The EU’s response to the increased flow of refugees crossing the Mediterranean has been to boost border security by means of Operation Triton, which is the responsibility of Frontex, the EU border agency. There is little one can do, however, to impose effective border controls at sea. Operation Triton does not have a search-and-rescue mandate, even though it is for search-and-rescue that surveillance has the greatest potential to play a positive role. In the fear that search-and-rescue capacity would make it slightly easier for boat refugees to reach Europe, border surveillance operations are being promoted as a more “effective” response.
Photo: UNHCR
The debates of recent weeks have made it clear that there is a need to address not only the situations in the countries that people are fleeing from, but also Europe’s immigration and asylum policies in general. The border surveillance operations and border controls conducted at sea are the means by which Europe’s border guards implement these policies and laws, and accordingly their limitations should also be debated. In many ways, it is at Europe’s external borders that the true heart of the conflict lies, since these are the borders that migrants wish to cross at any price, and that the border guards are tasked with “protecting”.
Legally illegal
In an op-ed in Ny Tid on 13 May, Odin Lysaker considered how the refugee situation in the Mediterranean would look from outer space: how viewing the situation from a distance, and as a whole, would highlight the absurdity of a scenario where some humans apparently have more rights (and therefore possibilities) than others. Even the distinction between those who have the right to travel freely in and out of Europe, and those who do not, is based on a paradox. In brief, as has often been pointed out in recent weeks, the situation boils down to the fact that people who are fleeing, and who are in need of protection, are left to take illegal routes into Europe. Migrants who attempt to make their way into Europe are branded as “illegal immigrants”, because they lack papers or a visa that would give them a right of entry. But there is nothing illegal about the act of embarking on a boat in North Africa. Everyone has the right to leave their own country; that is a universal human right. All countries, however, can decide for themselves who is allowed to enter through their borders. And a person must be physically present in the country where he or she wants to apply for asylum. According to the UN Refugee Convention however, “illegal arrival” in a country may not affect an asylum application, and for most people fleeing their native countries there is now no means of arriving in Europe other than the “illegal” way. This is the situation that has fostered the “market” for so-called people smugglers.
At Europe’s external borders in the Mediterranean, European principles and rules encounter a range of other central rules of international law, including the duties imposed by the law of the sea, under which any ship must conduct search-and-rescue operations if it encounters people in distress at sea. In addition, every European country is under the obligation to not return people to a place where they fear for their own safety for reasons of race, religion, nationality, membership of a particular social group or political opinion, if they may have a right to international protection – the so-called principle of non-refoulement. This principle, combined with the search-and-rescue obligation, and the fact that stopping or abandoning a boat carrying migrants in practice means endangering their lives, puts border crossings at sea in a unique situation.
The desire for more patrols
Two narratives about the situation in the Mediterranean have dominated the news media recently. The first is that this year there are fewer refugees and a greater proportion of economic migrants attempting to cross the Mediterranean. The second is that cynical people smugglers, who exploit other people’s desperation to earn huge amounts of money, are behind the situation. With the inference: if it were not for the smugglers, we would not have seen this sharp increase in the number of boat migrants over the past two years.
There is an urgent need for increased understanding and knowledge of both these aspects, not least because they help fuel a number of myths and misunderstandings about the current situation. Here, however, I want to look more closely at how both of these narratives contribute to maintaining the idea that it is possible to conduct effective surveillance and control of Europe’s external maritime border, and that in light of the current situation, more surveillance is needed.
Let us start with the “fortune hunter” argument. Those who are concerned about an increase in the share of economic migrants, are also concerned about finding ways of stopping them before they reach the European border, and of preventing them from travelling further. As mentioned above, the UN Refugee Convention prevents potential refugees from being returned to a place where their personal safety is in danger. This also applies when European border controls are conducted outside European borders. For example, if a person is taken aboard an Italian ship, he or she will come under Italian jurisdiction. The problem is that it is impossible to know whether a boat is carrying economic migrants or refugees. In all likelihood, every boat making the crossing is carrying people with very diverse backgrounds and motivations. An assessment of whether people are economic migrants or refugees cannot be conducted at sea: it must be conducted by the proper authorities onshore.
At sea is where border surveillance falls short in numerous ways, because even though surveillance systems may indicate that a boat carrying migrants is transiting the Mediterranean, the boat cannot simply be stopped and forced to return, since this would risk breaching the principle of non-refoulement. The same applies when people are saved from a boat in distress.
As has often been pointed out by my colleague Jørgen Carling, the argument that people smugglers are “behind” the situation is convenient for European politicians looking for a scapegoat. It is also a key argument in favour of moves to increase border surveillance in order to “capture” the people smugglers. One of the much-debated points in the EU’s ten-point plan is the goal to “identify, capture and destroy” the smugglers’ boats. Much of the focus has been on what means the EU and Frontex will be able to use in order to achieve this goal. Yet the attention on people smugglers will no doubt also be an important argument for justifying an increase in border surveillance capacity in the Mediterranean.
The fear of saving lives
Border surveillance operations have the potential to contribute effectively to search-and-rescue operations, for example by more rapidly detecting signals from, and locating, vessels in distress. The focus of Frontex’s Operation Triton, however, is on border security, not emergency assistance. Spokespersons for Frontex have clarified that if they should come across a vessel in distress, they will “of course” fulfil their duty to carry out search-and-rescue operations. Nonetheless, in view of how little Frontex can actually do to stop people or determine their status at sea, and also in view of the scope of the current need for rescue operations, this limited focus on border security is questionable. At the same time, these border-security measures allow the gathering of information about the situation and the people who are fleeing, which in itself is a form of border control.
An underlying explanation lies no doubt in last year’s debate on the situation, which had scarcely begun before Italy’s Operation Mare Nostrum, which focused on search and rescue, was shut down. A British minister criticized the whole operation, saying that the increased search-and-rescue capacity was directly contributing to increasing the flow of refugees – by making it easier to make a successful crossing at sea. This criticism was an exception, and was seen as diverging from the general European attitude towards Italy’s commitment to search-and-rescue. Yet, the hesitation now to increase search-and-rescue capacities for people who are fighting for their lives shows the extent to which the fear of more refugees arriving has taken root.
Instead of attempting to move the European border further out by strengthening border surveillance, the focus should be on improving the infrastructure for receiving and processing asylum applications, or other claims for legal stay, and thereby ensuring that people with a genuine need for protection are identified.
- This text was published in Norwegian in the weekly Ny Tid, 20 May 2015: “Et nærblikk på grenseovervåkningen i Middelhavet“
- Translation from Norwegian: Fidotext