twelve times higher than its predecessor and more power (Andersson 2016, p. 1059).
Frontex was heavily criticized for not putting sufficient emphasis on human rights;
the new regulation, thereby, apparently tackles this important shortcoming. In
practice, the EU has developed an extremely controversial and worrisome concept
of ‘safe country’ in the terms of the Refugee Convention by granting such status to
Turkey and Libya. Neither of these countries is a signatory to the said convention nor
have they given reliable proof of being capable of dealing with asylum-seekers
(Gogou 2017; Matziaraki 2016). And yet, the Council of the European Union has
endorsed in its Malta Declaration a specific agreement between Italy and Libya
despite the political instability of the latter. Actually, Italy had already signed a
Treaty of Friendship, Partnership and Cooperation with Libya in 2008, suspended in
2011, but now revamped with a significant increase in technical and financial
support to establish immigration detention facilities, and, in particular, to facilitate
interception of migrant boats by the Libyan Navy and Coast Guards. Moreover,
similar agreements with African countries have been reached with the EU’s approval
in a move that integrates search and rescue operations within the machinery to
prevent people arriving at the EU border.
Flag States are also obliged by the law of the sea and thus, if coastal States do not
allow disembarkation, it is within the responsibility of the flag State to secure it (Rah
2009). However, flag States seem to align with the view that mixes up maritime
interception and rescue operations. In this vein, it is remarkable that Gibraltar first
and Panama later on decided to de-register the M/V Aquarius Dignitus, a vessel
operated by Medecins san Frontiers (MSF) and used in search and rescue operations
in the Mediterranean Sea, after the crew refused to deliver the rescued migrants to the
Libyan Coast Guard as requested by the Italian RCC. The Panamanian maritime
authority claimed that the registered purpose of the Aquarius was not in line with
search and rescue operations (HRAS 2019). Along the same lines, the Spanish and
Italian port authorities are refusing ships operated by NGOs to leave port because
they end up undertaking rescue operations and transporting passengers until a port
willing to disembark them (Rodríguez Martínez and Valero 2019). According to
these authorities, this is not in compliance with salvage rules, thereby these ships are
not allowed to sail until coastal States open again their ports for disembarkation. In
other words, national migration policies and maritime interception are prioritised
over human rights protection and rescue operations.
However, international human rights conventions do apply at high seas. In fact,
while the refugee status is only granted in accordance with specific grounds that are
not applicable to all migrants, other human rights’ instruments might be applicable.
The ECtHR condemned Italy for infringing the prohibition of torture and inhuman
and degrading treatment, the prohibition of collective expulsion of aliens, and the
right to be afforded an effective remedy under national law as rights enshrined in the
Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European
Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision
2005/267/EC, OJ [2016] L 251/1.
84
L. Carballo Piñeiro
Frontex was heavily criticized for not putting sufficient emphasis on human rights;
the new regulation, thereby, apparently tackles this important shortcoming. In
practice, the EU has developed an extremely controversial and worrisome concept
of ‘safe country’ in the terms of the Refugee Convention by granting such status to
Turkey and Libya. Neither of these countries is a signatory to the said convention nor
have they given reliable proof of being capable of dealing with asylum-seekers
(Gogou 2017; Matziaraki 2016). And yet, the Council of the European Union has
endorsed in its Malta Declaration a specific agreement between Italy and Libya
despite the political instability of the latter. Actually, Italy had already signed a
Treaty of Friendship, Partnership and Cooperation with Libya in 2008, suspended in
2011, but now revamped with a significant increase in technical and financial
support to establish immigration detention facilities, and, in particular, to facilitate
interception of migrant boats by the Libyan Navy and Coast Guards. Moreover,
similar agreements with African countries have been reached with the EU’s approval
in a move that integrates search and rescue operations within the machinery to
prevent people arriving at the EU border.
Flag States are also obliged by the law of the sea and thus, if coastal States do not
allow disembarkation, it is within the responsibility of the flag State to secure it (Rah
2009). However, flag States seem to align with the view that mixes up maritime
interception and rescue operations. In this vein, it is remarkable that Gibraltar first
and Panama later on decided to de-register the M/V Aquarius Dignitus, a vessel
operated by Medecins san Frontiers (MSF) and used in search and rescue operations
in the Mediterranean Sea, after the crew refused to deliver the rescued migrants to the
Libyan Coast Guard as requested by the Italian RCC. The Panamanian maritime
authority claimed that the registered purpose of the Aquarius was not in line with
search and rescue operations (HRAS 2019). Along the same lines, the Spanish and
Italian port authorities are refusing ships operated by NGOs to leave port because
they end up undertaking rescue operations and transporting passengers until a port
willing to disembark them (Rodríguez Martínez and Valero 2019). According to
these authorities, this is not in compliance with salvage rules, thereby these ships are
not allowed to sail until coastal States open again their ports for disembarkation. In
other words, national migration policies and maritime interception are prioritised
over human rights protection and rescue operations.
However, international human rights conventions do apply at high seas. In fact,
while the refugee status is only granted in accordance with specific grounds that are
not applicable to all migrants, other human rights’ instruments might be applicable.
The ECtHR condemned Italy for infringing the prohibition of torture and inhuman
and degrading treatment, the prohibition of collective expulsion of aliens, and the
right to be afforded an effective remedy under national law as rights enshrined in the
Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European
Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision
2005/267/EC, OJ [2016] L 251/1.
84
L. Carballo Piñeiro