisms among the Member States and relevant EU actors (Frontex and the newly established European Asylum Agency), as well as increasing cooperation with non-EU actors, such as third countries (Tunisia, Libya, Bangladesh, Niger and Egypt) and international organizations (UNHCR, the IOM, but also the International Maritime Organization (IMO).

Called ‘actionable commitments’, the 20 measures proposed in the EU Action Plan for the Central Mediterranean are highly varied in content. The Commission groups them under three pillars, but their distribution is uneven (and so will be our analysis): 13 concern third-country cooperation on migration (pillar I), four Search and Rescue at sea (pillar II) and three the implementation of the voluntary solidarity mechanism of June 2022 (pillar III).

Pillar I: Third-country cooperation on migration

Most of the solutions proposed by the Commission in the Action Plan for the Central Mediterranean build on pre-existing forms of cooperation with third countries, in line with the New Pact (see García Andrade on this blog). If it is true that the Valletta Action Plan ‘sowed the seeds for enhanced migration cooperation with African countries’ (p. 12), its commitments would be devoid of legal effects if a conspicuous amount of funding did not accompany them, such as the EU Trust Fund for Africa, which involves 27 African countries.

EU funding (mainly but not only NDICI—Global Europe instrument) enables the implementation of all the points on the list linked to third-country capacity building. The main ways to attain the objectives of the Union in its external relations on migration are the financing of domestic law reforms (for instance, in the field of international protection, by stimulating increasing compliance with international refugee law) and the financing of domestic law enforcements’ operations (for instance the enforcement of search and rescue obligations or against the smuggling and trafficking of human beings). The only reference to legal migration is that of ‘Talent partnerships’, which have limited potential because African migration for work purposes is dominated by Member States’ powers over access to their labour markets (see Farcy and Sarolea on this blog).

The Commission also references two mechanisms for pursuing ‘external’ cooperation on migration with third countries: the Operation Coordination Mechanism for the External Dimension of Migration (MOCADEM) and the proposal for a ‘Team Europe’ initiative. The former consists of an internal coordination mechanism of the different Council’s groups focusing on different subjects (e.g. visa, expulsion, development) or having different geographical focuses with the aim of improving the work of Coreper in the areas relevant to the relationships between the EU and third countries in the field of migration, thus ensuring unity and coherence in the pursuit of EU external migration objectives. The Team Europe initiative on the Central Mediterranean ensures external cooperation with non-EU actors. Building on the Joint Valletta Action Plan and the EU-AU Joint Vision for 2030, an ad hoc Team Europe Initiative for the Central Mediterranean was officially launched on 12 December 2022 with EUR 1.13 billion funding, bringing together EU actors, the EU Member States and third countries (i.e. Commission and the EEAS, 10 Member States, Switzerland and 13 African States). For instance, return and readmission are fields in which both internal coordination and external cooperation are sought in practice: an EU Return coordinator, Mari Juritsch, was appointed on 2 March 2022, and the High-Level Network on Returns first met on 8 September 2022. The Action Plan also foresees an increasing presence of Frontex on the African States’ territory and now, for the first time following the reform of its mandate, of the EEA.

Ultimately, both mechanisms testify to the fundamental importance of migration in current EU external relations and enlist all kinds of informal means to achieve the EU’s objectives, including political and diplomatic approaches and conditionality. As if in tandem, the more the political bargaining on EU migration law stagnates in the internal dimension, the more the solution will be sought externally, almost as if it was easier for the EU to obtain cooperation from third countries than from its own Member States.

Pillar II: Search and Rescue at sea

Search and rescue is presented as ‘an integral part of European Integrated Border Management’ and the Commission envisages enhanced cooperation between Member States through knowledge sharing and practical coordination among coastal and flag States, in particular in the case of private vessels, calling for a ‘targeted assessment of the situation in the Mediterranean’ by Frontex.

The Commission also calls for cooperation with UNHCR and the IOM in ‘regional approaches to search and rescue’, directly followed by a UNHCR document on the roles and responsibilities of States about rescue at sea, non-refoulement, and access to asylum in December 2022. Then, it also calls for ‘discussions’ within the International Maritime Organization ‘on the need for a specific framework and guidelines for vessels having a particular focus on search and rescue activities, particularly in view of developments in the European context’.

In recent years, most of the EU discussions over search and rescue in the Mediterranean have focused narrowly on the activities of private vessels, as shown both by the Commission’s recommendation 2020/1365 and by the increase in the administrative and criminal judicial scrutiny over these activities. However, the Commission repeatedly fails to address the elephant in the room, namely that NGOs are filling the substantial gap left by the Member States in the absence of ‘a permanent, robust and effective Union response in search and rescue operations at sea’, as called for by the European Parliament already in 2016. Borrowing from the words of advocate general Rantos in the Sea Watch case (commented here), it is time that the EU confronts ‘the increasingly serious situation relating to the safety of persons crossing the Mediterranean Sea’ and prevents deaths at sea.

Pillar III: Voluntary Solidarity Mechanism,

As for relocation, the Commission expects coordination among Member States via the ‘Solidarity Platform’, another coordination structure established to ensure and monitor the respect of the commitments that States had undertaken under the Voluntary Solidarity Mechanism of June 2022 which does not look promising. This point is equally dedicated to emphasising the temporariness of the mechanism in view of the adoption of the New Pact proposals, which foresees a permanent relocation mechanism among the EU Member States (see Maiani on this blog).

After the unfortunate and controversial experience of the 2015 emergency relocation schemes, since 2018, relocation has been voluntary (through a system of pledges or ‘exercises’ in the Commission’s words), either upon the initiative of the Member States (e.g. the Malta declaration) or upon the initiative of the Commission (e.g. Action plan on measures to support Italy and Action Plan for measures to support Greece of 2020). The latter was set up for the voluntary relocation of unaccompanied minors, vulnerable asylum seekers and beneficiaries of international protection from Greece to other EU countries.

The European Commission’s proposal for a regulation on asylum and migration management of 2020 represents a way to legalise – by absorbing and consolidating – these ad hoc relocation measures into the Union’s legal framework in a process of hybridisation from informal, contingent and temporary solutions to formal and permanent mechanisms while keeping the voluntary style of participation as for the type of mandatory solidarity. In the EU Action Plan, the Commission refers to the regulation’s mechanism as ‘the future permanent system under the Pact’ .

Conclusion

Soft law documents and goodwill alone will not solve the structural problems of the EU migration and asylum policy (solidarity and shared responsibility). Those are currently at the mercy of the Member States, including changes of their political majority. Consequently, they are mainly handled through crisis dynamics – such as the one we have just described – and are destined to become cyclical. With the EU Action Plan for the Central Mediterranean, the Commission tries to minimize this renewed political disequilibrium.

Welcomed as ‘a waste of time’ or as a document ‘recycling old mistakes’, the document adds to the pile of pacifying political declarations filling the gap of the stagnating law-making machinery. The disenchanted gaze of the Commission over the situation in the Mediterranean seems yet another promotional activity of the New Pact on Migration and Asylum which is informed by a logic of deflection of protection responsibility, relying heavily on third countries to prevent migration from Africa while the EU withdraws from its international human rights obligations towards migrants, including asylum.

While the Rule of Law at the EU external borders is deteriorating between pushbacks, ‘semi-closed’ ports and prolonged detention in transit zones, the true challenge in the Mediterranean is the increasing danger migrants face while crossing it. The EU itself fuels part of that danger by cooperating with Libya in interceptions at sea, by not actively engaging in dedicated search and rescue operations, by failing to facilitate NGO rescue vessels’ activities and by denying safe and legal entry channels to migrants, particularly for people in need of international protection. Without a proper framework for implementation, elaborated in the context of a legitimate, transparent and EU-driven decision-making process, the Action Plan is destined to belong to the already long list of EU (in)actions that are running countless in the history of EU answers towards migrant journeys in the Mediterranean. We wrote this in this blog about three years ago with regard to the Malta Declaration. The same holds true today.