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By Achilles Skordas, Professor of International Law, University of Bristol; Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg.

 

In the first part of the blogpost, I discussed the Twenty-Day Greek-Turkish Border Crisis in its legal and geopolitical context. Assuming that prima facie the decisions of Greece to block the mass influx of migrants into the country (and into the EU) and to suspend the right to request asylum for a month were inconsistent with EU refugee law, I explored whether these measures could be justified under the ‘necessity clauses’ of Arts. 72 and 347 TFEU. Indeed, considering the confrontational posture of Turkey against  Greece, Cyprus, and the EU over a longer period of time, and the multifaceted conflict systems in the Southern and Eastern Mediterranean (Turkey-Libya-Greece, Greece-Cyprus-Israel-Turkey, Turkey-Israel, Turkey-Greece, Turkey-Cyprus, EU-Turkey-Syria-Russia) the guided exodus was the final straw in a much bigger and labile geopolitical antagonism. The course of events created a national security emergency for Greece because of the unpredictability of the quickly evolving situation, including in particular the uncertainty over Turkey’s strategic objectives and the enormous socio-economic consequences of a mass influx. For the EU, the fear over a ‘new 2015’ was the primary reason for its support to the Greek action. I argued that Greece could justify its actions, taken for a relatively short period of time, on the basis of the necessity clauses, which were conceived for this kind of crises.

III. Human rights law, refugee law, law of the sea, Palermo Protocols

The questions to be discussed in this part are broader in character and affect some aspects of the international legal framework on migration to Europe. I obviously do not cover all aspects of the problem and my analysis is ‘fragmented’, just like the normative framework itself. My purpose is to offer some limited guidance on whether there exists a normative expectation for irregular migrants, including asylum-seekers, to reach the territories of the EU, as they depart from the countries of origin and commence their dangerous journey.

1. Human rights and refugee rights

The mainstream approach favoring an extensive interpretation of human rights law has come under critique in the last couple of years, but I want to rely on one important opinion that may have foreshadowed the change of direction of the ECtHR. In her Thomas-Franck Lecture of the Berlin Potsdam Research Group, Angelika Nußberger, Vice-President of the European Court of Human Rights (ECtHR), was straightforward in her critique to the judicial practices and policies of the Court: “What is demanded, in my view, is a sort of Realpolitik in human rights law. The Court can be proud of its achievements in human rights protection. But this progress came at a certain price: The threat to the rule of law with an all too expansive interpretation of treaty provisions far beyond what could be reasonably expected” (cited by G. Nolte, Treaties and Their Practice – Symptoms of their Rise or Decline, Nijhoff, 2018, p. 114 f.).

The calls for a functional human rights jurisdiction corresponds to the trends criticised by Vice-President Nußberger. In its Decision in M.N. and others v. Belgium of 5. May 2020, the Grand Chamber of the ECtHR outright rejected this approach and confirmed its previous jurisprudence on jurisdiction, including the principle of territoriality, and, as an exception, of extraterritorial jurisdiction in instances of  effective control or exercise of public powers and authority on a foreign territory for the maintenance of security.  The recent judgement of the Grand Chamber of the ECtHR in ND and NT v. Spain (commented on this blog here) sent another strong signal for the rethinking of the scope of the prohibition of collective expulsions by Strasbourg.

The spirit of the recent jurisprudence indicates a more deferential legal approach on migration controls and management and signifies the possibility of a different take on the situation at the Greek-Turkish border than the human rights community would prefer. The main questions in this context are whether the Greek action constitutes a prohibited collective expulsion of migrants who succeeded in ‘setting foot’ in the Greek territory, a violation of  Art. 3 ECHR, a violation of the principle of non-refoulement (Art. 33 Refugee Convention) or a violation of the right to seek asylum at the border.

A sweeping assessment that would declare the preventive and deterring police actions at the Greek-Turkish borders as violations of the above rights would have serious consequences. It would mean that violence at the border should not justify police action pushing the attackers back, but would imply that these individuals should be allowed to enter the country as asylum-seekers, as soon as they come into physical contact and altercation with the border guards, thus under Greek jurisdiction. Therefore, a violent attacker should be presumed to make a statement of will asking for protection.

This would ultimately imply that there is practically an obligation for EU Member States to keep the Union’s external borders open in most, if not in all, circumstances of mass and sudden influxes, and to facilitate the irregular entry of individuals in Union territory. It is difficult to believe that the European Courts would accept such a reasoning. That said, some aspects of the conduct of the Greek police may be inconsistent with human rights law. The rough treatment of those attempting to enter Greece might well constitute a violation of Art. 3 ECHR.

2. Reaching Europe by sea: A normative expectation?

Similar questions might arise with regard to the arguments that those coming from Sub-Saharan Africa have a right to leave Africa by sea in order to attempt to arrive to Europe, that they have an expectation to be rescued and be brought to a (European) safe port, and, finally, not be returned, even if they have no right to protection under EU law and the Geneva Convention, because return would allegedly violate their Art. 3 ECHR rights. I do not exclude that there may be situations that fit into this chain of argument. However, it is often ignored that this construction is so heavily fact-dependent, that it constitutes a possible scenario and not a coherent legal principle. Moreover, many of the arguments in the chain are construed in such a way that the gaps and inconsistencies are dressed in a legal language that hides policy objectives.

Under the law of the sea, States are the dominant actors, even though the masters enjoy considerable discretion, due to the circumstances of  navigation. Art. 98 United Nations Convention on the Law of the Sea (UNCLOS) creates an obligation ‘to render assistance to any person found at sea in danger of being lost’. This provision obliges directly only States; duties of rescue and assistance are ‘to be laid upon a master by national law’ and are ‘heavily qualified’ (Guilfoyle, Art. 98, in Proelss, UNCLOS Commentary, MN 7,10). However, Regulation 33(1) of part V of the International Convention for the Safety of Life at Sea (SOLAS), has a different formulation, namely that ‘the master of a ship at sea …. is bound to proceed with all speed to their assistance …’ and ‘has the obligation to provide assistance.’ The Regulation does not necessarily create a direct obligation for the masters under international law, but binds them through direct effect in domestic law (Proelss, Law of the Sea and Refugee Law, in:. Øystein Jensen, Elise Johannsen and Nele Matz-Lück (eds.), Interaction of the Law of the Sea with other fields of International Law, forthcoming 2021). Having an obligation of due diligence, the flag State may regulate (and authorise) the operation of professional rescue vessels of private organizations that should satisfy the standards for the protection of life at sea.

Under the law of the sea, there is no ‘right’ to conduct rescue missions, but NGO vessels enjoy the freedom of navigation with the related prerogatives and limitations. Thus, they cannot patrol the territorial sea of a third State, because this is not ‘passage’ (Art. 18(2) UNCLOS) and they cannot violate or ignore the immigration laws of the coastal State, because this would make the passage ‘non-innocent’ (Art. 19(2)(g) UNCLOS). Obviously, they have the duty to rescue those in distress within the territorial sea, as long as the authorities of the coastal State do not take the initiative. As Maritime Rescue Coordination Centers (MRCC) under the International Convention on Maritime Search and Rescue (SAR) are exercising a form of international governance by coordination, private rescue vessels are generally obliged to cooperate with the on-scene coordinator without regard to the maritime area (SAR Convention, Annex 4.7).

Furthermore, there is no right of the master to enter the ports of a State without the latter’s authorisation. This is a generally recognised rule of the law of the sea, but there also exists a customary right to enter the ports in situations of distress. Here, Barnes makes the distinction between distress and duress: ‘Arguably, if the reasons for seeking entry to a port is to disembark asylum-seekers in accordance with their demands, then it would seem that the situation is one of duress rather than distress and the coastal State will be quite within its right to refuse entry’ (here at 61). But, even if the vessel is given access to a port, there is no general right for the migrants to disembark at a specific port, or for the master to request disembarkation, even though this is heavily context-dependent (Guilfoyle, Art. 98, MN 10, in Proelss, UNCLOS Commentary).

In particular, the IMO recognizes that the need to avoid disembarkation in territories where asylum-seekers and refugees might be at risk is ‘a consideration’, but it adds that these issues are ‘beyond the remit of IMO, and beyond the scope of the SOLAS and SAR Conventions’, and calls States and international organizations to cooperate to resolve the problems that might emerge (IMO Resolution MSC.167(78), 20 May 2004,  6.17, 6.21). Thus, masters can defy the MRCC in exceptional circumstances, but they bear the burden of proof that this was necessary.

Situations of distress can be managed in a variety of ways in the port area, and migrants may be asked to embark on another vessel, whilst disembarkation may be limited to those with serious health issues. Regarding Art. 3 ECHR, the recent practice of the ECtHR may illustrate this point. In an interview to SPIEGEL Online given on 8. July 2019, Carola Rackete, captain of the rescue ship Sea-Watch 3, argued as follows with regard to her application to the ECtHR asking to disembark in Italy on the basis of Arts. 2 and 3 ECHR: “Then we tried at the European Court of Human Rights. Thirty-four of the rescued people on board and myself, as captain, filed the complaint, but it took a lot of time.”

How much time is ‘a lot of time’ for an emergency? The application to the Court was submitted on 21. June 2019, and the Court decided not to indicate interim measures on 25. June, i.e. four days later. Arguably, four days is ‘a lot of time’ in the alleged context. However, the Court was clear: All persons requiring medical attention were already evacuated, ten of them on 15. June, and the last one on 21. June, the date of the submission of the application. Therefore, the thirty-four applicants were those who had no medical necessity  (see press release  ECHR 240/2019). The claim for a right to disembark in order to apply for international protection or to be taken to a safe place was not accepted at that stage of the procedure. Later, Italy declared its ports as unsafe for health reasons until the end of the pandemic emergency (here and here).

The disembarkation of migrants has to be agreed by the States concerned, which may decide on their resettlement. The Joint Declaration of Intent on a Controlled Emergency Procedure – Voluntary Commitments by Member States for a Predictable Temporary Solidarity Mechanism (known as the Malta Declaration) of 23 September 2019, taken in accordance with Resolution MSC.167(78) of the International Maritime Organisation (IMO) (MSC 78/26/Add.2) offers an example of such an international practice, but should preferably include also MENA countries, which are close to the areas of rescue.

Ultimately, there is no ‘right to be rescued’,  taken in a comprehensive sense that includes rescue in a narrow sense, entering into a port and disembarking, either under the law of the sea, or under human rights law, or even under a contextual interpretation (see Proelss, Law of the Sea and Refugee Law in:. Øystein Jensen, Elise Johannsen and Nele Matz-Lück (eds.), Interaction of the Law of the Sea with other fields of International Law, forthcoming 2021; and Papastavridis here).

3. Refugee-generating policies and the Palermo Protocols

Let us return to the Greek-Turkish border crisis. Social and economic cost, or existential threats to the stability of the Union, Italy, or Greece, do not seem to be a concern for some. After all, they may believe that privileged Europe must pay for its sins and for its capitalism, one way or another, and this is why Greeks were the ‘good victims’ for the anti-austerity ‘rebellion’, but their problems are irrelevant now. But here is the catch: What if Turkey’s action to move migrants to the Greek border was itself a violation of human rights? What if there is an international State responsibility for generating refugee flows? Already in the mid-1980s, Rainer Hofmann called for the application of the law of State responsibility against refugee-generating policies. What if Turkey has committed an internationally wrongful act as a State-sponsor of smuggling and trafficking, by transporting migrants to the borders of another country, and/or by convincing them by fraud and deception that the borders were open, and by encouraging and facilitating the activities of organised transnational criminal bands? What should be the response to the facilitation and encouragement of violations of the Palermo Protocols?

Here are some examples of relevant rules: According to Art. 2 of the Smuggling Protocol, ‘the purpose is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end….’. Moreover, Art. 3(a) defines smuggling of migrants as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’. Art. 6(2)(c) also obliges States to criminalise conduct consisting in ‘organizing or directing other persons to commit an offence established in accordance with paragraph 1 of this article’. Part III of the Protocol includes measures for prevention and cooperation (Arts. 10 et seq.). In particular, Art. 11 provides that ‘…States Parties shall strengthen, to the extent possible, [..] border controls as may be necessary to prevent and detect the smuggling of migrants.’

Turkey clearly violated numerous aspects of the obligation of cooperation to prevent and combat the smuggling of migrants. As the known facts and official public statements prove, Turkish officials guided the movement of migrants to the Greek border. If Turkish officials have also encouraged and facilitated the actions of smugglers, they may also incur individual criminal responsibility under Art. 6(2)(c) of the Protocol and Turkey may face international responsibility for not launching criminal investigation against these individuals. This sequence of events and the violation of multiple provisions of the Protocol should also be taken into account when making the legal assessment of the Greek response.

By closing the border, Greece ensured that Turkey did not succeed in making the Protocols obsolete, prevented the illegal en mass border crossings, and preserved the effet utile of the Protocols. The enforcement of the Protocols by the Greek authorities corresponds to the obligations of Turkey under the law of State responsibility ‘to cease the wrongful conduct and ‘to re-establish the situation which existed before the wrongful act was committed’ (ILC Articles 30 and 35, Responsibility of States for internationally wrongful acts, UNGA Res. 56/83, 28.01.2002, my italics).

Here is some info on the smuggling business: Elizabeth Collett of the Migration Policy Institute (MPI) wrote the following, referring to the summer of 2015: ‘As the Turkey-Greece route has come to dominate flows to Europe, Turkish smugglers pocketed a profit of more than $200 million over the summer alone, charging up to $1,200 per person for an all-too dangerous boat crossing—representing just the tip of what has become a deeply troubling iceberg’(here). Daniel Adamson and Mamdouh Akbiek of the BBC World Service reproduced the following statement from the Facebook page of a Libyan smuggler in May 2015: ‘With the beginning of the new season we have a range of journeys on offer. Turkey Libya Italy, $3,800. Algeria Libya Italy, $2,500. Sudan Libya Italy, $2,500… The boats are all wood… If you have questions, contact me on Viber or WhatsApp’ (here).  According to the Frontex Risk Analysis for 2020, migrants ‘purportedly paid up to EUR 10,000’ for the journey between Turkey and EU (p. 25).This is how the big business of smuggling works. Obviously, the business is responsible for deaths: here is a detailed description of the 2019 Essex incident.

A last comment on the 1951 Refugee Convention, which is still the constitutional text for refugee protection. The Convention recognises no right of asylum-seekers to choose the country of their destination or request ‘a better life’ somewhere else. Apart from its specific aims (non-refoulement and protection of the rights of refugees according to the standards and distinctions of the Convention, Most Favoured Nation clause, non-discrimination, national treatment or treatment accorded to aliens generally), the function of the Convention is to enable States to manage refugee flows. This can be done, inter alia,  via regional arrangements, such as the EU-Turkey Statement of 2016, or the respective arrangements with Afghanistan on the return of Afghan nationals, and the Emergency Transit Mechanism (ETM) in Rwanda. The Union and its Member States may agree on limited relocation and resettlement, but their  main contribution to burden-sharing should be financial, including assistance to migrants for returning home. Such policies could find consensus among Member States and acceptance by the Union citizens, and be consistent with international law.

IV. The United Nations and the question of global and regional order

There are different normative projections about the scope and application of a variety of legal regimes (law of the sea, refugee law, human rights law, Palermo Protocols, EU law) linked to the regulation of mass influxes of migrants in the Union. Various participants in international legal relations, States, international organizations and NGOs engage in a multifaceted struggle on the semantic domination over the interpretation and application of these legal regimes. I provided some evidence of the challenges the proponents of an expansive interpretation of human rights face in their efforts to create a system facilitating the movement of persons from the MENA and Central Asian regions to the EU. These normative ambiguities are due to the difficulty of the relevant legal regimes to adapt to a completely different situation than the one envisaged by the contracting parties. A radical change in real life situations may put extreme pressure on the functionality and relative predictability of norms. This is why a different course should be traced via an additional level of analysis.

The main question is not, whether a pro persona principle should be applied in cases of normative ambiguity, or whether human rights law is at the top of normative hierarchy, but to whom the loss of life in an irregular mass migration movement is to be attributed: to the State actors that attempt to prevent the movement, or to the smugglers who encourage it. The answer to this question will determine the interpretive approach.

Systemic integration is a crucial rule of legal interpretation, whereby the relevant rules of international law are taken into account in treaty interpretation (Art. 31(3)(c) Vienna Convention on the Law of Treaties). Among them, the UN Security Council resolutions and practice play a prominent role, because they bind all Member States and prevail over any other treaty obligations (Arts. 25 and 103 UN Charter; see also Skordas, in Aust/Nolte, pp. 309-314). Since resolution 688/1991, the Security Council has created a consolidated practice, according to which  mass irregular movements of migrants and refugees constitute a threat to the peace. Furthermore, resolution 2240/2015 determined the existence of a Chapter VII situation as the result of mass and irregular migration from Africa to Europe. The Council made here an authoritative determination, by attributing responsibility for the loss of life and for the drowning of migrants in the Mediterranean as follows:

‘The Security Council, …. affirming the necessity to put an end to the recent proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean Sea off the coast of Libya, and, for these specific purposes, acting under Chapter VII of the Charter of the United Nations,’ (last paragraph of the preamble).

Therefore, the Council determined that the loss of life is attributable to the actions of the smuggling and trafficking networks and not to the deterring action of EU Member States. Therefore, smuggling and trafficking are legally the proximate causes for the drowning of migrants and deploy their nefarious effects as long as the paths of irregular mass migration remain open. According to the preamble of the same resolution, States should also (and obviously)  comply with their obligations under international law, including human rights law and international refugee law, but within the context of implementing and enforcing the resolution and putting an end to the ‘big business’ of smuggling and trafficking networks. Closing the illegal migration markets puts practically an end to the smuggling and trafficking business.

This conclusion is strengthened and confirmed by the Global Compact for Safe, Orderly, and Regular Migration of the UN General Assembly (A/RES/73/195, 11.01.2019). Already the title is vocal and specific, as it disapproves of unsafe, disorderly, and irregular migration. Moreover, Objective 9 of the Compact on the strengthening of the transnational response to the smuggling of migrants (para. 25) lists six actions, including the commitments of States to ‘take measures to prevent the smuggling of migrants along the migration cycle’ and cooperate on ‘training and technical capacity-building at the national and local levels, paying special attention to geographical areas from which irregular migration systematically originates’ (action f, my italics).

Ultimately, an authoritative resolution of inter-regime collisions can be made by the International Court of Justice (ICJ) at The Hague. As the possibility of an inter-State dispute that would offer satisfactory answers is rather low, NGOs or States concerned could lobby the UN General Assembly to request an advisory opinion, as I have already proposed (here).

V. Concluding remarks 

The Greek-Turkish border crisis opens anew the discussion of migration management, regional geopolitics, and asylum law.

Let me summarise five points :

First, the international legal system is structurally linked to the political and economic systems of world society, whilst the jurisprudence mirrors their co-evolution and resolves collisions between legal regimes. The geopolitical context is characterised by high complexity, whereby the UN Security Council plays a fundamental  role by  framing  the security dimension in a binding manner.

Second, the EU should focus in the first place on its social cohesion through assimilation  and inclusion of the existing migrant and minority populations. This is not impossible: Greece gave the example by successfully assimilating almost one million Albanian migrants (Muslims and Christians) constituting almost ten percent of its population, who arrived in the country in the 1990s. Despite the initial xenophobia and racism, diaspora Albanians are now a successful part of the Greek mainstream. Furthermore, labour immigration to the EU based on the needs of the economy should be encouraged and incentives be offered to workers and researchers with talent and skills.

Third, the necessity clauses of Arts. 72 and 347 TFEU may gain importance in the new geopolitical environment. Art. 347 TFEU is the legal ‘nuclear option’ in a geopolitical crisis, if a Member State sees no other way to justify an action it deems absolutely necessary for safeguarding other legal goods at risk. Moreover, this provision can be also invoked to justify measures necessary for the preservation of international and regional peace and security.

Fourth, it is unlikely that the two major European courts (Luxembourg and Strasbourg)  will oblige the EU Member States to adopt open door policies in the near future. Jurisprudence seems to develop, step by step, a more realist human rights law perspective by seeking a reasonable balance with the competing concepts of public good and public interest. An all too expansive interpretation of human rights law stands in serious tension with the rule of law principle.

Fifth, migration law should be conceptualised taking into account its structural couplings with other legal regimes and with the global and regional geopolitical orders. This approach is based on the idea of ‘law in context’, which is the obvious methodological approach of contemporary legal studies. After the Greek-Turkish border crisis, the relationship between irregular mass migration and geopolitics cannot be swept under the carpet any more.