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Over the past decade, for the purpose of managing the phenomenon of migration by sea, a wide number of different measures have been adopted by the European Union and its Member States. Notwithstanding the persistent need and the legal obligation to save people’s lives at sea, Europe remains stocked on the protection of the security of its internal and external borders and goes ahead with the launch of Eunavfor Med—Operation Sophia, the first naval mission aimed to disrupt the business model of migrant smuggling and human trafficking in the Mediterranean. The following chapter examines the factual and legal background behind the establishment of this military mission and focuses on two sensitive and interrelated aspects: the use of enforcement powers against alleged smugglers and traffickers on the one hand and the rescue of irregular migrants at sea on the other hand. While various challenges prevent the activation of the crucial military phase of Operation Sophia, the operational and legal framework applicable to incidental search and rescue interventions carried out by its naval forces appears rather unclear and problematic under different perspectives of international law, especially if the Operation will continue into Libyan territorial waters in cooperation with its unstable authorities.
See Eunavfor Med Op Sophia (2016)—Six Monthly Report 22 June–31 December 2015. Available via WikiLeaks https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf. Accessed 31 May 2016.
The Operation was initially titled ‘EUNAVFOR MED’ and was subsequently renamed ‘EUNAVFOR MED operation SOPHIA’ after a baby girl who was given birth to by a woman of Somali origin on a European vessel in the summer months of 2015 after being rescued. See Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean, Official Journal (2015) L 122/31 and Council Decision (cfsp) 2015/1926 of 26 October 2015 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean Official Journal (2015) L 281/13.
See the Six Monthly Report, pp. 3 and 18.
On the need to have forces close to the Libyan shore, see Lehmann ( 2015).
According to the United Nations High Commissioner for Refugees (UNHCR), in 2015 over 80 percent of the irregular migrants came from the world’s top 10 refugee-producing countries, including Syria, Afghanistan, Eritrea, and Iraq. Available via UNHCR http://data.unhcr.org/mediterranean/regional.php. Accessed 31 May 2016. On the different definitions of ‘irregular immigrants’, see Trevisanut ( 2012), pp. 1–22.
The Six Monthly Report, p. 6.
Pursuant to Art. 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, the Smuggling of migrants is: ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’. See the Protocol against the Smuggling of Migrants, supplementing the United Nations Convention against Transnational Organized Crime, New York, 15 November 2000, in United Nations Treaty Series, Vol. 2241, Doc. A/55/383, p. 507.
Pursuant to Art. 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, the Trafficking in persons is: ‘the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’. See the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational organized Crime, New York, 15 November 2000, in United Nations Treaty Series, Vol. 2237, Doc. A/55/383, p. 319.
By way of example, in October 2013 an overcrowded boat carrying asylum seekers from Eritrea, Somalia and Ghana capsized within sight of Italy’s shores. Despite the vessel’s stated capacity of 35 passengers, it carried around 500 souls on board that night. For 360 of them, dreams of a better life away from poverty and war died in the depths of the Mediterranean, see BBC: http://www.bbc.com/news/world-europe-24440908. Accessed 31 May 2016.
The mandate of Operation Sophia refers to ‘human smuggling or trafficking’, whereas the established terminology in international law for these two criminal phenomena is ‘smuggling of migrants’ and ‘trafficking of persons’. See Art. 3 of the Protocol against the Smuggling of Migrants and Art. 3 of the Protocol against the Trafficking in Persons, cit.
On recent salvage operations carried out by military forces, see EEAS: http://www.eeas.europa.eu/csdp/missions-and-operations/eunavfor-med/news/index_en.htm. Accessed 31 May 2016.
Frontex was established by Council Regulation (EC) 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (EU). This Regulation was later amended by the Regulation (EC) No 863/2007 of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers. It was then amended by the Regulation (EU) No 1168/2011 of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU.
See Regulation (EU) No. 656/2014 of the European Parliament and of the council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, in Official Journal of the European Union L 189/93.
For further considerations on the negotiations and institutional conflicts within the EU, see den Heijer ( 2016), pp. 53–71.
See Council (2010), Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex at the external borders of the Member States of the EU, OJ L 111/20, 04.05.2010.
The Schengen Borders Code applies to any person crossing the external borders of all EU countries, except those of the United Kingdom and Ireland, and the internal borders of the Schengen Area, a border-free area comprising 22 EU countries, along with Iceland, Liechtenstein, Norway and Switzerland.
See Carrera and den Hertog ( 2016), pp. 1–20.
For practicalities on Frontex support to SAR activities, see http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/frontex_triton_factsheet_en.pdf.
On the expiration of Frontex Joint Operation Triton, see Frontex: http://frontex.europa.eu/news/frontex-expands-its-joint-operation-triton-udpbHP. Accessed 31 May 2016.
See International Organization for Migration (IOM), Migration Trends Across the Mediterranean: Connecting the Dots, June 2015, p. 1. Available via IOM file:///C:/Users/win/Downloads/Altai_Migration_trends_accross_the_Mediterranean.pdf. Accessed 31 May 2016.
See Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military Operation in the Southern Central Mediterranean, cit.
For details on the legal framework governing the adoption of Operation Sophia, see Butler and Ratcovich ( 2016), pp. 235–259.
See Council Decision (CFSP) 2015/972 of 22 June 2015 launching the European Union military operation in the southern Central Mediterranean, Official Journal (2015) L 157/51.
See Art. 2.2(a) of the Council Decision.
See Art. 2.2(b)(i) of the Council Decision.
See Art. 2.2(b)(ii) of the Council Decision.
See Art. 2.2(c) of the Council Decision.
The Member States participating to the mission as contributing states are: Belgium, Bulgaria, Cyprus, Czech Republic, Spain, Estonia, Finland, France, Germany, Great Britain, Greece, Hungary, Italy, Latvia, Lithuania, Luxemburg, Malta, the Netherlands, Poland, Rumania, Slovenia Sweden.
Distant from European shores, the first EU naval mission ‘EUNAVFOR’ was launched in the Gulf of Aden off the Eastern coast of Africa in 2008 in order to combat piracy and armed robbery at sea. See the EU Council, Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, 10 Nov. 2008, Official Journal (2008) L301/33. For doctrine, see Geiss and Petrig ( 2011), p. 18.
On 28 September 2015, the Political and Security Committee adopted Decision (CFSP) 2015/1772 concerning the transition by EUNAVFOR MED operation SOPHIA to the second phase of the operation, as provided for in point (b)(i) of Article 2(2) of Decision (CFSP) 2015/778 which also approved adapted Rules of Engagement for that phase of the operation, OJ L 258, 3.10.2015.
The United Nations Convention on the Law of the Sea (UNCLOS) was signed on 10 December 1982, in Montego Bay, entered into force on 16 November 1994 and was ratified by 165 States as of 19 July 2013, in United Nations Treaty Series, Vol. 1833, p. 3.
For references on the Protocol against the Smuggling of Migrants, cit.
See Ringbom ( 2015), pp. 1–454.
On the provisions of international law of the sea applicable to immigration in the different marine jurisdictional zones, see Scovazzi ( 2014), p. 216.
See Art. 87 of the UNCLOS ( Freedom of the high seas).
See Art. 92 of the UNCLOS ( Status of ships).
See Art. 89 of the UNCLOS ( Invalidity of claims of sovereignty over the high seas).
See Art. 110 of the UNCLOS ( Right of visit).
See Art. 110(a) UNCLOS.
See Art. 110(b) UNCLOS.
See Art. 110(d) UNCLOS.
See Papanicolopulu ( 2016), pp. 2–22.
See Scovazzi ( 2014), cit.
The Protocol against the Smuggling of Migrants, cit.
See Papanicolopulu ( 2016) cit.
For a thorough analysis on the criteria for a lawful exercise of the use of force at sea in accordance with human rights law, see International Tribunal for the Law of the Sea, The M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999D. For doctrine, see Guilfoyle ( 2009), p. 268.
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, cit.
Even if the analysis in the text is restricted to the international legal framework, it seems worth noting that with respect to enforcement jurisdiction on the high seas some issues may be raised by the domestic legal systems which may restrict the jurisdiction against migrant smugglers to the territorial sea. For doctrine, see Andreone ( 2011), pp. 183–188. With respect to the Italian system, more recently, the Supreme Court has affirmed that against ships without nationality encountered on the high seas, coercive powers can be exercised on the basis of a valid reason, such as art. 8 of the Protocol against Smuggling of Migrants. See Corte di Cassazione, judgment of 23 May 2014, No. 36052.
See Articles 39 and 42 of the UN Charter. For doctrine on the powers of the UN Security Council, see Conforti, Focarelli ( 2015).
On the unilateral use of force, see Picone ( 2015), pp. 3–32.
See the Council Decision, Rec. 4.
See, for instance, the speech of the UN Secretary-General, Ban Ki-Moon, at the European Parliament in plenary session on 27 May 2015. Available via European Parliament News http://www.europarl.europa.eu/news/en/news-room/20150526STO59634/Ban-Ki-moon-on-migration-%E2%80%9CSaving-lives-should-be-the-top-priority%E2%80%9D. Accessed 31 May 2016.
The abstention was of Venezuela.
See Resolution 2240 (2015), adopted by the Security Council at its 7531st meeting, on 9 October 2015, Doc. S/RES/2240 (2015), para. 1.
On the perspective of the EU, see Political and Security Committee Decision (CFSP) 2016/118 of 20 January 2016, concerning the implementation by Eunavfor Med Operation Sophia of United Nations Security Council Resolution 2240 (2015) (Eunavfor Med Operation SOPHIA/1/2016, Rec. 3; A similar approach on the Resolution 2240 (2015) is used by the Operation Commander in the Six Monthly Report, p. 10, cit.
On the express request of Russia, see the Security Council meeting records adopted at the 7531st meeting on 9 October 2015, Doc. S/PV.7531 and the Press Release of the Security Council Resolution 2240 (2015), including Statements after action. Available via United Nations Meetings Coverage and Press Releases: http://www.un.org/press/en/2015/sc12072.doc.htm. Accessed 31 May 2016.
See Resolution 2240 (2015), cit., para. 7.
See the Protocol against the Smuggling of Migrants, cit.
On the question of jurisdiction over suspected vessels, see Papastavridis ( 2016b).
See Vote on a Resolution on Human Trafficking and Migrant Smuggling in the Mediterranean. In What’s in Blue. Insights on the Work of the UN Security Council, 8 October 2015. Available via What’s in Blue http://www.whatsinblue.org/2015/10/vote-on-a-resolution-on-human-trafficking-and-migrant-smuggling-in-the-mediterranean.php. Accessed 31 May 2016.
See Art. 2 of the Council Decision.
See Articles 2–4 of the UNCLOS.
See Resolution 2259 (2015), adopted by the Security Council at its 7598th meeting, on 23 December 2015, Doc. S/RES/2259 (2015), para. 3.
For a reconstruction of the Somali crisis, for doctrine see Gordon ( 1997), pp. 903–974; Kreijen ( 2004), p. 65 ff.; for case-law see European Court of Human Rights, Sufi and Elmi vs. United Kingdon, Apps. No. 8319/07 and 11449/07, concerning the appeal by two Somali citizens at risk of inhumane treatment if returned to Mogadishu.
According to paragraph 9 of Resolution 1816 (2008) ‘the authorization set out in paragraph 7’ has been provided only following receipt of the letter from the Permanent Representative of the Somalia Republic to the United Nations to the President of the Security Council dated 27 February 2008 conveying the consent of the TFG’. Similar formulations, referring to further letters conveying the consent of the TFG, are in Security Council Resolutions 1846 (2008) and 1851 (2008).
See the Six Monthly Report, section on Legal mandate—UNSCR and Libyan Invitation, p. 19.
Ibid, Section on Tactics, Techniques and Procedures (TTP) Evolution, p. 7. For a description of the conducts of smugglers and traffickers, see also Cataldi ( 2015), pp. 1498–1502; in particular, the author examines the decision of the Italian Supreme Court, Criminal proceedings against Radouan Hai Hammouda, No. 3345, 23 January 2015.
Ibid, Section on Phase II.A (High Seas) Activities, p. 11.
On more recent news, see EU External Action: http://www.eeas.europa.eu/csdp/missions-and-operations/eunavfor-med/news/index_en.htm (5/16).
See Council Decision, cit.
The International Convention for the Safety of Life at Sea, adopted 1 November 1974, in force 25 May 1980; 1184 UNTS No. 1861.
The International Convention on Maritime Search and Rescue, adopted 27 April 1979, in force 22 June 1985; 1405 UNTS No. 23489.
See Resolution 2240 (2015), cit. preamble.
IbId, para. 3.
See Art. 98 UNCLOS.
IMO-Maritime Safety Committee ‘Guidelines on the treatment of persons rescued at sea’ (MSC Guidelines) art 6.12 Resolution MSC.167(78) (20 May 2004) www.unhcr.org/refworld/docid/432acb464.html.
Ibid Art. 2.5.
On the obligation to render assistance at sea and on the responsibility for failing to save lives, see Papastavridis ( 2016a), pp. 31–47.
For an analysis of the disputes of Mediterranean States with regard to SAR operations, see Trevisanut ( 2010) cit.
See Tondini ( 2012), p. 62, cit.
The Six Monthly Report, p. 14.
The Six Monthly Report, p. 15.
On more recent news, see EU External Action http://www.eeas.europa.eu/csdp/missions-and-operations/eunavfor-med/news/index_en.htm. Accessed 31 May 2016.
See Regulation 656/2014, Art. 10.
See Regulation 656/2014, Rec. 14.
On the broad interpretation of the principle of non-refoulement, see the European Court of Human Rights, Hirsi Jamaa and others v. Italy, cit. For a comment, see Liguori ( 2012), p. 415. For doctrine on the implementation of the principle of non refoulement at sea, see Trevisanut ( 2008), pp. 205–246.
Ibid, Regulation 656/2014, Rec. 13.
See Frontex’ Annual Report on the implementation on the EU Regulation 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders. P. 7.
See the Report, section Capacity and Capability Building, p. 20.
The agreements themselves are confidential. See for an extensive analysis Garcia Andrade ( 2010), pp. 311–346.
This principle of non-refoulement appears in several central instruments of international law. See, among others, Art. 33(1) of the Convention Relating to the Status of Refugees (opened for signature 28 July 1951, entered into force 22 April 1954) and Art. 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 4 February 1985, entered into force 26 June 1987) 1465 UNTS 85 (CAT).
See Frontex Annual Report, p. 7.
On the use of force against terrorism and other violent activities of non-state actors in acquiescent States, see Tancredi ( 2007), p. 969 ff.
On these grounds, the Security Council has affirmed that ‘the situation in Libya constitutes a threat to international peace and security’. See Security Council Resolutions 2213 (2015) and 2238 (2015), cit.
See COM(2006), 733 final, par. 34. For doctrine, see M. den Heijer, “How the Frontex Sea Borders Regulation avoids the hot potatoes”, cit.
See Reg. 2007/2004, Art. 1(2).
See Resolution 2240 (2015).
See the Council Decision (CFSP) 2016/993 of 20 June 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean, OJ L 162/18 of 21 June 2016.
On 14 June 2016, the UN Security Council adopted the Resolution 2292 (2016) on the arms embargo on Libya, expressing in particular concern that the situation in Libya is exacerbated by the smuggling of illegal arms and related materiel. Pursuant to this Resolution, Member States are authorized ‘to inspect […] on the high seas off the coast of Libya, vessels bound to or from Libya which they have reasonable grounds to believe are carrying arms or related materiel to or from Libya […]’. With previous resolutions, the Security Council has imposed, modified and reaffirmed the arms embargo in Libya. See resolutions 1970 (2011), 1973 (2011), 2009 (2011), 2040 (2012), 2095 (2013), 2144 (2014), 2174 (2014), 2213 (2015), 2214 (2015) and 2278 (2016).
Coppens and Somers ( 2010), pp. 377–403.
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- Exploring the Ambiguity of Operation Sophia Between Military and Search and Rescue Activities