Asylum Policy in the EU: Holy Saint Florian, Spare this Cottage, Burn the Other One!
In the past days, an estimated 1,000 people drowned in the Mediterranean, when two boats sank in quick succession. Nothing about this phenomenon is new, except the large number of passengers on the boats. In the most shocking catastrophe of this kind so far, over 300 people drowned near Lampedusa in 2013. This prompted Italy, which had so far distinguished itself by illegal push-backs to Libya and criminalizing assistance to migrants in distress at sea, to start the operation “Mare Nostrum” at the end of 2013. Despite its surprising choice of name, this operation saved tens of thousands of lives over the course of a year. After that, Italy handed over to the EU – which merely increased existing Frontex border protection operations in the Italian coastal waters, leaving refugees at high sea to their fate.
The urgent call for a search and rescue system adequate to the situation is completely justified. Assistance in distress at sea is an age-old international obligation, which was laid down in several international treaties. The Search and Rescue Convention obligates its 105 state parties (including the EU member States) to provide adequate search and rescue (SAR) services in their coastal waters and to cooperate with other states to cover the SAR zones in international waters. It is therefore not only about voluntary humanism, but also about international legal obligations.
To reject this as support for smugglers, as the German Minister of Interior has done, is as cynical as it is misleading. If the lack of SAR services had any negative effect on sea migration, numbers would have drastically decreased after the end of “Mare Nostrum.” This was not the case, to the contrary: the “illegal border crossings” recorded by Frontex in the central Mediterranean for the first quarter of 2015 (10,237) are practically identical to those of 2014 (10,799), when “Mare Nostrum” was still in operation. People who think (or know) that they have no other chance will accept the danger and still get in a boat. Not saving lives at high sea to combat human smuggling is about as effective as criminalizing narcotics to combat the international drug trade: The demand is largely unaffected by sanctions, and as long as it exists, there will be a supply. The supply will just be the more expensive and unsafe, the harder it is to secure.
Many of those who risk their lives in the currently most deadly waters in the world are entitled to international protection. Over 80% of the Syrian and over 60% of the Eritrean protection seekers are granted refugee or subsidiary protection status in Germany. In order to reach the “Area of Freedom, Security and Justice,” however, they have to enter the sphere of illegality: practically all countries of origin of refugees are subject to the Schengen visa regime, and protection visas do not exist. (Even appointments in German embassies for Syrian refugees appear to still be available only for money.) This leaves refugees with two options. The can seek protection in a country in the region—but the Northern African states can often not offer safety. Or they try to make their way to Europe via Turkey or via the Mediterranean. This means relying on smugglers.
For the routes have become ever more dangerous over the years—a success of the Spanish border control policies, as Sonja Buckel has shown. The straits of Otranto and Gibraltar were already risky, but could still be passed with fishing boats; the 100km to Málaga, Almería and Granada were already more dangerous, and today it is the often deadly route Libya–Italy, which covers a distance of over 300km. In West Africa, the 120km between Morocco and the Canaries were also still navigable in cayucos; the increased surveillance in cooperation with Morocco and Frontex led to departures from Mauritania, Senegal and Cape Verde, up to 800km away.
Smugglers aren’t necessarily part of international organized crime, or even IS. Sometimes they are just fishers who, due to European fishing trawlers, have lost their basic income; this, too, was documented by Buckel. But of course it is criminal to push 700 or even 950 people onto a boat that is much too small, most of who cannot swim, and to not even provide them with safety vests.
The whole thing is a mess—everything is connected to everything else, and there are no easy solutions. Yes, it may well be that even more people will undertake the straining and costly trip if they don’t have to risk their lives any more in the process. Because the resettlement programs to get refugees out of crisis regions are not nearly sufficient. But trying to prevent people from moving is not a solution either.
First of all, they have a right to leave. Any person has the right to leave any country including her own; this was already proclaimed in the Universal Declaration of Human Rights, and it was since made binding by several human rights treaties, including Protocol No. 4 to the ECHR. There is no corresponding right to enter another state, but for departure at sea this is not a problem. And as soon as protection seekers reach the European sea border, they benefit from non-refoulement. This principle—laid down in the Refugee Convention and the Convention Against Torture and recognized by the ECtHR—forbids rejecting people threatened with persecution, torture, or other similarly severe harm, and requires a careful examination of their protection needs. This also applies at high sea, as the ECtHR has affirmed in the case of the Italian pushbacks. Of course, the right to leave is not without limits, but it cannot be flatly denied.
Secondly, wanting to protect fleeing people from themselves means closing one’s eyes to the fact that remaining in the region is often not an option. Refugees are often threatened with arbitrary detention, abuse, exploitation, homelessness. For children especially, such situations are catastrophic. Of course it would be nice not to have to flee for months or even years, not to have to use up all savings to pay smugglers, not to have to risk one’s life at sea, to stay close to home. But often this is not the alternative. It rather seems to be the wishful thinking of those who do not want to take in such people, who would rather see other countries in charge, e.g. qua geographic closeness. This, however, is not a matter of humanity, but of passing the buck and letting others bear the burden: “Holy Saint Florian / Spare this cottage / Burn the other one!”
If smugglers aren’t to profit from these needs, legal access to asylum must be opened—showing the very solidarity to overstrained countries in the region that the Refugee Convention demands in its preamble. This requires a radically different approach; the measures envisaged by the EU are but a meager beginning. Because people will not stay in regions where they have no chance. Even the Berlin wall did not prevent citizens from risking their lives trying to leave the GDR. People will continue to try and access protection in Europe, even if it is life-threatening. For hope springs eternal in the human breast. What would you do?