Steve Peers

EU leaders convened yesterday and agreed on a policy to handle the escalating migrant death toll in the Mediterranean Sea. This new policy expands on the recently implemented 10-point plan established by ministers. Notably, some significant last-minute revisions to the initial draft highlight the leaders’ priorities.

Detailed comments

The leaders’ statement appears to demonstrate more empathy than the prior 10-point plan. It acknowledges the immense loss of life as a tragedy and prioritizes the prevention of further deaths at sea. To achieve this, they commit to tripling the budget for existing search and rescue EU operations. However, this funding increase is restricted by Frontex’s authority, and the agency’s director has stated its limited search and rescue role.

Since Frontex coordinates these operations, specific EU legal frameworks will apply. These rules permit the return of rescued migrants directly to non-EU nations under the condition that these countries are safe. It’s doubtful that Libya would currently meet this safety criteria.

The policy’s emphasis on destroying traffickers’ vessels “before they are used by traffickers” suggests an improbable ability to predict the future use of these boats. This is further qualified by a commitment to international law compliance. It’s unclear if this action falls under foreign policy, as the leaders suggest, considering a recent CJEU opinion concerning the EU’s anti-piracy operation.

In contrast to the 10-point plan, this policy mentions intercepting communications and briefly addresses the root causes of the crisis, such as conflicts in migrants’ origin countries, including Libya. While the EU leaders removed the reference to preventing migrants from reaching the Mediterranean coast, strengthening cooperation with sub-Saharan countries implies this as a primary objective.

The policy stresses readmission agreements, including those with transit countries, implicitly referencing those currently being negotiated with North African states, excluding Libya. Two new references to asylum rights and EU asylum law confirm the leaders’ intent to process claims rather than resorting to mass returns. While some press reports erroneously suggested otherwise, EU and human rights law mandate that migrants who reach EU waters or land have their claims examined. Return to origin or transit countries is permissible only if asylum claims are deemed unfounded and those countries are safe, which currently excludes Libya.

The policy shifts from fingerprinting all migrants to only those seeking asylum, aligning with established EU law. The plan provides minimal information on safe passage, omitting the previous 5,000 resettlement target and neglecting other safe passage avenues. While humanitarian visas for Libya are impractical, other states could offer this option. Similarly, limited practical support is offered to frontline states, with other member states providing financial aid, processing assistance, and return support, but minimal commitment to relocating individuals from these overwhelmed states.

The immediate commitment to release a “roadmap” next week preempts the European Commission’s agenda-setting role, though the European Parliament retains significant influence due to its required approval of funding and legislative changes.

Conclusions

The renewed commitment to search and rescue, despite being limited by Frontex’s capacity, is positive. The desire to address root causes is commendable, though it appears halfhearted and presents a considerable challenge. A more robust strategy for handling asylum claims in non-EU transit countries will likely be necessary, though neither the EU leaders nor asylum NGOs seem ready to tackle this. Destroying traffickers’ boats will likely prove ineffective due to legal and logistical constraints. The summit’s outcome offers minimal solutions for ensuring safe passage and preventing risky crossings, and it provides marginal assistance to overburdened frontline member states.

The leaders seem intent on minimal changes to the current crisis management approach. Similar to their handling of the euro crisis, this appears to be a temporary solution that delivers less than promised and will likely require revisiting shortly.

Photo credit: Kenneth Roth

Barnard & Peers: chapter 26

Annex

Special meeting of the European Council, 23 April 2015 - statement

[note: changes from the earlier draft are noted by underling for additions of text, and strike-out for removals of text] 

1. The situation in the Mediterranean is a tragedy. The European Union will mobilise all efforts at its disposal to prevent further loss of life at sea and to tackle the root causes of the human emergency that we face, in cooperation with the countries of origin and transit. Our immediate priority is to prevent more people from dying at sea.

2. We have therefore decided to strengthen our presence at sea, to fight the traffickers, to prevent illegal migration flows and to reinforce internal solidarity and responsibility. Given that instability in Libya creates an ideal environment for the criminal activities of traffickers, we will actively support all UN-led efforts towards re-establishing government authority in Libya. We will also step up efforts to address conflict and instability as key push factors of migration, including in Syria.

3. We today commit to:

Strengthening our presence at sea

a) rapidly reinforce EU Operations Triton and Poseidon by at least doubling tripling the financial resources for this purpose in 2015 and 2016 and reinforcing the number of assets, thus allowing to increase the search and rescue possibilities within the mandate of FRONTEX. We welcome the commitments already made by Member States which will allow to reach this objective in the coming weeks;

Fighting traffickers in accordance with international law

b) disrupt trafficking networks, bring the perpetrators to justice and seize their assets, through swift action by Member State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum Support Office (EASO) and EUROJUST, as well as through increased intelligence and police-cooperation with third countries;

c) undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers;

d) at the same time, the High Representative is invited to immediately begin preparations for a possible CSDP operation to this effect, in accordance with international law;

e) use EUROPOL to detect and request removal of internet content used by traffickers to attract migrants and refugees, in accordance with national constitutions;

Preventing illegal migration flows

f) increase support to Tunisia, Egypt, Sudan, Mali and Niger among others, to monitor and control the land borders and routes in order to prevent potential migrants from gaining access to Mediterranean shores, building on current CSDP operations in the region, as well as on regional cooperation frameworks (Rabat and Khartoum processes); step up dialogue with the African Union at all levels on all these issues;

g) reinforce our political cooperation with African partners at all levels in order to tackle the cause of illegal migration and combat the smuggling and trafficking of human beings. The EU will raise these issues with the African Union and the key countries concerned, with whom it will propose the holding of a summit in Malta in the coming months;

h) step up cooperation with Turkey in view of the situation in Syria and Iraq;

i) deploy European migration liaison officers in key countries to gather information on migratory flows, co-ordinate with national liaison officers, and co-operate directly with the local authorities;

j) work with regional partners in building capacity for maritime border management and search and rescue operations;

k) launch Regional Development and Protection programmes for North Africa and the Horn of Africa;

l) invite the Commission and the High Representative to mobilise all tools, including through development cooperation and the implementation of EU and national readmission agreements with third countries, to promote readmission of unauthorised economic migrants to countries of origin and transit, working closely with the International Organisation for Migration;

m) while respecting the right to seek asylum, set up a new return programme for the rapid return of illegal migrants from frontline Member States, coordinated by FRONTEX;

Reinforcing internal solidarity and responsibility

n) rapid and full transposition and effective implementation of the Common European Asylum System by all participating Member States, thereby ensuring common European standards under existing legislation;

o) increase emergency aid to frontline Member States and consider options for organising emergency relocation between all Member States on a voluntary basis;

p) deploy EASO teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing;

q) set up a first voluntary pilot project on resettlement across the EU, offering at least 5,000 places to persons qualifying for protection.

4. The EU institutions and the Member States will work immediately on the full implementation of these orientations. The Presidency and the Commission will present next week a roadmap setting out work up to June.

5. The European Council looks forward to the Commission Communication on a European Agenda for Migration, in order to develop a more systemic and geographically comprehensive approach to migration. The European Council will remain seized of the situation and will closely monitor the implementation of these orientations. The Council and the Commission will report to the European Council in June.