The resulting rhetoric illustrates the dichotomy between European states’ migration policies and migrants’ lived realities. European governments blame the loss of life on smugglers, while migrants and international migration and humanitarian organisations lament the lack of regular migration pathways and European states’ failure to adhere to international law obligations.
The geopolitics around the Mediterranean Sea provide a perfect storm for irregular migration – conflicts, instability and limited livelihood opportunities in parts of Africa, the Middle East and South Asia, coupled with a relatively short maritime journey to reach European shores.
But because of some European states’ restrictive immigration policies – driven in part by migrant stereotyping, political agendas and the purported challenges of managing the influx of maritime migrant arrivals – hopeful migrants searching for a better future for themselves and their families undertake the maritime journey to enter Europe irregularly. Popular first ports of call include Italy, Greece and Spain, all situated near points of departure. From there, migrants mostly continue their journey across Europe.
The maritime journey is treacherous, with adverse sea and weather conditions on unseaworthy vessels often skippered by migrants themselves. They frequently lack sufficient food, water, fuel and life jackets. The International Organization for Migration estimates that since 2014, over 28 000 migrants have died or gone missing in the Mediterranean. Many more lives are likely lost without anyone knowing.
These figures do not account for those who die or are exploited while making the landward journey to coastal exit points, often passing through hostile and conflict-ridden areas, and paying multiple smugglers thousands of dollars to facilitate their passage. They also do not account for the maltreatment of many who are forced to return to points of departure by European-sponsored maritime pushbacks.
Chart 2: Migration routes between Africa and Europe
(click on the map for the full size image)
While paying to be smuggled is not a criminal act, the smuggling of migrants and procuring their illegal entry into another country is criminalised in the United Nations Convention Against Transnational Organized Crime’s (UNTOC) Smuggling of Migrants (SOM) Protocol. States therefore focus primarily on smugglers who are said to exploit migrants’ vulnerabilities for financial gain while also putting migrant lives at risk.
This assumes that all migrant smuggling is organised by criminal networks, with little acknowledgement of other motivations for migrant smuggling, such as altruism. This smuggler-focused response also fails to acknowledge that people have always been mobile, and that irregular migration is often due to structural conditions with deep colonial roots, coupled with restrictive migration policies rendering regular, legal entry impossible.
When migrant-carrying vessels are in distress, any law enforcement prerogative is trumped by the international law obligation to help the distressed vessel. This is regardless of whether the vessel is in coastal state or international waters, whether migrants are undocumented, or whether smugglers were paid to facilitate the journey. This is affirmed in multiple international treaties. Professor Natalie Klein of the University of New South Wales told ENACT: ‘The duty to rescue those in distress at sea is one of the oldest obligations in the Law of the Sea, and states should adhere to this obligation regardless of who is in distress or what security interests are … at stake.’
Acknowledging the possible treatment of migrants, the SOM Protocol also requires states to adhere to their international humanitarian and human rights law obligations when implementing the protocol. This includes the Refugee Convention, which contains the principle of non-refoulement – the prohibition against returning migrants to countries where they could face persecution.
Herein lies the biggest failure of the international community and the implementation of UNTOC SOM Protocol. The focus on migrant smuggling as a crime has not only failed to counter irregular migration, but also results in the violation of migrants’ fundamental rights and contributes to thousands dying at sea.
States exploit the anonymity of operating at sea, which allows them to ‘deal’ with migration away from prying eyes. European countries like Italy, Malta and Greece have failed to react to signs of vessels in distress – or they delay their response or deny their responsibility to assist. This includes pushing vessels away from European coastal state waters or back to points of departure like Tunisia and Libya, where migrants are often detained, robbed, trafficked or forced into labour.
Many who reach European shores but do not come from countries qualifying for asylum are deported. And those who do qualify for asylum and don’t fall victim to collective expulsion often live in atrocious conditions while their applications are processed. There are also plans to send arrivals to safe third countries under the European Union’s (EU) Pact on Migration and Asylum, and Britain’s plan to send arrivals to Rwanda, despite being declared unlawful.
Stepping in where states have failed, non-governmental organisations (NGOs) have been carrying out search and rescue operations. But they also receive pushback as some states refuse to allow them to disembark migrants on their shores. Countries like Italy, Gibraltar and Panama have prevented NGO vessels from effecting rescues by impounding them or stripping them of their flags. They have also prosecuted NGO staff as smugglers and human traffickers.
Médecins Sans Frontières calls these efforts to avoid having to process and care for irregular migrants the EU’s de facto migration policy. Similarly, UN High Commissioner for Human Rights, Volker Türk, noted: ‘Experience teaches us that adopting a tougher line on curbing irregular migration will not prevent departures, but rather result in more human suffering and deaths at sea. [It] would be … better for countries to provide safe and regular pathways for migration and prevent unnecessary deaths.’
As the world reels from the effects of COVID-19, Russia’s invasion of Ukraine, conflicts and instability, migration will continue. And smugglers will keep providing pathways where migrants have no legal alternative avenues.
This does not exonerate those who load migrants onto dilapidated vessels knowing those vessels will not last the journey – they can be charged for multiple other crimes. But continuing to prioritise smugglers and migrant smuggling, over migrants’ rights and lives is equal to criminalising migrants and potentially sentencing them to death at sea, or on land if they are returned to countries like Libya and Tunisia. What are the consequences for European governments that provide financial support to these states? Or that fail to adhere to their own international law obligations?
Before the world becomes desensitised to the ongoing loss of life in the Mediterranean, it is more important than ever to find a balance between European states’ sovereign right to regulate entry and their international obligation to adhere to international human rights obligations.
Dr Carina Bruwer, Senior Researcher Southern Africa, ENACT