Blog post written by Dr Dana Schmalz, a Research Affiliate of the RLI and a postdoctoral research fellow at the Max Planck Institute for the Study of Religious and Ethnic Diversity in Göttingen.


When non-governmental organizations such as Médicins Sans Frontières (MSF) or SOS Mediterranée engage in rescue operations in the Mediterranean, they are not only rescuing migrants from overloaded boats, they are also rescuing, in the view of many European citizens, Europe’s conscience from the disgrace of inaction in the face of this humanitarian crisis; the disgrace of letting hundreds of persons drown every month at Europe’s Southern border, many of whom would qualify for protection under international and European law. Forty per cent of rescue operations in the Mediterranean are carried out by civil society organizations, and their public support brings together those voices that strongly disagree with the dominant political position of the European Union regarding its external borders. But as split as opinion is on the correct border policies to adopt, so is opinion divided on the role of these non-governmental organizations (NGOs). The more they are recognized as significant actors and spokespersons in the context of rescue and interception operations in the Mediterranean, the more they have come under pressure and sometimes serious threat.

The Italian Code of Conduct for non-governmental organizations engaged in rescue operations highlights the conflict surrounding the role of NGOs in this area and the increasing pressure they face, and underlines the link between questions regarding control of Europe’s external borders and the question of intra-European responsibility-sharing. The two cannot be separated, and there will be no genuine institutional response to the tragedies in the Mediterranean without a comprehensive and just approach to the quest of intra-European solidarity and cooperation.


Conflict of activities, conflict of narratives

The conflict over rescuing migrants in the Mediterranean appears in the form of conflict between activities: between activities directed at assisting persons who risk their lives in order to leave, mostly Libya, towards Europe on the one hand; and activities directed at obstructing irregular migration and tackling smuggling of migrants on the other. In terms of legal principles, this conflict emanates from the tension between universalist commitments inscribed in human rights treaties, rescue obligations under the international law of the sea, and refugee law on the one hand, and the principle of state sovereignty on the other, which generally allows states to control and limit access to their territories. There are cases in which measures of border securitization violate international law, such as certain push-back practices; but international legal rules do not and cannot resolve the conflict entirely.

The conflict translates into opposing narratives about who is to blame for the deaths in the Mediterranean. There is the view, chosen for instance by the European Council in the Malta Declaration, that the smuggling of persons constitutes the core of the problem, and that the scandalous number of fatalities is attributable to insufficient combatting of these smuggling activities. Drawing on that description, private rescue operations have been accused of not solving but increasing the problem by encouraging migrant departures from Libya. The opposing view is that tightening conditions for maritime migration will not prevent persons from undertaking such journeys, but only increase the number of resulting deaths. The extremely serious circumstances for migrants in Libya, as established by official reports, constitute human rights violations on a level that qualifies persons not to be sent back to Libya, and make it seem highly implausible that limiting rescue operations would prevent migrants seeking to move onwards to Europe. From that perspective, the scandal lies rather with the insufficient response from European authorities, which the non-governmental organizations partly alleviate through their rescue activities in the Mediterranean.



European solidarity and cooperation

The debate on external border policies cannot be held in isolation from the question of inter-state responsibility-sharing for asylum-seekers within Europe. This interrelation became most clear when in 2013 Italy launched Mare Nostrum, an operation with a strong focus on rescue in the Mediterranean, which however did not get support from the other European member states and was ultimately replaced in 2014 by the European operation Triton, which shifted the focus of these maritime operations towards border security. How many lives are saved in the Mediterranean is a question also of internal European cooperation and solidarity. While the support for Mare Nostrum mainly concerned financial responsibility-sharing, the more pressing issue now is the responsibility for the migrants that have been rescued. As most persons arrive at the Southern European borders, Italy and Greece have been the states required to provide first shelter.

They are also the states that, according to the Dublin Regulation (DR) ,would in most cases be responsible to conduct asylum procedures and host refugees once recognized. The DR, part of the Common European Asylum System (CEAS), contains rules allocating responsibility for asylum seekers among member states. The fallback rule is article 13 (1) DR, according to which the first EU member state into which an asylum seeker has “irregularly crossed” the border in to European territory is responsible for processing their asylum claim and ensuing host responsibilities for those who are recognized as refugees or in need of international protection. It has long been pointed out that this leads to a highly unequal distribution of asylum seekers among member states, and successive judgments from the European Court of Human Rights and the European Court of Justice prohibiting Dublin returns to the first country of entry in certain circumstances has further underlined the problems arising from this system. That something must be done about the situation is generally agreed, shown by the European Council’s decisions on relocating 160,000 asylum seekers from Italy and Greece to other member states. Yet the promises made by other EU member states are consistently not met, and the number of relocations actually undertaken remains very low.


Italy’s Code of Conduct

Italy and Greece’s frustration of the current responsibilty-sharing system within the EU is understandable, and its impact on rescue missions on the Mediterranean disturbing. To be clear, the shortcomings on intra-European responsibility-sharing yield disastrous effects for asylum-seekers already on the European territory. But their impact on the question of external border policies and rescue operations adds yet another layer of concern. Over the last days, Italy reportedly assisted the Libyan coast guard in hindering the departure of migrants bound for Europe (a potential violation of international law, as can be argued with reference to the Michigan Guidelines on Refugee Freedom of Movement.) Italian authorities are currently against a non-governmental rescue organization, accusing it of facilitating illegal immigration. And there is the Code of Conduct that Italy introduced, addressing non-governmental organizations involved in maritime rescue operations in the Mediterranean.

The background to Italy’s Code of Conduct is, firstly, the conflict between rescue operations and border security in the Mediterranean, and about the role of non-governmental organizations therein. Secondly, it is grounded on the fact that rescued migrants are brought on land in Italy without the effective involvement of other member states in responding to the arrivals. Along these lines, the Code’s introductory paragraph emphasizes that “the rescuing activity cannot be separated from a reception path” and points to the principle of solidarity in EU law and the question of adequate sharing of responsibility among member states. Among the points listed in the Code are the prohibition, unless explicitly required under international rules, against entering Libyan territorial waters and the prohibition of communicating with ships to facilitate departure. It contains a prohibition on transferring persons to other vessels, includes reporting obligations concerning the rescuing capacity of ships and training of their crew, and an obligation to cooperate with the Triton operation in order to combat smuggling activities.

The consequences in failing to sign the Code or to comply with it are not clear, the threat to organizations conducting rescue operations at sea has been a denial of entry to ports and debarkation in Italy. The Code’s legality under international law has been disputed, and MSF has made it clear in a statement that it will not sign the Code since the rules might interfere with efficient life-saving activities. The legal questions regarding sanctions will certainly receive concrete discussion if the Code were to take effect. But apart from these questions, it is not hard to see reflected in the rules the concern that humanitarian rescue would override any measures of border security, and that the impact would have to be shouldered by Italy alone. It in that sense highlights the junction between legal boundaries regarding access to European territory, and regulation of responsibility-sharing for refugees and beneficiaries of international protection within Europe.



Is the entry into the European Union illegal – in the sense of the Dublin Regulation?

It is important to consider at this juncture whether it is actually clear that Italy is legally responsible for the persons rescued in the Mediterranean and brought ashore in Italy. This is the question raised by ECJ Advocate General Eleanor Sharpston in her recent opinion in the case Mengesteab, and it has the potential to allow things to be viewed in an entirely new light. The case Mengesteab concerned in its main aspects a Dublin transfer and corresponding time lines. Whether Italy was responsible for the person in the first place was a question not raised by the member state, but Sharpston in her opinion briefly elaborates on the point (para. 48 – 57),  in a sort of obiter dictum. The issue she raises is whether a person rescued in the Mediterranean and brought ashore actually meets the criterion of an “irregular crossing” in the sense of article 13 (1) DR.

Sharpston stresses, firstly, the explicit political demands to limit loss of life at sea and the ensuing coordinated search and rescue operations led by the European Union and member states. Given that explicit commitment she, secondly, asks whether the notion of “irregular crossing” into a member state can be applicable: if a person disembarked undetected and later presented himself to the authorities, she argues, that would constitute an irregular crossing – but what if a person is rescued on the High Seas and brought to the state? There are thus issues of control, of visibility, and of being subject to politically-endorsed operations. The conditions of entry into the EU are, Sharpston holds, thirdly, subject to overlapping rules from international and European refugee law, as well as from the international law of the sea. That the arrival of rescued migrants in Italy falls under article 13 (1) DR is, considering these arguments, at least not clear-cut.

As said, the question was not directly relevant to the Mengesteab case, and we will have to wait for another case that brings the issue before the court for a determination on this issue. Given the disagreement between Advocate General Sharpston and the Court’s decision in the Jafari case, also concerning the interpretation of “irregular crossing” in article 13 (1) DR, we might be wise not to expect too much judicial revolution in this field. Nevertheless, questioning the Italy’s automatic responsibility under the Dublin Regulation can stimulate the broader debate on adequate sharing of responsibility, as it underlines how these are matters of interpretation and decision, and that ultimately the task of creating a sustainable asylum system falls upon European states jointly.


Legality, regularity, legitimacy

The point that Advocate General Sharpston makes also points to another aspect, namely the label of ‘illegality’ attached to migrants’ arrival via the Mediterranean. Notions of “preventing illegal migration” are omnipresent in European border policies, stressing the side of state sovereignty in the above-mentioned conflict of legal principles. The illegality of migrant arrivals is often raised in public debates, and to point out the lack of legal entryways can hardly counterbalance the disapproval that remains attached to the notion of illegalitIn that vein, the term “irregular” is often used instead (cf. the summary by the IOM), to acknowledge the lack of formal rights to enter a territory without judging the legitimacy of the migration itself.

Given these connotations, it is interesting to mark the differences in the language versions of the Dublin Regulation: The English version in article 13 (1) speaks of “irregular crossing”, while in articles 20 and 24 it uses the terms “unlawful” and “illegal” in connection with the asylum-seeker’s stay on a territory. The French version of the DR employs the term “irregular” both in article 13 (1) and also in the later articles (“séjour irrégulier”). The Italian version inverses the English usage, employing the term “illegal” in connection with the entry in DR article 13 (1) and the term “irregular” in connection with the stay (“soggiorno irregulare”) in DR articles 20 and 24. The German text finally uses the term “illegal” throughout, speaking of illegal crossing of the border (“illegales Überschreiten”) and illegal stay (“illegaler Aufenthalt”).

These differences must not be taken to create ambiguity in interpreting the Dublin Regulation, but they illustrate that we are dealing with a matter also of public perception – and with a field in which formal legality and illegality are very close. There are no simple responses. The worst that can be done in that situation is to exploit the notion of illegality to one-sidedly cut off the debate about how to balance concerns of sovereignty with the obligations of human rights and international refugee law. What is definitely possible however is to arrive at a situation of sincere cooperation and fair sharing of responsibility among EU member states, which at least provides the ground for a prudent stance in the balancing task.


Photograph 1: © SOS Méditerranée 2016
Photograph 2: © davide bonaldo /

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