The number of people drowning in the Mediterranean Sea is horrifying: according to the IOM’s Missing Migrants Project, 843 deaths of migrants were so far recorded in 2019.
Merkel said recently that it is a matter of morality to support rescue ships operating in the Mediterranean Sea in the frame of a dialogue with the civil society in North Germany. This is an outstanding message regarding the current political stance on rescue missions which are condemned as illegal trafficking in human beings. Rescue ships are being seized by state authorities and crew members are brought before courts in EU Member States such as Italy in the case of the Iuventa Rescue Ship.
However, we should not forget our legal responsibility to protect the rights of migrants and refugees. Morality goes beyond law. In some people’s eyes, moral action can have the notion of being outstanding and exemplary so that everyday action does not seem to be necessary. So here a reminder of our legal obligation and an appeal to state actors to facilitate and engage in rescue missions:
The rights of refugees are protected by various international instruments:
The 1951 Convention relating to the status of refugees and the 1967 Protocol define a refugee as a person who cannot return to his or her country of origin due to the fear of being persecuted. The reasons of persecution listed in Article 1A(2) of the Convention are race, religion, nationality, membership of a particular social group or political opinion. The well-founded fear of persecution needs a substantial base.
Further international and regional instruments are protecting the rights of refugees, in the following the ones relevant for Europe are listed:
• Universal Declaration of Human Rights
• European Convention on Human Rights
• Council Regulation EC No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national
• Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Art. 3)
• Convention on the Rights of the Child (Art. 22)
Moreover, the 1961 Convention on the Reduction on Statelessness and the 1954 Convention relating to the Status of Stateless Persons grant stateless persons citizenship.
That’s actually a lot, right?! And why do the EU Member States still don’t align their actions with the international and regional law frameworks?
Let’s have a closer look to Europe.
Article 78 of the Treaty on the Functioning of the EU (TFEU) states the EU´s competence to “develop a common policy in asylum”. Thus, the European Parliament and the Council in accordance with Article 78 par. 2 established the Common European Asylum System (CEAS) consisting of four frameworks :
- Directive 2011/95/EU, defining the scope for international and subsidiary protection
- The Refugee Procedures Directive 2013/32/EU
- The Reception Condition Directive 2013/33/EU
- The Dublin Regulation (EU) 604/2013
The definition of the term “refugee” can be found in Article 2(a) of the 2011/95/EU Directive and corresponds with the 1951 Convention. The regional protection exceeds the scope of the 1951 Convention in regard to subsidiary protection. A person is eligible for subsidiary protection in line with Article2(f) of Directive 2011/95/EU when he or she does not fall under the refugee protection regime but substantial grounds exist that the person concerned will suffer serious harm when returned, Article 15.
From a legal perspective, the Dublin Regulation is highly insufficient as a legal instrument. Why? The Dublin III Regulation (Directive 2013/32/EU) requires asylum seekers to file their applications in the country of arrival and thus determines the country of entry as responsible for asylum seekers. As a consequence, it leads to an unproportioned distribution of migrants in the Member States at the external borders of the EU. The states at the outskirts of Europe are overburdened with the large number of arrivals and thus seek to close the borders and apply restrictive measures to prevent asylum seekers to enter. The UNHCR criticizes the EU´s relocation system as being too selective. A lack of emphasis is given on vulnerability.
It can be criticised that there is no consistent European asylum law. The EU Commission introduced reform proposals which emphasize the “protection elsewhere” strategy.
Also, there is a lack of a complaint mechanism for individuals.
The EU law does not give individuals the possibility to complain against the EU before the European Court of Human Rights (ECtHR). This would be the case if the EU acceded the European Convention on Human Rights which is a legal obligation enshrined under the Article 6 of the Treaty of Lisbon. Such an accession would hold the EU accountable for its actions and introduce a coherent system of human rights protection in Europe. The ECHR is part of EU law belonging to the “general principles” of law which the ECJ applies in its rulings. Currently, only states deal with individual asylum applications despite efforts to creating a common application system. Courts on the regional and international can adjudicate human rights violations of refugees which is a time-consuming and more reactive than proactive procedure.
Through EU law, the EU Member States shield themselves from the responsibility to protect refugees and migrants.