SOUTHERN MARITIME BORDERS AND IRREGULAR MIGRATION

Transcription

1 FULVIO VASSALLO PALEOLOGO Università di Palermo SOUTHERN MARITIME BORDERS AND IRREGULAR MIGRATION 1. After the timid openings of the Barcelona process, started in 1995, and the hopes aroused by the Tampere documents in 1999, from a European Council to another, especially after the 11 th September 2001, the politics of barring and militarization of the borders, have influenced the decisions of the EU Member States on immigration and asylum issues. Meanwhile, illegal migration has not decreased, and it has become a structural phenomenon

2 in a free trade economy of global dimensions, characterized by the delocalization on an international scale, of productive capacity and a considerable parallel market of irregular employment, from building trade to agriculture, from services to care jobs. The European common market is a formidable attraction for the migrant workers from all over the world, ready to accept the risk of a crossing on a sea-cart, live in a clandestine condition and earn low wages, as long as to guarantee a minimum chance of survival for their families. And it s a well known fact, the increasing role of the immigrants remittances, in the formation of the gross domestic product of the Countries of origin and transit. 2. The failure of the expulsive politics, carried out on a national level, and that have reduced the administrative detention centres, to places of selection and expulsion of working force in excess or as an extension of prison detention, rather than a real expulsion of undocumented migrants, has meant for the main European Countries a rediscovery of the international cooperation, and the European politics of neighbourhood (PEV). Rather than an instrument to practice an authentic solidarity with the population of the poorest Countries, with initiatives entrusted to local and non-governmental organisations, they have tried to impose, to the transit Countries Governments, especially in north Africa, agreements of collaboration, based on the financing of the politics of arrest, detention and expulsion of undocumented migrants, before they can make the last jump, the crossing towards Europe. In this direction, Italy and Spain have given different examples, in the relations with Libya and Morocco, they have made agreements that have allowed the blockage and arrest of migrants, in many cases potential asylum-seekers and unaccompanied minors, even if coming from third Countries, this in exchange of preferential treatments in commercial exchanges with the European Community area Countries. 3. The essential elements of these politics of restraint, of blockage of the migration movements, are the agreements on joint patrolling and the activities of the FRONTEX agency, instituted in 2004 by the European Union for the monitoring and control of the external borders and the contrast of illegal immigration. The deterring effect constituted by the drawing up of military units, financed by the European Union, hasn t stopped the illegal migratory movements, but the routes have become more dangerous, with the recourse to small boats in order to escape controls of radars and reconnaissance aircrafts. If the number of migrants that have transited through Libya and Morocco towards Italy and Spain has decreased, the number of departures from Mauritania, Senegal and Guinea Conakry of

3 migrants directed to Spain, and from Algeria, Tunisia, through Greece towards Italy, and not only towards Sicily but also towards Sardinia and Puglia, is increased. The number of victims of these new routes, is still uncountable, migrants are forced to undertake desperation journeys in a lack of an actual recognition of the right to asylum in the north Africa Countries and a substantial channel of entry for work. The European Union has not yet adopted a Directive on entries for work, and the different directives on asylum and humanitarian protection issues, allow, among the different Countries, very diverse situations and practices of administrative authorities that generally prevent an effective access to the asylum request procedures. 4. In the past years, Italy has been in forefront in Europe, in the practice of collective expulsions towards the so-called Countries of transit, such as Libya and Egypt, Countries from which, numerous migrants, among which many potential asylum-seekers, have been returned towards those Countries, like Eritrea, Sudan, Nigeria, Ghana, Mali but also Bangladesh, Pakistan or Sri Lanka, from which they had fled. The turning-point started with the Cap Anamur case, in summer 2004, when Germany, changed politic, probably for electoral reasons of the Government in charge, denying to the shipwrecked people, the access to the asylum procedure. Italy, in order not to set a dangerous precedent, expelled summarily even those for whom the European Court for Human Rights had recognized the suspension of the rejection measure. In that occasion, the agreement between the Ministers of Interior of Italy, United Kingdom and Germany, reunited on the 6 th of July 2004 in Sheffield(England), opened the way to the subsequent European politics centred on collective expulsions, rejections in open sea and on the externalization of the borders controls and administrative detention centres. As it was soon after experimented in Lampedusa, in October 2004, March 2005, and in other occasions through the year, from Italy to Libya and Egypt, in spite of the censures of the European Parliament and the European Court for Human Rights. 5. After the Cap Anamur case, for which there is still a criminal procedure pending in Agrigento, severe sanctions dissuade the fish-boats and the mercantile ships from helping migrants, as if in open-sea International Conventions that provide for the obligation of immediate rescue, are no longer in force. As if in international waters the cause of humanitarian justification, that excludes the criminal sanction for those that help undocumented migrants on the national territory with no profit purpose, is no longer

4 applicable. The evidence given by many migrants, refer how ships and fishermen-boats ignore rescue requests, sometimes without even giving the alarm that could save the life of many people. Without the immediate extension of the humanitarian exempt to the rescues at sea made by civil vessels in international waters, there is the risk that the rescue activities can become less timely and the list of deaths and dispersed longer and longer. 6. Which guarantees will be now recognized for the fundamental rights of to migrants with the Mediterranean European borders and the readmission politics? How to prevent tragedies of migrants in the future? -The first line of intervention must be located at a European level and consist in the support of all those positive actions made by local institutions and NGO s, that on a national and international level, especially in transit Countries, operate for asylum-seekers and humanitarian protection. -The agreements on economic cooperation will have to restore a planning role to the nongovernmental organizations and to local institutions, in order to spread correct information on the perspectives of emigration to Europe and to support the families of those destined to illegal emigration. -It is necessary to establish a new discipline on legal entries for work, on a national level, if it will not be possible to find an agreement on a European level. If there will not be soon forms of individual regularization, it will be necessary to resort again to a generalised act of regularisation. The job market needs to be moralised. If not, informal work will be a strong attraction that no ship will be able to stop. -Facing the mixed composition of the migratory fluxes, there is the need of a European regulation that overcomes the Dublin II Convention and guarantees human life safeguard and the protection of the vulnerable people such as asylum-seekers, women and minors. In particular there must be a decriminalization of the rescue intervention made by non-military vessels, in order to make the rescue actions more timely. -The FRONTEX missions must be re-modulated in a perspective of absolute safeguard of human lives and the right to asylum, not to play a more extensive role of in the Mediterranean. The EU policy more effective protection of external borders needs transaparency and democratic accountability. -The readmission agreements with many north African Countries are based on the presupposition that these Countries have approved the Geneva Convention on refugees. If

5 you consider the effective dimension of the right to asylum in these Countries you can verify how this status is granted only to little hundreds of cases. The approval to the Geneva Convention is not sufficient if the single States violate the fundamental principles of the Convention and if they don t consent the timely intervention of the UNHCR representatives, all this can constitute the premise to severe violations of the human being fundamental rights by the involvement, in the FRONTEX patrols, of naval units of Countries that do not respect the rights of asylum-seekers, such Libya. -There cannot be no longer expulsions and rejections towards Countries that do not respect the fundamental rights of human beings, starting from the right to asylum. Rather than financing administrative detention camps in the transit Countries, places where abuses and trafficking of all sorts happen, it is necessary to build even in those Countries, real reception centres for asylum-seekers. The legislation on expulsions and rejections, must be modified, considering it as an exceptional instrument and not the ordinary method to deal with migration. -The EU Member States must reconsider the readmission agreements, because in contrast with international and national legislation that protect the fundamental rights of migrants and because the police actions carried out on the basis of these agreements, are not subjected to an effective jurisdictional control. The agreements already stipulated with the Countries of transit must be revoked or at least renegotiated and, the future eventual agreements, discussed and approved by parliamentary assemblies, will have to be strictly in accordance with the international and constitutional norms on the protection of the fundamental rights of human beings, starting from the Nizza Charta that prohibits collective expulsions and from the European Convention for the safeguard of human rights, that in case of violation, provides for immediate means of appeal before the European Court for Human Rights. By Fulvio Vassallo Paleologo University of Palermo