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The IBA’s response to the situation in Ukraine
The European Council’s strategic agenda for 2019 to 2024 – and particularly its proposed approach to the migration crisis – has drawn robust criticism. The Agenda discusses the effective control of external borders, declaring that the EU ‘must ensure the integrity of [its] territory.’ But, Liza Schuster, a leading expert on migration issues based at London’s City University, says ‘there is no commitment to uphold a duty to protect, to be a refuge.’
The European Council agreed its strategic agenda 2019-24 (‘Agenda’) on 20 June 2019. It describes as one of four priority areas ‘protecting citizens and freedoms’, stating the intention to defend EU citizens against existing and emerging threats.
Schuster, whose focus includes domestic and European asylum policy, calls the Agenda ‘very defensive’. ‘Its focus is “protecting citizens” – not all residents,’ she says. ‘And what are these threats? Migrants first, then traffickers, terrorists and cyber criminals.’
Karl Waheed, Senior Vice Chair of the IBA Immigration and Nationality Law Committee, says the very goal of integrity of borders is incompatible with the goal of giving human rights the conventional protection. ‘The forced migrant whose life is at risk in their home country will put their life at risk, and those of their children, to reach an EU country of refuge,’ he says. ‘The forced migrant will reach the EU, or die trying.’
Co-Chair, IBA Immigration and Nationality Committee
An EU official, speaking anonymously, describes the Agenda as a ‘signpost to the institutions’ that must be taken in context. ‘You have an agenda that is agreed by 28 politicians, so it is less strategic, and more political. We wanted a forward-looking text, but [at Member State level] there is little trust, there are too many conflicting visions.’
Barbara Wegelin is Refugee Officer of the IBA Immigration and Nationality Law Committee. ‘On a positive note EU leaders are acknowledging that migration can’t be solved as a national crisis, it requires collective EU action,’ she says.
The European Council details a number of actions it will take under this priority area. It intends to develop a ‘fully functioning comprehensive migration policy’, for example. Further, it aims to find consensus on reforming the Dublin Regulation, which determines the EU Member State responsible for examining an individual’s application for asylum.
Reforming the Common European Asylum System was a key goal of the Juncker Commission from 2014-19 but little progress was made. ‘It’s easy to be cynical; [reform is] a top priority again but will it happen?’ says Wegelin.
Responding to the global migration crisis, the International Bar Association Presidential Task Force on Refugees and Migrant Children has examined the concept of an international protocol for a refugee visa. Such a visa would be issued to a person in an unsafe area who is facing a threat to their life, where such presence is certified by an independent international organisation also present in the area. This work is due to feature in a showcase session on 24 September 2019 at the IBA’s Annual Conference, in Seoul.
How best to respond to migration by sea – particularly in the Mediterranean – remains the subject of controversy. In 2014, the EU moved from Operation Mare Nostrum – a naval and air operation run by the Italian navy – to Operation Triton. Triton’s primary focus was border control and surveillance and it was run by the EU’s Border and Coast Guard Agency, Frontex. Triton has now been replaced by Themis, which retains ‘search and rescue as a crucial component’, according to Frontex.
Anne O’Donoghue, Co-Chair of the IBA Immigration and Nationality Committee, says the EU ‘should place greater emphasis on sea rescues and saving lives and preventing the return of migrants to countries where they are at risk. It needs to genuinely expand the safe legal avenues for refuge.’
However, the EU official says that ‘If the EU allows mass spontaneous boat arrivals to its coasts, it sends out the message to millions of migrants potentially ready to travel to the Libyan coastline and risk their lives crossing the Mediterranean. This will not improve the situation, it will hugely exacerbate it.’
‘This is what happened when we massively expanded search and rescue operations in the Mediterranean in 2014, migration numbers also massively expanded, so you can see the moral conundrum,’ the official says. The preferred approach has been a drive to prevent departures along with humanitarian efforts, the official explains.
A request to the International Criminal Court (ICC), made in early June by lawyers Juan Branco and Omer Shatz, for punitive action over the EU’s migration policies in the Central Mediterranean and Libya from 2014 onwards, also put the EU’s response in this area in the spotlight.
The request notes that the replacement of Mare Nostrum cannot be said to have directly caused deaths, but that statistics based on the period of January-April 2014 compared to the same period in 2015 highlight that the risk of dying for migrants making the crossing increased 30-fold. The lawyers allege that ‘EU agencies and agents were fully aware of the lethal consequences of ending Mare Nostrum’ and that the change to a deterrence-based policy was ‘intended to sacrifice the lives of migrants in distress at sea, with the sole objective of dissuading others in similar situation from seeking safe haven in Europe.’
Wegelin, a senior associate at Everaert Advocaten, warns that ‘The EU is a master in being opaque about what it does as a Union, collectively, and for which it can be asked to defend itself; and what it claims are bilateral agreements struck by individual Member States with non-EU countries.’
Wegelin gives as an example the EU-Turkey Statement, which the Court of Justice of the European Union declined to rule upon as it is not an EU instrument. ‘The ICC will hopefully get to investigate the heart of the matter,’ she says.