On 29 March, 2018, a group of leading international law academics called for Italy to cease its policy of promoting, directing and enforcing returns to Libya with immediate effect after Italian authorities recently seized the Spanish NGO rescue boat ‘Open Arms’. The academics also called on Italy to cease prosecuting actors who deliver people rescued at sea to a place of safety. They argue that Italy is acting in violation of international law.
On March 18, 2018, the ‘Open Arms’ refused to hand over to the Libyan coast guard 218 people it had rescued in international waters. The Italian authorities initiated criminal investigations against the NGO coordinator and the captain of the boat. And Italy claims that they were obliged to do so, on the basis of the Italian NGO Code of Conduct. Instead, the ‘Open Arms’ brought two rescued persons to Malta (where a mother and child were hospitalized in critical condition), and the remaining to Italy. The NGO people face prosecution on account of taking part in human smuggling (Le Monde, 22 March 2018).
Under international law, shipmasters are under the obligation to assist people in distress at sea, and to bring them to a place of safety. The captain of the ‘Open Arms’ has complied with this requirement by rescuing the 218 people and subsequently refusing to hand them over to the Libyan coast guard. On the basis of well documented human rights reports, the captain knew that handing them to the Libyan coast guard would imply the real risk that the 218 people would be subjected to torture, inhuman or degrading treatment, slavery, or forced or compulsory labour, which constitute grave human rights violations or even crimes against humanity. Libya is not a place of safety as required under international law.
The full text of the statement is avaialble here.
Eric Fischl: A Visit To / A Visit From / The Island (1983), Whitney Museum of American Art, New York
States are obliged to protect the right to life by law. This paper analyses the way in which states do this in the field of aviation law, maritime law, and the law on migrant smuggling. A comparative description of these fields of law shows that states differentiate in protecting the right to life. Regular travelers benefit from extensive positive obligations to safeguard their right to life, whereas the lives of irregularized travelers are protected first and foremost by combating irregularized migration and, if the worst comes to pass, by search and rescue. The right of states to exclude aliens from the their territories leads to exclusion of irregularized travelers from their main positive obligations under the right to life. This situation is analyzed through Zygmunt Bauman’s notion of ‘wasted lives’. The contrast with aviation and maritime law makes clear that this situation is the outcome of human choice, which can be changed.
Wasted Lives. Borders and the Right to Life of People Crossing Them, Nordic Journal of International Law 2017(1), p. 1-29
Irregular migrants and asylum seekers have died and continue to die attempting to cross the external borders of the EU without authorisation, seeking to enter the territories of its Member States. Yet, remarkably little is known about these ‘border deaths’. In 2015, the Human Costs of Border Control project published the Deaths at the Borders Database for the Southern EU, an opensource ‘evidence base’ of individualised information about people who have died border deaths between 1990 and 2013, sourced from the death management systems of Spain, Gibraltar, Italy, Malta and Greece. It is the first database on border deaths in the EU to be based on official sources as opposed to the news media. The project involved searching 563 state-run death registry archives and deductively selecting the death certificates of persons who died border deaths. This paper describes, in detail, the making of the Deaths at the Border Database: from the systematic, multi-sited, quantitative data collection and qualitative case studies, to the construction and final results of the Database itself.
Death at the borders database, Journal of Ethnic and Migration Studies 43 (2017), p. 693-712
From: Constant: 8 x la guerre (1951)
On March 18th, 2016, the EU and Turkey agreed that all irregular migrants arriving on the Greek islands were to be returned to Turkey. It is generally believed that this agreement has led to a dramatic decrease of the number of irregular migrants, and hence of the number of border deaths. Exemplifying this idea is this quote from the second progress report of the European Commission on the implementation of the EU-Turkey Agreement: ‘The sharp decrease in the number of irregular migrants and asylum seekers crossing from Turkey to Greece is proof of the Statement’s effectiveness – and in particular, that the business model of smugglers can be broken. The clear message to migrants is that getting on a boat in Turkey, and endangering lives in the process, is not worth the risk given that there is a legal and safe pathway through resettlement.’ Are these claims correct?
See my blogpost on Border Criminologies
Book review of Nicola Perugini and Neve Gordon: The Human Right to Dominate (Oxford University Press, 2015), in Human Rights Law Review 19(2016), p. 395-401
This paper contains a brief introduction to the Deaths at the Border Database, including methodology, prelimiary outcomes and preliminary policy conclusions.
Deaths at the Borders: Evidence from the Southern External Borders of the EU, published in
HIJRA – La Revue Marocaine de Droit d’Asile et Migration 2016, no. 1
– English version: p. 5-23
– Arabic version: p. 24-36
At the Vrije Universiteit, we are carrying out a research project about changes in European border policies and migrant deaths since 1990. This document is the research proposal that was funded by NWO (the Dutch Organisation for Scientific Research).
Border Policies and Sovereignty. Human rights and the right to life of irregular migrants
In this article we investigate the various estimates of migrant deaths in the Mediterranean that have been produced – where the estimates come from, how they are used, what they add to debates, proposed solutions, policy and policy development, awareness of the issue and human rights advocacy, among others. It shows that existing estimates are insufficient for documenting how many people have died trying to cross the southern EU external borders. We also review the possibilities for improved data on border-related deaths.
Tracking Deaths in the Mediterranean, in Tara Brian and Frank Laczko (eds): Fatal Journeys. Tracking Lives Lost During Migration, International Organization for Migration, Geneva, 2014, p. 85-106 (with Tamara Last)
In this Article, we examine the way in which states treat-and should treat-asylum seekers seeking to enter the country undocumented. This question is relevant to many countries having to deal, on the one hand, with their international law commitments, including their obligations under the 1951 Convention Relating to the Status of Refugees, and wishing to maintain sovereignty over their borders, on the other hand. After general considerations, we focus on the case of Israel.
On The Morality and Legality of Borders: Border Policies and Asylum Seekers, Harvard Human Rights Journal, 2013(26), p. 1-38 (with Tally Kritzman-Amir)
This article begins to undertake a human rights analysis of the increasing number of migrants who die annually while trying to cross the borders of Europe in an irregular manner. Over the past 20 years, border policies increasingly focus on (pro-active, extraterritorial, privatized, and securitized) border management instead of on classical (reactive, territorial, and public) border control. On the basis of existing data, it seems plausible to assume that the increasing migrant mortality is an unintended side-effect of this shift from control to management. The article argues that it is possible to collect data, which are more reliable than those presently available, and presents data from a pilot project carried out on Sicily in November 2011. Presuming better data can be collected; two diverging human rights approaches are developed – a conventional approach holding that European states are not accountable under human rights law for these side-effects and a functional approach holding that human rights law does impose obligations on European states in this context. On all four doctrinal issues which are relevant to the problem (jurisdiction, positive obligations, standing, and collective state responsibility), these diverging approaches lead to diverging doctrinal positions. A choice between the two approaches implies not only legal but also moral, ethical, and political choices.
Moving Migrants, States and Rights. Human Rights and Border Deaths, Law and Ethics of Human Rights, 2013 (7-2), p. 213-242