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UNIVERSITY OF BATH

Department of Politics, Languages and International Studies

Externalisation of EU immigration policy: a raised drawbridge?

___________________________________________________

Arsenia Nikolaeva

Dissertation submitted in partial fulfillment of the requirements for the MA in Contemporary European Studies (Euromasters) degree.

September 2011

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INDEX

Introduction………………………………………………………………………....3

I - Literature and Theoretical Insights…………………………………………….6

- 1.1 Securitisation theory…………………………………………………………..6- 1.2 Externalisation of immigration policy vis-à-vis treaties……………………...8- 1.3 Readmission treaties: New obligatory externalised cooperation………….....17

II - Case Study: Italy – Libya relations………………………………………………..19

Methodology……………………………………………………………………....20

Choice of partner for cooperation on externalisation and type of agreements concluded………………………………………………………………………….21

- 2.1 Cooperation with a pariah state…………………………………………….22- 2.2 Basing cooperation on material incentives or the hypocritical Pan-

Africanism……………………………………………………………................25- 2.3 Informality of the agreements………………………………………………26- 2.4 Adherence to the international human rights accords signed by partners

cooperating on externalisation of migration........................................................28 - 2.5 Effect of externalisation policy and border control mechanisms on the

number of refugee entries into the EU………………………………………….33

III - Arab Spring swept Maghreb, migrant weapons…………………………..39

IV – Conclusion…………………………………………………………………...44

- Recommendations………………………………………………………………46

Bibliography………………………………………………………………………49

List of Tables and Figures

Table 1: Asylum applicants and First Instance decisions on Asylum applications

2008-2010……………………………………………………….............................35

Figure 1: Quarterly detection of illegal border crossings by land and sea………...37

Table 2: Number of bona fide refugees possibly present on intercepted ships…....38

Figure 2: Number of bona fide refugees possibly turned away from EU borders...38

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INTRODUCTION

“One refugee is a novelty, ten refugees are boring and a hundred refugees are a menace”1.

(Greenhill 2010:1)

Immigration has become such a discussed issue in the press and from a political tribune

that it seems that Europe has been exposed to this phenomenon for a long time. Eurobarometer

shows that, in the opinion of the EU citizens, immigration ranks higher than terrorism on the list

of concerns (Luedtke 2005:84). The portrayal of immigration as an apocalyptic issue is accepted,

the description of it as a ‘plague’ is not uncommon (De Haas 2008:1305).

In fact, before the 1990s Europe was a continent of emigration rather than immigration,

which resulted in large Diasporas of Europeans living away from the European continent. The

1990s propelled immigration into European political agenda with the first large inflows of

migrants2 fleeing the Yugoslav crisis. The peak of asylum claims happened in 1992 but after that

the numbers have dropped; the reasons for this were, as Brinkmann writes “inter alia … more

stringent asylum laws in the Member states” (2004:193). For more than a decade migrants

coming to the EU Member states came mostly in search of better life, although some still were

escaping torture or marginalisation and therefore were under the protection of international law

and eligible for asylum, among those Somalis fleeing a failed state and Eritreans, members of the

opposition, escaping from post-2001 political conflict. The wave of revolutions which swept

North African states in 2010 and 2011 has exponentially increased the number of eligible asylum

seekers which could migrate to Europe. This dissertation will deal with the migration through or

1 An unattributed but oft-quoted phrase in refugee literature. 2 The term migrant in this paper will be used as an umbrella term encompassing both economic migrants and refugees (as defined by the 1951 UN convention). The term irregular migrants will be applied to all migrants that use irregular means of entering a country taking into account that some of these migrants are eligible for seeking asylum under international law.

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from the Maghreb countries to Europe and specifically with Italy and Libya cooperation on

migration control.

One of the most effective ways of distancing the issue of migration adopted by the

European Union has been the externalisation of its border controls and migrant determination

procedures through cooperation with countries of origin and transit states. While helping a

certain part of the EU population breathe freely, the use of ‘out of sight – out of mind’ approach

to dealing with migrants has a distinct effect on the fate of the irregular migrants which are

seeking protection from prosecution or war but are unable to enter EU by regular means. The

aim of this thesis is to analyse the effects of externalisation of EU immigration policy on the

possibility of seeking asylum in the EU member states.

A number of politicians have portrayed the immigration from the South as particularly

menacing, claiming there was a million of Sub-Saharan migrants in Libya waiting to leave for

the shores of Europe. The fear created by this political rhetoric changes the very fabric of

society, moving it from a more accepting and inclusive society of stability and homogeneity to a

more exclusive society of change and division. According to Young (1999), the fear is bred by

the public assessment of risk which is amplified by the mass media portraying crime. One can go

further and state that the links that certain media makes between crime and migrants directly

influences the public opinion on migration. Sensational reportage of the worn boats filled with

starving Africans, is one of an ‘invasion’ and makes many Europeans wish to retreat into the

‘Fortress Europe’ and pull up the drawbridge. However, the influence of media on public

opinion is not the aim of this paper and it will not be discussed in detail. It is this fear, however,

that makes any means of battling with migration flows acceptable.

First chapter contains theoretical and historical background. It will draw on existing

academic literature to outline the historical changes in the EU immigration policy and portrayal

of migration which ultimately led to a higher degree of externalisation. Firstly, the securitisation

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phenomenon as defined by the Copenhagen school of thought is analysed. The securitisation as a

main cause for validating the politicisation of the immigration issue which led to strengthening

of border controls is considered. Analysis of the treaties and policy developments involved in the

process of externalisation follows. While first chapter is general in dealing with migration policy,

the dissertation itself will focus on South to North migration to the EU and, thus, examples will

be drawn, exclusively, from African migration.

Second chapter will analyse in depth a case study of bi-lateral relations on externalisation

of immigration policy to the South of the EU, namely the association of Italy and Libya. There

are no official readmission treaties between these two countries or between EU and Libya;

therefore, it is an interesting case to examine, as while it has been informal, it has also been one

of the most successful alliances on externalisation in blocking illegal migration. The effect these

relations had on migration of refugees is to be discovered. The relations are analysed drawing

from both quantitative and qualitative methods of research. The aim would be to identify the

effect of cooperation of Italy and Libya on the ability of refugees to gain protection in the EU.

Chronologically, the alliance of Italy and Libya will be discussed up to February 2011, therefore

examining externalisation of immigration policy in peaceful time for Libya.

Third chapter looks at the events which have attracted our attention to the plight of the

migrants arriving in the South of the EU from the Maghreb region following the events of the

Arab Spring. The use of migrants as human weapons by Gaddafi are discussed as a possible

result of externalisation practises of Italy.

Conclusions are drawn in the fourth chapter. A number of suggestions will complete this

dissertation, looking at improving the effect of externalisation on the possibility for immigrants

to lodge an asylum claim and achieve protection from the European Union as is required by the

international human rights accords signed by the EU member states.

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I - Literature and Theoretical Insights

“Long before September 11 galvanized a new preoccupation with border security, issues surrounding refugees and illegal immigrants had transmuted in many countries from a matter of low politics to high politics, involving a shift in the definition of national security threats and in

the practise of security policy”.

(Greenhill 2010:5)

Securitisation theory

According to (Young 1999; den Boer 2008) our society has become a Risk society, where

catastrophes are accepted as a norm and fight against terrorism is a response to the anxiety with

which our contemporaries are ridden. Den Boer (2008) also observes a certain spill-over from

security politics into migration policy. This spill-over and strong link between security and

migration has been defined by a number of scholars as ‘migration-security’ nexus (Karyotis

2007, Miller 2001). This dissertation will, however, use the process of social construction of the

Copenhagen school. The process of securitisation3 of migration is a two-step process in which

migration is firstly declared to be a threat by a securitising agent4 through a ‘speech act’ (Buzan

1998:40) and further a governmental claim that this issue should be addressed vis-à-vis relating it

to the EU security agenda (Dover 2008; Huysmans 2000). Thus, according to Buzan (1998) a

real threat might not exist but by naming it a threat it must be dealt with as such.

Immigration was codified as a security issue in the EU policy in the early 90s, with the

general trend of broadening and deepening of the definition of what constitutes a security threat.

Much broader definition was accepted than the military threats, described in the works of

3 Here using the definition coined by the Copenhagen School of Security Studies: ‘naming is not just an act of providing a label to a pre-existing object but the discursive formation of that object itself’ (Van Munster 2005:1).4 Securitising agent is a social actor with a certain level of authority (i.e. a politician, media representative, security expert).

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classical neorealist writers. However, immigration was only made a worldwide security threat

after the terrorist attacks of September 11th 2001. Prior it was considered an important and

politicised issue but the attacks and the following discussion in the media, has made terrorism

almost synonymous with immigration and therefore, opened the floor for discussion of restrictive

migration policies in the new era of War on Terror. Many political scientists mark September

11th as a turning point for more restrictive immigration policy developments in the United States

and the European Union, as Baldwin-Edwards writes “the prevailing Eurocentric perspective on

Mediterranean migration lies almost exclusively in the security paradigm” (2006:311). Karyotis

writes of securitisation and the migration flows; “The political discourse concerning migration

reveals that national and supranational policy-makers in the EU have interpreted population

movements in terms of their danger to national security” (2007:1). Many political scientists, at

the same time, claim that the security threat from Africa is exaggerated in search of political

gains (De Haas 2008; Karyotis 2007).

The gradual dissolution of internal borders and free movement of people within the

European Union was achieved in the late 80s with the signing of the Schengen agreement. This

heightened the need for security of the external borders and caused, according to Pastore, “two

parallel processes: the gradual ‘Europeanization’ of internal security policies and the

‘externalization’ of security threats” (Pastore in Karyotis 2007:4). The breaking of internal

borders and its effect on the external borders had a profound effect on refugee travel to Europe,

as Professor James Hathaway predicted almost twenty years ago; “the evolution of a European

Union without internal barriers for members would be ‘devastating for refugees’ seeking access

to the territory” (Nessel 2009:644).

The more detrimental changes occurred following September 11th 2001 and the bombs in

Madrid underground in 2004 and London in 2005. The war waged on terror had a specific effect

on the migration issue; it fundamentally misinterprets the threat of terrorism coming from

migrants. The radicalisation of certain groups from Africa, for example, is linked to organised

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criminal gangs which traffic human beings, drugs and weapons (Dover 2008:114). Spanish

Presidency made war on terror its highest priority while equating it, openly, to the fight against

illegal migration (Karyotis 2007:8). The threat was greatly exaggerated by the media as well as

by politicians using anti-immigration as a political platform. Most politicians chose to overlook

the fact, that most of the terrorist activities in the European Union are “home-grown” (Monar

2010:24).

The Extraordinary Justice and Home Affairs Council Meeting of 20 September 2001

discussed internal security and the possibility of safeguarding it, while complying with the

international protection obligations stemming from human rights accords. This had a direct effect

on asylum seekers, as Karyotis writes it could be interpreted as “an attempt to find legal ways to

exclude asylum seekers from the provisions of the 1951 Geneva Convention, focusing in

particular on those suspected of terrorist acts” (2007:7).

Securitisation inevitably led to externalisation, any immigrant could present a security

threat to the European Union simply by definition. Nazarski writes of the military connotations

of the language used in relation to migration, “as if it there is an invasion justifying the building

of a fortress as well as the adoption of a border agency (FRONTEX) and within this framework

the implementation of Rapid Border Intervention Teams (RABIT)” (2008:40). An essential part

of the “securitization process” is the manipulation of the distinction between refugees and

migrants (Nessel 2009:668). Some migrants must be identified as refugees prior to being allowed

into Fortress Europe and other migrants, would be left out. Externalisation seemed like the

answer to the problem.

Externalisation of immigration policy vis-à-vis EU treaties.

The term ‘externalisation’ defines the process of transferral or exportation of

management of EU borders or classical migration controls from member states to third countries,

whether transit or sending (Billet 2010:74; Boswell 2003:622). Mechanisms used for

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externalisation of immigration policy are various; “extending and strengthening visa regimes,

offshore detention centres and offshore asylum processing, coastal patrols of the high seas and

the waters of third countries, military and intelligence operations and bilateral agreements”

(Taylor Nicholson 2011:6).

Firstly proposed and advanced by Blair government, externalisation was portrayed as

means of preventing deaths on the seas by bringing the possible places to lodge asylum claim

closer to the areas from where asylum seekers originated. The proposal included:

“’Regional Processing Areas’ (RPAs) and ‘Transit Processing Centres’

(TPCs); the former were to be located in the zones of origin of refugees

with the aim of strengthening reception capacities close to areas of crisis,

and the latter, positioned closer to EU borders, were envisioned as centres

where asylum seekers could submit their asylum claims” (Andrijasevic

2008:159).

Italy has also been advocating for the establishment of “procedures in order to process

asylum requests outside the territory of the European Union and which would then allow to

institutionalise entry channels to the EU for asylum seekers” (Paoletti and Pastore 2010:14).

Although the UK proposal of externalisation was refused at first due to negative public opinion

and Human Rights NGO protests, the EU soon set out on the road of externalising its migration

policy. From the 90s, when it has become a European rather than a National issue, the road

towards a higher degree of externalisation of migration policy has been a long one and the

measures adopted have had a direct effect on the ability of migrants to claim asylum. To follow

is a discussion of the treaties which acted as a catalyst for the externalisation of migration policy

and the effect that they had on the ability of migrants to be granted refugee status or, at the very

least, possibility of applying for it.

External factor of migration policy is not a new development; as far back as December

1998 a High-Level Working Group on Asylum and Immigration (HLWG) was created by the

General Affairs Council to create country specific Action Plans to control the growing influx of

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migrants by cooperating with and aiding the countries of origin of migrants, as well as the transit

states. Its main aims were two-fold, on the one hand it was meant to deal with the push factors in

the countries of origin, and its cross-pillar programmes were to include a wide range of

innovations from trade policy to development assistance. On the other hand, it would handle

immigration by increasing border controls. The Action Plans prepared by the HLWG were

fundamentally Eurocentric in the types of measures they offered. A number of critics observed

that in the Moroccan Action Plan, for example, out of 18 solutions proposed only one dealt with

developing the country of origin, while more than half dealt with suppressing and blocking

immigration (DGExPo 2006:6). This focus on the restrictive measures, rather than development,

will plague the externalisation of migration policy, favour the choice of short-term solutions in a

short-sighted manner and detrimentally affect the ability of migrants to claim asylum.

The Maastricht Treaty signed in 1992 gave the EU a coherent external dimension - the

Common Foreign and Security Policy as the third pillar of the Maastricht political infrastructure.

Although its priority was to ensure European security by restructuring Europe’s peripheral

environment through economic engagement, it also possessed a normative dimension, as

“Europe’s concern for good governance – also formed part of the security agenda in that it would

contribute towards domestic stability, thus minimising violent or destabilising spill-over effects

as far as Europe itself was concerned. It also partnered Europe’s desire, for Member States and

for the Union itself, for economic engagement for commercial purposes as well as a means of

building a common security agenda” (Joffé 2011:237). The Maastricht treaty codified the

securitisation of immigration by moving asylum and migration under the Justice and Home

Affairs (JHA) pillar (Chou 2009:546). From there on national civil servants were responsible for

dealing with asylum and immigration policy and they, thus, became the guardians of entry into

the EU. These developments have determined the way in which policy-making in migration

realm influences asylum seeking procedure and refugee protection:

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“since where you stand is influenced by where you sit, it seems natural that

these policy makers would be more likely to guard national interests and

defend national policy rather than to consider the situation in the countries

around the world, and the most appropriate policy Europe as a whole could

pursue in the interest of maintaining stability by guaranteeing protection to

refugees” (Van Selm 2005:10).

At the same time, new dialogue with non-EU countries of the Mediterranean basin was

initiated in order to promote peace, stability and prosperity. The vehicle through which this was

to be done was the Euro-Mediterranean Partnership (EMP), as was finalised at the Conference in

1995 in Barcelona. Fourteen Mediterranean partners and fifteen EU member states joined the

Barcelona Process. Cooperation on migration controls was one of the priorities of the dialogue.

Migration became an intergovernmental issue in 1997 with the signing of the Amsterdam

Treaty. The Amsterdam Treaty moved the issues of migration and asylum from the third to the

first pillar. Migration and asylum were always highly nationalised matters and Europeanization

of these issues was an important step as any changes adopted, such as externalisation were

harmonized vis-à-vis increased influence of EU institutions on the decision making process.

Transition period of five years saw EU member states sharing the legislative initiative with the

Commission, following that period the Commission gained monopoly over the decision making.

These developments marked a clear shift towards harmonized EU migration policy.

The Amsterdam Treaty established the areas of ‘freedom, security and justice’ (AFSJ) for

the EU which emphasised that “free movement of persons is assured in conjunction with

appropriate measures with respect to external border controls, asylum, immigration and the

prevention and combating of crime” (Treaty on European Union Art.2 as amended by the Treaty

of Amsterdam). Huysmans sees deepening securitisation in this development of (AFSJ):

“discourses and government technologies reifying immigrants, asylum-seekers, refugees and

foreigners as a dangerous challenge to society stability play a prominent role in connecting these

different issues’, facilitating the continued securitization of immigration” (2000:770).

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The first signs of securitisation of the immigration policy were becoming evident

complemented by the ideas of externalisation. The Amsterdam Treaty which entered into force

in 1999 mentioned externalisation, stating that EU members would engage in external migration

regulation in order to establish an area of freedom, security and justice within EU borders (Chou

2009:543). The European community removed the borders inside the EU and set out to

strengthen the borders of its periphery.

Treaty of Amsterdam brought in another important change, EC would be able to act as a

unitary and single actor in bi-lateral agreements with a third country as of 1999. Paoletti and

Pastore (2010) propose a term to describe cooperation between EU and third states or private

actors: ‘supralateral’5 relations.

The five-year Tampere programme 1999 was adopted in order to implement the

provisions of the Treaty of Amsterdam in the area of asylum and immigration. The ‘external

dimension’ of EU migration policy has been formally accepted at the Special European Council

on Justice and Home Affairs which took place in Tampere in October 1999. The Presidency

Conclusions stated that immigration and asylum as part of the justice and home affairs issues

should be integrated into implementation of other EU policies and activities, including external

relations (Boswell 2003:620).

The goals of the Tampere programme, however, were more than honourable in regards to

asylum and protection of refugees, it was defined as:

“The first set of legally-binding EU-level agreements on

asylum; temporary protection for persons displaced by conflicts, a

common understanding of refugee status and subsidiary protection,

minimum procedural guarantees, minimum conditions for the reception of

asylum seekers and a regulation on deciding which Member State is

5 The term ‘supralateral’ will further be used in this dissertation to describe cooperation of the EU with a state or private actor.

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responsible for assessing which asylum claim” (Migration Citizenship

Education 2011).

Tampere summit also concluded that EU member states were “committed to ensure the

absolute respect for the right to seek asylum by the full application of the Refugee Convention of

the UN (1951)” (Nazarski 2008:38). The main aspects of the Tampere Programme were: the

creation of a Common European Asylum System based on human rights, in particular the

Geneva Convention 1951 (Section II), the fair treatment of migrants (Section III), cooperation

with third countries on political, human rights and development issues (Section I), and increasing

the efficiency of the management of migration flows, including measures addressing illegal

immigration as part of a common return policy (Section IV) (Giuffre 2011:9).

In the meantime, cooperation with Third States on migration was becoming more and

more common, readmission agreements which will be discussed further in this dissertation were

becoming an inherent part of any cooperation treaty. At the Seville Council in 2002 Spanish

presidency even proposed penalising third counties that refused to collaborate on the issue of

migration by reducing their development assistance (DGExPo 2006:21).

Dublin Regulation (EC) No 343/2003 also known as Dublin II was signed in 2003. It

builds on the Dublin Agreement of the Former European Community (Dublin Convention)

signed in 1990. The objective of Dublin Regulation, as of Dublin Convention, is to decide which

country should deal with the asylum seeker after he or she lodges their asylum claim. It is a way

of disallowing ‘asylum shopping’, stopping the migrants from picking and choosing the most

favourable country to lodge their asylum claim or, indeed, lodging it in another state once a

Member State refuses them refugee status. However, the wish of migrants to lodge their claims

in one country rather that another is understandable even if they are genuine refugees. Denmark

and the Netherlands, for example, offer only a limited time span of protection for refugees from

the date of granting refugee status. This goes against UN 1951 Convention, which states that

refugee protection “should be limited only by the period of time during which protection is

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needed – something which is not known at the time at which asylum is requested” (Van Selm

2005:8). Many NGOs have criticised the Dublin convention as inherently unfair as it has been

put in place before complete harmonisation of migration laws in EU member states has been

achieved. Cases may result, in which a person entitled for international protection in one

Member State is not entitled to it in the state he or she is forced to apply in (Nazarski 2008:40).

Dublin Regulation, therefore, cannot function until total harmonisation of EU migration policies

has been achieved. The Parliament, in its resolution on the situation with refugee camps in Malta

in 2006, has also put the Dublin Convention in question stating that intolerable burden is placed

on the countries South and East of the EU where most migrants arrive.

In April 2004, the Council of the European Union adopted Council Directive 2004/83/EC

on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless

Persons as Refugees or as Persons who Otherwise Need International Protection and the Content

of the Protection Granted (Qualification Directive). The Directive seeks to harmonize the refugee

procedures across the European Union; it establishes two different categories for those in need of

international protection: refugee status and subsidiary protection. The goal of the Directive is to

ensure minimal protection standards across all Member States and create common criteria for

identification of bona fide refugees. A scholarly debate followed with certain political scientists

welcoming the Directive as an instrument to raise and equalize the standards in the EU member

states, others stated that a downward pull will result in equalization: meaning that states which

had previously upheld higher standards of refugee protection in accordance to their international

obligations, are now keeping their standards to the required minimum (Nessel 2009:645-646).

The United Nations Refugee Agency (UNHCR) and Amnesty International both asked in 2003

for the Qualification Directive to be improved as the proposal for it was “succumbing to the

lowest common denominator effect” (Brinkmann 2004:197).

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In addition the Qualification Directive introduced a list of “safe” third countries as a way of

reducing the number of refugees eligible for asylum in EU Member States. The list of safe

countries has a detrimental effect on the ability of migrants to claim asylum on individual basis.

Sanctions were introduced for private carriers that allow asylum seekers to board without the

required visa:

“Sanctioning private carriers for failing to adequately perform visa

inspections shifts the burden for determining who is in need of international

protection away from government officials, who are bound to uphold

international human rights laws and can be held accountable, onto private

individuals seeking to avoid monetary penalties. Such private individuals lack

the authority to grant protection and are untrained in refugee and asylum law”

(Nessel 2009:646-647).

The Hague Program was adopted at the Brussels European Council held in November 2004 and

was to operate in the period between 2005 and 2010. It had two important aims, one dealing with

harmonization of European migration policy with the final goal of creating common EU policy

on migration and asylum. The second phase of the Hague Program is directly related to the

question posed in this work as it deals with the external dimension of asylum and migration

(DGExPo 2006:5). The chapter in the Programme on the external dimension of asylum and

immigration describes the efforts that Member States are ready to devote to it. Security is placed

as the foremost issue and directly related to migration in general and externalisation of migration

policy in particular. It states that under the Hague Program, Member states will assist

cooperating third countries to “build border-control capacity, enhance document security and

tackle the problem of return” inter alia (EUR Lex 2006). One of the reasons has been the

increased number of tragic deaths which occurred of migrants trying to cross the sea to get to the

Southern shores of the EU. The other reason is the legislation prior to 2004 that mainly dealt

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with harmonization of EU policy within its borders and while that came to conclusion the

remaining issue which surfaced was keeping new migrants out (DGExPo 2006:6).

The Hague Program was, indeed, a large step towards ‘shared responsibility’ with

countries of origin and transit of migrants. It contains a “wide range of initiatives to build up a

“strong” return and readmission strategy” (Giuffre 2011:9). The cooperating countries would

not only be the places where certain border procedures, which were based in EU member states

prior, would take place but also these third countries will be held accountable for the success or

failure of stemming the immigration flow.

“In 2010, the existing tools of the Global Approach to Migration [adopted in 2005] were

increasingly applied globally to develop the external dimension of the EU's migration policy”

(European Commission 2011:11).

Lisbon Treaty has made the Charter of Fundamental Rights (CFR) a core part of EU

legislation and as a primary Union Law it requires adherence to it for legislation to be considered

valid and legal, it is a “regional supranational instrument” reinforcing the protection of migrants

and asylum seekers in international and European law (Gil-Bazo 2008:33). Thus, Lisbon Treaty

gives more power to the ECJ to decide whether human rights are protected in creating and

adopting EU law according to CFR (Giuffre 2011:14). However, the CFR is not a treaty per se as

it has not been ratified by the Member states, so while CFR will have the legal value equal to

that of a treaty, “its relation with other international human rights instruments is not governed by

the Vienna Convention” (Gli-Bazo 2008:35).

While division of pillars is simplified vis-à-vis Lisbon Treaty provision, it will not

change the practises and decision-making procedures for EU asylum and immigration policy

which existed prior (Chou 2009: 554). “Lisbon Treaty brings asylum and immigration together

with all matters on policy cooperation and on civil and criminal law into a shared competence,

entitled ‘Area of Freedom, Security and Justice’ (ASFJ) which was created by the Treaty of

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Amsterdam and constitutes now the Title V of Part III of the Treaty on the Functioning of the

EU (TFEU) (Article 67-89)” (Giuffre 2011:10).

Adopted in 2009, the Stockholm Programme 2010-14 opens up new possibilities for the

EU as a single actor in the international forum in the security issues, including migration (Monar

2010:24). Supralateral relations are becoming more and more common in migration and asylum

field.

The Stockholm programme also discusses a very important instrument used in the

externalisation of migration policy, it “portrays the readmission agreements as a building block

in EU migration management” (Giuffre 2011:12).

Readmission agreements – forced cooperation.

‘Readmission agreements’ were the first common-action instruments to be proposed by Member

States under European Community Law succeeding Treaty of Amsterdam which brought

migration and asylum issues under the control of the European community. The readmission

agreements are defined as:

“bi-lateral or multi-lateral treaties setting standards and procedures

indicating how return of irregular migrants is to be conducted. They

generally concern the return of own nationals or third country

nationals, means of establishing nationality, time limits for requests

for readmission, transit arrangements, exchange of personal data, costs

of transport” (Giuffre 2011:10).

The term ‘readmission’ is not used, however, in either Treaty establishing the European

Community (TEC) or the Treaty on the EU (TEU), therefore, Billet argues: “the competence to

conclude readmission agreements could be derived from a broad interpretation of the term

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‘repatriation’, which is meant to include also the readmission of migrants to transit countries”

(Billet 2010:60).

The 2002 European Council, in its Return Action Programme, defined return as “the

process of going back to one’s country of origin, transit, or another third country, including

preparation and implementation. It may be voluntary or enforced” (UNHCR Refworld 2002).

Readmission, on the other hand, is defined as “the act by a state accepting the re-entry of an

individual (own national, third country national, or stateless person) who has been found illegally

entering to, being present in, or residing in another state” (Giuffre 2011:2). In April 2002 the

Commission issued a Green Paper on return policy, which discussed the forced and assisted

repatriation of persons residing illegally in the European Union.

The Seville Council which took place in June 2002 saw the birth of the clause on the

compulsory inclusion of readmission agreements into any future cooperation with non-EU

countries (DGExPo 2006:7).

All readmission agreements reference Human Rights Conventions and contain non-

affection clauses6 but prior to 2005 no conventions were named explicitly, thus making the non-

affection clauses weak in nature. Only since the readmission agreement with Albania was signed

in 2005, are the 1951 Geneva Convention relating to the status of refugees, 1967 Protocol and

European Convention of Human Rights and Fundamental freedoms inter alia are mentioned

specifically (Billet 2010:72).

The case study which follows discusses externalisation cooperation and techniques on an

example of two countries, namely Italy and Libya and the effect of these practises on the asylum

seekers ability to seek protection in EU member states.

6 Non-affection clauses regulate the dominance of the agreement and other international obligations according to international law, including the importance of human rights protection.

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II - Case Study: Italy – Libya relations

“…Italy is keen to ‘push’ back the immigration line through the planned ‘reception’ and transit processing centres in the desert”

(Turner, Rincon and Sorensen in Sorensen 2006:92).

Italy and Libya relations have been ones of the most condemned for human rights

violations, not observing the non-refoulement principle and denying right to asylum, they have

also been ones of the most successful in stemming the migration flow through externalisation of

migration policy.

As a result of its geographical position, Italy has become a bridge between Europe and

Africa, Italy “is more exposed and vulnerable than other countries to any critical developments

in the political and economic situation of this area, so it is understandable that it occupies an

increasingly important position in Italian foreign policy” (Coraluzzo 2008:115). Italy possesses

7600 kilometres of coastline, and its islands of Sicily and Lampedusa are the main arrival points

for the African migrants attempting to enter EU by sea routes. Lampedusa, being conveniently

located just two hundred kilometres south of Sicily and three hundred kilometres north of Libya,

has become the main docking port for boats from Libya and Tunisia starting from the early 00s.

Emigration is not a new phenomenon for Italy, between 1865 and 1973, more than 25

million Italians left the country to work abroad, immigration, on the other hand, is quite a recent

development. Only in 1990 was the first piece of legislation, Martelli law dealing with migration,

passed. It aimed to attract attention of EU member states to Italy’s growing problem with

migrants and asked for certain ‘burden-sharing’ practices to be adopted (Turner, Rincon and

Sorensen in Sorensen 2006:88-89).

All EU member states of the Mediterranean basin have adopted a ‘pro-active diplomacy’

towards the Maghreb countries in order to share the burden of migration flows, France, Italy and

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Spain have been encouraging the European Union to cooperate with North African states while

concluding bi-lateral agreements on the issue of immigration and asylum. In 2003, during its

presidency, Italy presented a Programme of Measures to Combat Illegal Migration which

offered “police cooperation (including readmission agreements); reinforced border control; the

joint management of economic migration coupled with increased development aid” (Cassarino

2007:191) as possible solutions to migration issue.

In this chapter Italian choice of Libya as a partner for cooperation on externalization of

immigration policy is discussed and the effects of Italian-Libyan relations on asylum seekers and

their ability to gain protection in the EU are analysed.

Methodology

Inadequacy of statistics due to the informality and lack of transparency in agreements and

cooperation between Libya and Italy prevent us from being able to carry out accurate

quantitative analysis. Transparency is lacking in statistics presented by FRONTEX and by

governments of states involved in externalisation practises. The question posed by this

dissertation cannot be answered solely by the use of statistical data. Therefore, observation,

surveys and logical analysis of treaties and actions of the states mentioned in this case study,

namely Italy and Libya, become equally valuable in answering the question.

As the lack of statistical data prevents us from testing the hypothesis by purely

quantitative means, qualitative analysis is used to discuss effects of externalisation on asylum

seeking procedure taking into account the choice of cooperation partners by EU member states,

the agreements between Italy and Libya will be analysed and finally, the adherence of both

countries to the international human rights accords signed by them will be discussed with special

attention paid to the non-refoulement principle.

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This dissertation uses information from a number of surveys carried out by UNHCR and

Amnesty International and field research undertaken by political scientists such as Andrijasevic

working on the topic.

Statistics regarding the effect of externalisation policies on the number of refugees being

able to enter and claim asylum in the EU member states simply do not exist. However, we can

deduce the effects of border control mechanisms used in externalisation on the number of

refugees turned away from EU borders: FRONTEX water patrols, push backs, sanctions on

carriers and detention centres based in transit and countries of origin of migrants have all had a

measurable effect. This dissertation will use compiled data from FRONTEX annual risk reports

and Asylum application and first instance decisions data (EUROSTAT) in order to discover

trends in refugee entries to the EU in the period from 2008-2010 and influence which

externalisation policies had on these trends.

This dissertation, therefore, uses a mixture of quantitative and qualitative research

methods to answer the question posed, i.e. what effect does externalisation of immigration policy

have on the ability of migrants to lodge an asylum claim in one of the EU member states.

Choice of partner for cooperation on externalisation and type of agreements concluded.

The choice of country to cooperate with on externalisation policy depends on a number

of things. Firstly, its proximate position to the peripheral borders of the EU is of utmost

importance, secondly, its wish to cooperate with the European Union. If the country wants to

join the EU in the long run, it makes the cooperation easier, if it does not, it will usually require

payment in order to take part in externalisation. However, externalisation practises, in theory,

must work according to the international human rights agreements and European Union’s

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fundamental principle, that of the protection of human rights and freedoms. In order for human

rights of refugees to be protected a number of characteristics must be present in the cooperating

third state. Libya is analysed as a suitable partner for stemming illegal migration flow while

allowing human rights of refugees to be protected.

2.1 Cooperation with a pariah state

Italian colonial past in Libyan regions of Tripolitania and Cyrenaica from 1911 to 1947,

as well as geographical position of Libya made the two countries likely partners. In the mid-90s,

Libya was still a pariah state with embargos from both US and Europe. However, Italy initiated

dialogues to integrate Libya back into the international community on the initiative of the first

Prodi government as far back as 1996 while formally not violating the international sanctions

against Libya over the Lockerbie case (Coraluzzo 2008:121). Italo-Libyan Commission was

established in 1997 and resumed diplomatic relations between Italy and Libya. Result of the

Commission’s work was an agreement signed on the 4th of July 1998 by Foreign Minister Omar

al-Miuntasser and Lamberto Dini; “a historic joint document expressing Italian regret for the

suffering experienced by the Libyan people under colonialism and fascism” (Coraluzzo

2008:121).

Relations of Libya with Europe and the US improved slightly only a year later, following

its cooperation on the Lockerbie case in April 1999 which included the bombing of the Pan Am

flight 103 in 1988 over Scotland, Gaddafi handed over two suspected terrorists to the Scottish

tribunal set up in Holland. The release of five Bulgarian nurses which have been sentenced to

death for allegedly infecting children with HIV/AIDS was another step to making peace with the

international community. Further, cooperation of Libya with the US on the ‘war against terror’

and its disclosure of weapons programs in 2003 have led to further thawing of relations between

Libya and the west (Human Rights Watch 2006:11).

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Already in 2000, four years before the EU lengthy arms embargo was lifted, Italy and

Libya signed a cooperation treaty related to combating drugs, terrorism, organised crime and

undocumented migration. In 2004, the European Council finally removed “the restrictive

measures adopted by the EU in compliance with UN Resolutions 1992 and 1993, and remove[d]

the embargo on selling arms to Libya” (Coraluzzo 2008:123), this decision was welcomed by

Italy, which campaigned for reinforcing cooperation with Libya in the battle against illegal

immigration.

Still, it must be stated, that Libya to this day has no contractual relations with the EU,

which could be used as basis for cooperation on migration. It is not part of Barcelona process of

1999 and is not on the list of countries covered by the European Neighbourhood Policy which

makes it a strange choice of partner (DGExPo 2006:17). It also is not a signatory of the 1951 UN

Convention or the 1967 Protocol; therefore, it has little obligations in front of the international

community in regards to refugee rights protection.

While detention centres exist in Libya, refugee determination procedure does not take

place there. Libyan authorities have stated that the migrants can receive refugee status by making

a claim to Secretary of Foreign Affairs in the General People’s Congress in Libya or to a Libyan

embassy if they are abroad (Human Rights Watch 2006:20). However, no law establishing such

procedure exists and many migrants, who have made it to Europe and have been interviewed by

the Human Rights Watch or UNHCR, have stated that they do not attempt making a claim in

Libya as they feel it does not provide protection.

Libya also refuses to introduce asylum law or procedures and although there is a UNHCR

office in Tripoli, the government does not cooperate with it formally as it refused to sign an

Accord de Siège or Memorandum of Understanding with the agency (Human Rights Watch

2006:24). The UNHCR office grants “mandate status” and issues letters of attestation to those it

finds eligible for refugee status under the 1951 Convention and 1967 Protocol but Libyan

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authorities still subject letter-holders to arrest and deportation. Libyan government does not

differentiate officially between refugees, asylum seekers, and irregular migrants, therefore,

UNHCR letters are not recognised by them. UNHCR continues to register refugees in Tripoli,

“as of July 31, 2009, UNHCR Tripoli has registered 8,506 mandate refugees, of whom 3,635

were Palestinian long-term residents in Libya and 2,653 were Iraqis. The rest included 781

Sudanese, 597 Somalis, 451 Eritreans, 144 Liberians, and 245 others” (Human Rights Watch

2009:51).

Only in 2008, UNHCR was granted more access to detention centres by the Libyan

government following formalisation of relations with a Libyan NGO, the International

Organization for Peace, Care and Relief (IOPCR). However, according to migrants interviewed

by Human Rights Watch, only detention centres in Misrata are visited by UNHCR and its partner

NGOs (2009:48).

More than 20 Non-governmental organisations have called upon Italy and the EU not to

cooperate with Libya, stating that “ratification and the implementation of the international

conventions guaranteeing human rights protection, such as the Geneva Convention (…) are, in

this respect, an essential prerequisite” (DGExPo 2006:18). However, Libya refused to sign the

Geneva Convention or the Protocol and the cooperation continued nonetheless.

The reality demonstrates that the countries chosen for cooperation on migration issues are

not chosen based on their “capacity to allow access and protection for refugees, but because of

their geographical position and their ability to act as a buffer and protect Europe from the

undesirables” (DGExPo 2006:16). Unfortunately, choosing a cooperation partner with a

totalitarian government while effective at first might have unwelcome consequences as chapter

three of this dissertation will explore in more detail.

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2.2 Basing cooperation on material incentives or the hypocritical Pan-Africanism

Another important factor is for a third state to have an incentive to cooperate in

externalisation policy of the EU. For some new Eastern members of the EU, the base for

cooperation was a promise of their future EU membership. They were ready and willing to take

part in externalisation practises and guard the EU frontiers from unwanted migrants. For Libya

there was never a possibility of becoming an EU member, therefore the incentives for

cooperation were mostly material in the form of pay outs by Italy. However, while accepting the

pay outs, Gaddafi’s government has not always showed willingness to control migration flows.

Most of the time the expulsions of migrants seemed hypocritical, as Colonel Gaddafi continued

propagandising Pan-Africanism and inviting Sub-Saharan migrants to work in Libya at the same

time.

Although Libya was portrayed as a transit country in the EU, before the Arab Spring

swept Maghreb many migrants considered it their final destination, not ready to risk the

dangerous sea journey, jobs in Libya for Sub-Saharan Africans were in abundance. Following

the 1992 UN embargo and the deterioration of the relationship between Libya and the

neighbouring Arab states Gaddafi opened the door to Sub-Saharan migrants, “the CEN-SAD

(Community of Sahelian-Saharan States) was created with the aim of suppressing all obstacles to

African unity and, in particular, authorized the free circulation of persons” (CARIM 2011:13). It

was also linked to the pan-African solidarity which Colonel Gaddafi started to propagandise in

1998 abandoning the Pan-Arabism in its favour. ‘Africa for Africans’ has become an oft-used

slogan in his speeches. In Sirte on the 9th of September 1999, Gaddafi even voiced a vision for

the creation of ‘United States of Africa’, with a single army, currency and powerful leadership

(Paoletti 2011:221). Therefore, the cooperation to block migration into the EU and the

deportations of migrants from Libya seem less than sincere. In both 2004 and 2005, while mass

expulsions of African migrants were carried out in Libya, Gaddafi continued to state that

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“enormous Libyan projects necessitate a significant labour force from Africa” and “Libya is a

country belonging to all Africans” (Paoletti and Pastore 2010:10). Libyan government has taken

restrictive measures only in 2007, seemingly due to the pressure from the EU, and after many

years of welcoming Sub-Saharan workers it introduced visas for both Arabs and Africans and

enforced normative rules regarding labour and length of stay for guest workers, thus rendering a

large number of immigrants ‘illegal’(CARIM 2011:1). Still, the number of foreign nationals

living in Libya in the end of 2010 was estimated by the IOM to be 2.5 million, including “1

million Egyptians, 80,000 Pakistanis, 59,000 Sudanese, 63,000 Bangladeshis, 26,000 Filipinos,

10,500 Vietnamese and ‘a large population of Sub-Saharan Africans mainly from Niger, Chad,

Mali, Nigeria and Ghana’” (CARIM 2011:2).

The ‘Shared Responsibility’ pressure of the EU on Libya caused Gaddafi to adopt

drastic measures in dealing with immigrants. In the period 2003-2005 Libya deported around

140, 000 individuals to their countries of origin (Human Rights Watch 2006:52). Gaddafi did not

create centres for asylum seekers to make their claim but went a simpler route of expulsion, as

European Commission Mission stated in its report in 2004 “[T]he decision to return illegal

immigrants to their country of origin seems to be taken for groups of nationalities rather than

after having examined individual cases in detail” (Human Rights Watch 2006:52). No

determination procedure existed, simply when EU exerted more pressure on the Libyan

government to act in accordance to its obligations, Gaddafi ordered expulsions based on a similar

to ‘safe country of origin’ practise. Stemming the illegal flow of migrants seems as undesired by

Libyan government as allowing migrants to make a claim for refugee status. Therefore, the effect

of basing cooperation solely upon material incentives, without any checks or controls on the

actions of the third state, can be identified as negative for refugee human rights.

2.3 Informality of the agreements.

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None of the agreements between Libya and Italy have been made public, Italian

government has stated that disclosing the agreements would diminish their “success of

countering smuggling and trafficking networks responsible for organizing and profiting from

irregular migration from Libya into Italy” (Andrijasevic 2006:40). Yet for that very reason of

informality and lack of transparency, neither human right NGOs nor intergovernmental

organisations could have evaluated the accords.

An informal agreement has been signed between Italy and Libya in 2003, although the

contents of the pact have not been made public or submitted to the Italian Government for

approval, joint activities to control the migration flow have been undertaken since then

(Lutterbeck 2009:172). In 2003 alone, Italian government has spent EUR 5.5 million on

cooperation with Libya (Human Rights Watch 2006:101-102). Italian experts trained Libyan

police officers and a number of immigrant detention centres has been constructed in Libya with

Italian funding. Since 2003, Italy has been funding charter flights for the return of undocumented

immigrants from Libya to their countries of origin (Human Rights Watch 2006:102). Several

pilot schemes of interception at sea among them Ulysses, Triton and Neptune have been

conducted in 2003 and 2004 with cooperation of several EU Member states.

In 2005 Italian Minister of the Interior announced that Libya and Italy have reached yet

another “verbal agreement” to share responsibility for controlling undocumented migration and

in 2007 a pact was made by Italy and Libya to establish joint naval patrols along Libyan coast

(Lutterbeck 2009:172). Monitoring the participating states remains difficult. The problem of

accountability exists within readmission agreements, especially if those agreements are verbal

and informal, such as the agreements between Italy and Libya. This adds to the number of

concerns regarding the respect for the human rights according to European and international law,

and certainly, for the rights of people in need of protection (Cassarino 2007).

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In August 2008 Italy signed a Friendship pact with Libya, ‘The Treaty of Friendship,

Partnership and Cooperation between the Italian Republic and Great Socialist People’s Libyan

Arab Jamahiriya’. With this pact Italy agreed to pay $ 5 billion over the span of 20 years in

acknowledgement of deep wounds resulting from the Italian colonisation in Libya. The pact inter

alia called for increased cooperation in “fighting terrorism, organized crime, drug trafficking and

illegal immigration” (Human Rights Watch 2009:7). Both sides proclaimed that they would

respect ‘international legality’ and ‘the centrality of the United Nations’ (Paoletti and Pastore

2010:13). However, expulsions soon followed, in 2009 the practise of joint patrols and push

backs were initiated. The 2008 Friendship Pact between Italian republic and Great Socialist

People’s Libyan Arab Jamahiriya, only solidified the years of cooperation already existing on the

issue of migration control. The $5 billion compensation for the abuses committed during Italy’s

rule over Libya 1911-1943 was, described as an “investment” to stop irregular migration by a

Human Rights Watch report (2009:24).

2.4 Adherence to the international human rights accords signed by partners cooperating on

externalisation of migration.

If externalisation of immigration policy is to work in accordance with the international

treaties protecting the rights of refugees, both partners cooperating on the externalisation must

adhere to the international human rights accords which they have previously signed. This chapter

analyses the actions of both Italy and Libya in respect to international law and human rights

treaties which, in theory, should be respected. Expulsions from Lampedusa are discussed,

followed by a discussion of non-refoulement principle in relation to the push backs to Libya of

the boats intercepted in the Sicily channel.

Expulsions: Very few expulsions from Lampedusa seem to adhere to Italian and

international law regarding the safeguards which must be met such as legal counsel, interpreters,

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information to the persons to be expelled in the language they can understand and making them

aware of their right to appeal (Human rights Watch 2006:114). The determination of those

eligible for asylum is carried out on national rather than individual grounds, where Maghreb

nationals are expelled, while sub-Saharan Africans are transported to other centres in Italy where

they can, in theory, make their asylum claim. However, in reality, many Sub-Saharan migrants

are being expelled as well as North African citizens.

The European Parliament has adopted a resolution on Lampedusa in April 2005 in which

it strongly condemned the cooperation between Italy and Libya, stating that Libya practises

arbitrary arrest, detention and expulsion of migrants. The resolution also condemned the living

conditions, the determination process and the refusal of Italian government to allow UNHCR

access to the Lampedusa detention centre in March 2005 (EP 2005b). Ten NGOs called for the

European Commission to sanction Italy for: a) “Violation of the right of defence and of all

parties to be heard and hence the right to asylum as recognised by the Amsterdam treaty” and b)

“Violation of the prohibition of torture and inhuman or degrading treatment provided for in

article 4 of the European Charter of fundamental rights and article 3 of the European convention

for the protection of human rights and fundamental freedoms” (Andrijasevic 2006:38). The

CPTAs were denounced by a number of NGOs for the inadequacy of information provided to

migrants about the possibility of lodging an asylum claim and failure to carry out individual

examination on case-by-case basis through in-depth interviews prior to expulsion. Access to an

interpreter is often denied and determination procedure is often conducted on the basis of

migrant’s skin colour and facial characteristics (Andrijasevic 2009:152). The resolution on

Lampedusa also stated that the EU sees no avenues for cooperating with Libya on migration

management as it is not part of the Barcelona process.

The European Parliament declared that “Italian authorities have failed to meet their

international obligations by not ensuring that the lives of the people expelled by them are not

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threatened in the countries of origin” (European Parliament 2005b). The accusations were

answered by Pisanu, the Interior Minister, who replied that expulsions were carried out in

accordance with international and Italian law based on the informal agreement with Libya

(Cassarino 2007:193-194). However, it must be stated that while vocally condemning the

cooperation of Italy and Libya, EU was doing little to stop it. In the same year another, more

conciliatory message was sent by the European Parliament to Libya, head of the delegation to

Libya, Simon Busuttil stated “We want to send the Libyan authorities a very specific message:

we are not here to point the finger at them or to ask them to police Europe’s borders. We are here

to seek cooperation on a common problem” (European Parliament 2005). In July 2009, four

years after the Resolution on Lampedusa, Jacques Barrot, the Vice-President of the European

Commission, stated in an interview with radio station Europe 1 that “he would very shortly

suggest to Libya that it open reception offices for people seeking political asylum” (ECRE

2009).

Non-Refoulement: prescribes broadly that no refugee should be returned in any manner

whatsoever to any country where he or she would be at risk of persecution. It is a principle oft

quoted in international refugee law and it has the most direct effect on asylum seekers possibility

to enter and then lodge a claim in one of EU member states.

Italy is a signatory to 1951 UN Convention on the Status of Refugees which forbids

refoulement. However, in July 2003 Italy has issued a decree which enabled the Italian navy to

intercept and push back the ships carrying migrants as well as asylum seekers. In Italy it is the

Guardia di Finanza (customs police) rather than the coastguards which are responsible for

intercepting the boats, the agencies priority is to tackle smuggling rather than to rescue or

determine which migrants are eligible for refugee status (Human Rights Watch 2006:113). On

the 6th of May 2009, Italy became the first post-World War II state to “forcibly return boat

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migrants on the high seas without doing any screening whatsoever to determine whether any

passengers needed protection or were particularly vulnerable” (Human Rights Watch 2009:4).

The Italian government uses the term “respingimento” (push back) in order to avoid the

term “espulsione” which would require a district judge to validate each expulsion. The collective

expulsions were also classed as refusal of entry (respingimento alla frontiera) rather than

expulsion, thus, invoking Article 10 of Law 189/2002 the Italian authorities are able to render

legal its actions as “expulsion needs to be decided by the judge and prohibits entry into Italy for

ten years while a refusal of entry is an administrative measure that does not ban the migrant form

entering the Italian territory in the future” (Andrijasevic 2009:155). Italian government tries to

argue that the push backs taking place on high seas without determination procedure are allowed,

which is inherently flawed as the Convention does not make a distinction from where the

migrants are returned but to where “places where their lives or freedom would be threatened on

account of their race, religion, nationality, membership of a particular social group or political

opinion” (Human Rights Watch 2009:28).

UNHCR issued a statement in 2009, conveying its concerns over the effect that push

backs were having on ability of migrants to apply for asylum, it stated that Italy’s policy “in the

absence of adequate safeguards, can prevent access to asylum and undermines the principle of

non-refoulement” (UNHCR 2009). European Parliament has taken an ambiguous stand on the

matter of push backs and expulsions, in the Debates in Strasbourg Simon Busuttil stated that

while Italian Government has been criticised for promptly returning arriving migrants to Libya,

it will deter migrants from taking the dangerous journey across the Mediterranean and also

positively affect the human trafficking problem. Therefore, while human rights of migrants

should, certainly, be respected, the return system brings the end to the tragic deaths in the

Sicilian channel one step closer (European Parliament 2010).

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Libya is not a signatory to the 1951 UN Convention or the 1967 Protocol, however, the

refoulement of refugees, goes not only against certain international laws to which Libya is party

but against Libyan law itself; Libya’s Constitutional Proclamation from 1969 forbids extradition

of refugees, furthermore Law 20 of 1991 ‘On Enhancing Freedom’ states that Libya “supports

the oppressed and the defenders on the road to freedom and they should not abandon the

refugees and their protection” (Human Rights Watch 2006:3).

Libya is also a signatory to the Convention against Torture, ratified in 1989 and the OAU

Convention governing the specific aspects of refugee problems in Africa of 1969 (African

Refugee Convention), which expands upon the 1951 UN Convention on the definition of

refugee. African Refugee Convention widens the definition of refugee of that of 1951

Convention by including not only those that possess a “well-founded fear of being prosecuted”

but also the people who flee “external aggression, occupation, foreign domination or events

seriously disturbing public order in either part or the whole of his country” (1969:2). Article 2(3)

of the African Refugee Convention speaks of the obligation of non-refoulement: “No person

shall be subjected by a Member State to measures such as rejection at the frontier, return or

expulsion, which would compel him to return to or remain in a territory where his life, physical

integrity or liberty would be threatened”. Article 3 of the Convention against Torture states that

“No State Party shall expel, return (“refouler”) or extradite a person to another State where there

are substantial grounds for believing that he would be in danger of being subjected to torture”

(Convention Against Torture 1984).

Libya is also obliged to observe the International Covenant on Civil and Political Rights

(ICCPR), which in article 13 explicitly forbids arbitrary expulsion, and entitles migrants to an

individual decision on their expulsion (Human Rights Watch 2010). The Green Charter for

Human Rights of the Jamahiriyan Era adopted in June 1988 also bears a constitutional status in

Libya and calls for the respect and protection of human rights. Libyan government repeatedly

stated that International conventions and treaties signed by Libya take precedence over domestic

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legislation, with the exception of legislation which stems from shari’a law (Human Rights Watch

2006:85). However, there is no proof that this is the case especially when human rights treaties

are concerned.

Furthermore, the duty to aid those who are in danger at sea is an ancient maritime

obligation. Pursuant to the United Nations Convention on the Law of the Sea, the International

Convention for the Safety of Life at Sea of 1974 (SOLAS), the International Convention on

Maritime Search and Rescue of 1979 (SAR), and the 1958 Convention on the High Seas, there is

an explicit obligation to rescue persons in peril on the high seas. The immigration status of the

persons in danger plays no role, as does the number of persons at risk, or their mode of travel.

The shipmaster is responsible for the initial rescue. And although the duty to rescue is clear, it is

significantly less clear what duties are owed from that point on. Once the initial rescue has

occurred, international law is silent as to any ongoing obligation owed by the shipmaster (Nessel

2009:632). However, push backs of people in danger back to Maghreb could be qualified as in

violation of the aforementioned laws.

Finally, Gaddafi has recognised the importance of migration for the EU and Italy and this

has given him a weapon to use against the European Union. If he required more pay outs, money

was given, if he refused to sign the UN 1951 Convention, it was accepted. The dire

consequences of this will be discussed in more detail in chapter three.

2.5 Effect of externalisation policy and border control mechanisms on the number of refugee entries into the EU

Even with a general lack of statistical data on migration, one claim is quantitatively

testable. A common claim for countries involved in externalisation, especially if they are using

restrictive control mechanisms, is that they mostly affect the illegal entry of economic migrants.

This logic has been used by a number of governments when they did not carry our screening

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procedures on intercepted ships or before deportations and expulsions. Both Silvio Berlusconi

and the Minister of the Interior, Maroni have stated on a number of occasions that there are no

refugees on the boats arriving in Lampedusa from Africa but simply economic migrants that can

be and should be returned to the African shores. Just as Italy has done, Libya declared that all the

migrants it deports are economic migrants and do not require protection. In 2005 in an interview

with Human Rights Watch Sa’id Eribi Hafiana, Assistant Secretary of Foreign Liaison and

International Cooperation, stated “We do not have political refugees… the problem is Africans

who came in the framework of illegal immigration” (Human Rights Watch 2006:15). According

to UNHCR, there are, in fact, political refugees in Libya. In July 2004 Libya deported around

100 Eritreans which have been apprehended by the Eritrean government on arrival and held in

incommunicado detention (Amnesty International 2006). A refugee interviewed by the Human

Rights Watch in 2004 stated that a number of deportees were members of the Eritrean opposition

groups working from Sudan (Human Rights Watch 2006:58). Later that year a group of deported

Eritreans has hijacked a plane and landed it in Sudan where UNHCR recognised sixty of the

seventy-five deportees eligible for refugee status (Human Rights Watch 2006:3). A number of

detainees were also found to be Liberian by Human Rights Watch visiting the al-Fellah detention

centre, although Libyan authorities stated on numerous occasions that they would not deport

Liberians or Somalis (Human Rights Watch 2006:58). Deportation of true refugees is not

uncommon for both Italy and Libya. For our research on control and migration blocking

mechanisms, the important issue, therefore, is to determine the presence of bona fide refugees on

board of the intercepted ships, the effect of externalisation procedures on them and if the need

for determination procedures exists?

While the statements by Italian politicians paint one picture, the statistical data paints

another. Italy has quite a high rate of positive decisions on asylum applications. In fact,

aggregate data of positive decisions for asylum applications (Table 1) from a number of

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EUROSTAT reports shows that rate of recognition for refugees and protection on humanitarian

grounds to be relatively stable.

Year Total applications for asylum

Positive decisions at first instance Rate of Recognition

2008 20,225 9,740 48.16%2009 22,000 8,440 38.36%2010 11,325 4,305 38.01%

Table 1 Data compiled from EUROSTAT reports: Asylum applicants and First Instance decisions on Asylum applications (2011, 2010, 2009)

Furthermore, Trapani district of Sicily, which encompasses the Island of Lampedusa, had

a 78 percent approval rate for those claims submitted in the period from January to August 2008

(Human Rights Watch 2009:11). This demonstrates that the claims lodged by those who arrived

by sea route had a higher percentage of refugees present among them.

Therefore, one can assume that there is a stable percentage of, at least, circa 38% of bona

fide refugees out of the total amount of migrants which make a claim.

FRONTEX and Sea Patrols 2008-2010:

The need to control European borders is very contemporary, while the outer borders of

the EU were fortified starting in 1992, the first elements of EU border management model were

only laid out in the Council of the European Union’s Plan for the management of the external

borders adopted on 14th of June 2002 (Jeandesboz 2008:2). The securitisation of the migration

issue had a direct effect on the control of borders, which was enhanced vis-à-vis the use of

biometric and fingerprinting equipment, and by strengthening maritime surveillance with the

creation of agencies such as FRONTEX and expansion of their mandate and budget, the latter

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exponentially from 6 million Euros in 2005 to just under 90 million Euros in 2009 and 2010

(Taylor Nicholson 2011:6). FRONTEX was created in 2004 as defined by Regulation No.

2007/2004: “European agency for the management of operational cooperation at the external

borders of the Member States of the European Union” (Jeandesboz 2008:3). The agency is

dominated by ‘seconded national experts’, thus, once again, the national rather than humanitarian

interests are placed first. Rapid Border Intervention Teams (RABITs) were created by the

European Council Regulation EC No 863/2007.

EU Commission’s evaluation of the activities of FRONTEX for the years 2005-07

focuses solely on the technical issues, not taking into consideration the effects it has on

fundamental rights and freedoms of migrants, some of which could be refugees according to

international law. FRONTEX mandate does not contain an explicit reference to the respect of the

principle of non-refoulement. Although by definition, FRONTEX constitutes a part of the first

pillar of the EU, thus it is a Community body, and is responsible not only for adhering to the

fundamental values of the EU but also for expanding their reach as necessary (Jeandesboz

2008:15). Commission’s evaluation concluded, that ‘support for return operations’ is an effective

tool and well executed by FRONTEX. Therefore, FRONTEX remains a solely technical support

for EU Member states in their national pushback operations. So while the funding for

FRONTEX is increasing, the identification procedure is lacking in many pushback cases and

migrants are often denied “the possibility of lodging an asylum application except if the

interception took place beyond the territorial waters of those states” (Jeandesboz 2008:15).

In 2009, on June 18th, for the first time FRONTEX operation has resulted in a push back

of migrants to Libya, in an operation entitled Nautilus IV (Human Rights Watch 2009:37). The

yearly statistics used in this dissertation refer to the three years following the 2008 Italy-Libya

friendship agreement and the first instances of push backs, while 2011 is not taken into account

as the revolutions in the Maghreb region and the wave of migrants that resulted from it distort

the picture. Statistics are available from the annual Risk Analysis report released by FRONTEX

37 | P a g e

in 2011. The decrease in the amounts of detentions at the border of EU states due to push backs

and patrolling of the high seas by FRONTEX is shown in Figure 1.

7

While the number of entries by land remains roughly constant, the number of entries by

sea in 2010 fell by 73,200 entries from that in 2008. This is due inter alia to more stringent

controls by FRONTEX push backs and other externalisation practises. FRONTEX does not

conduct screening procedures on board of ships which it intercepts at seas, therefore, as we have

proven earlier the stable percentage of bona fide refugees present among the economic migrants

is also sent back to third states, which goes against the international human right accords to

which EU member states are signatory.

7 Fig. 1 Data taken from the FRONTEX Annual Risk Analysis (2011)

0

10000

20000

30000

40000

50000

60000

70000

2008 Q1

2008 Q2

2008 Q3

2008 Q4

2009 Q1

2009 Q2

2009 Q3

2009 Q4

2010 Q1

2010 Q2

2010 Q3

2010 Q4

Detections

Quarterly detection of illegal border crossings by land and sea.

Land

Sea

38 | P a g e

Table 2 shows the possible number of bona fide refugees present on intercepted ships

derived from the stable percentage of refugees present among asylum applicants.

YearTotal illegal

entries detected

Entries by sea

Entries by

land

Percentage of proven bona fide refugees

bona fide refugee

entries by sea

bona fiderefugee

entries by land

2008 157500 82500 75000 48.00% 39600 360002009 104000 43500 60500 38.00% 16530 229902010 104800 9300 95500 38.00% 3534 36290

Table 2

Using cross tab analysis we can construct a graph of the effect of new coordinated sea

patrols following the Italy-Libya pact of 2007 and FRONTEX push backs of 2008 on the number

of possible bona fide refugees turned away from the EU border. Fig. 2 is a constructed graph

which shows the correlation of the decrease in the illegal entries by sea routes and the number of

refugees possibly turned away without the chance of lodging an asylum claim and gaining

protection in one of the EU member states.

Fig. 2

0

5000

10000

15000

20000

25000

30000

35000

number of bona fide refugee possibly turned away due to new sea patrols as part of externalisation techniques

illegal entries detected by sea routes

39 | P a g e

We can assume that the decrease of migrants entering the EU has caused a similar

decrease in the ability of refugees to enter EU member states and seek protection. Therefore, the

externalisation policies and new border controls such as FRONTEX have a blocking effect on all

types of migration including that of refugees.

Lack of transparency is another problem which has an effect on the ability of migrants to

seek protection and asylum. Pushbacks of boats arriving to Spain from Mauritania and Senegal

were based on the bi-lateral agreements which have not been released to the public. Same goes

for the informal agreements between Libya and Italy. Therefore, FRONTEX has not only failed

to protect possible refugees on board of those ships but also participated in practises of secrecy,

which goes against fundamental values of the European Union (Jeandesboz 2008:16).

In fact, the condemned politics of Italian government had the required result. Arrivals to

Italy from Libya according to the Ministero dell’Interno fell by 90%, “between 5 May and 31

December 2009 3,185 migrants landed on Italian coasts, compared with 31,281 over the same

period in 2008” (Paoletti and Pastore 2011:4). However, as this chapter demonstrated, for the

asylum seekers the success rate of Italian government could prove detrimental in achieving

protection with the doors to EU firmly sealed. Italy-Libya situation, in fact, demonstrates a

central problem of such successful control mechanisms, instead of reducing the number of

migrants with valid claims for refugee status through developing the countries of origin, the

cooperation simply keeps them in “suspension, often in countries in which their rights may not

be protected. In this way, they may expose migrants and asylum seekers to further danger and

human rights violations, and offer fewer avenues for redress “ (Taylor Nicholson 2011:2).

III - Arab Spring swept Maghreb, migrant weapons

In 2011 the situation in Libya changed drastically. The wave of revolutions sweeping the

Maghreb states has reached Libya, protesters against Colonel Gaddafi’s longstanding totalitarian

40 | P a g e

regime took to the streets and the armed forces loyal to the government responded with violence.

The country descended into political turmoil. The agreements and cooperation on migration

between the two sides of the Mediterranean were suspended and FRONTEX operation Hermes

2011 was in full swing to protect the borders of the EU from illegal migrants (CARIM 2011:9).

The extraterritorial immigration controls that EU member states had in place in the south were

tested to the max and many were proving useless to stop the wave of migrants coming from the

violence-stricken Libya. By late March 2011, more than 25,000 people had arrived by boat on

the Italian island of Lampedusa. This caused a number of EU governments, especially France, to

call for reestablishment of EU’s internal borders to deal with the migrant influx. The Danish

centre-right government, Prime Minister Lars Loekke Rasmussen’s coalition, went as far as

closing its borders with Germany and Sweden and reintroducing stringent checks at its frontiers

(The New York Times 2011).

This dissertation demonstrates that the externalisation practises of EU member states and

their choice of partners for cooperation on the externalisation of EU immigration policy, the

money that they were ready to pay to the Libyan government and the human right offences

which they overlooked, had an important effect on the foreign relations of EU and Libya. It has

given Gaddafi a certain power to use against the EU when the revolution started.

In her book “Weapons of Mass Migration”, Greenhill proposes a theory of ‘coercive

migration’, arguing that migration could be used by weaker states as a power tool equal to army

or naval power; “costs are inflicted through the threat and use of human demographic bombs to

achieve political goals that would be utterly unattainable through military means” (2010:3).

Gaddafi’s tactics during the Libyan revolution seem to prove this theory and yet another negative

effect of externalisation of migration policy becomes evident.

Gaddafi has promised to "unleash an unprecedented wave of illegal immigration" on the

European Union. Indeed, an increase in number of boats arriving from Libya has seen a stark rise

41 | P a g e

and it soon became known to the EU officials that the Libyan armed forces were not preventing

but rather encouraging the migration to the EU (UNHCR 2011). IOM report also states that a

number of people were forced onto the boats in Tripoli heading to Europe. The soldiers have

fired their guns indirectly, but also migrants did not have to pay for their journey or paid only a

nominal fee (IOM 2011). This suggests, in agreement with Greenhill’s theory of ‘coercive

migration’, that Gaddafi might have been trying to use migration flow as a weapon against the

EU to wane its support for operations in support of the rebels. Spokesman for the Libyan

government, Moussa Ibrahim stated “Because of the NATO aggression against our country and

because our coastal border guard is being hit daily … we are unable to deal with this situation

and that is why Europe is being flooded with illegal immigration” (Thestar.com 2011).

The tactics used by Gaddafi succeeded, one of the fundamental rights of the EU that of

the free movement of persons has been put in question. A number of member states asked for

reinstating the internal borders. While for Italy, the invasion from the South that was discussed in

the media for a number of years was becoming reality. More than 40,000 migrants arrived in

Lampedusa from Libya following the Arab Spring unrests; these numbers include Sub-Saharan

migrants and Libyans, those escaping the fighting and those that have seen an opportunity in the

European Union. It has become difficult to distinguish between true refugees and economic

migrants due to the sheer number of migrants arriving every day.

It is the second large wave of migration which resulted from the Arab Spring; just a few

months ago more than 50,000 Tunisians entered the EU. Migrants were mostly heading to

France with a dream of jobs and sending remittances home. As Tunisian migrants have

discovered, unfortunately, the job market in crisis ridden Europe with 24 million unemployed is

not kind to illegal residents, for many the economic dream has not come true. Many are ready to

return home but this goes only for the economic migrants as for genuine refugees returning

cannot be an option. If EU does not cooperate and try to ease the pressure on Sothern States,

42 | P a g e

crime rates will inevitably go up and with this xenophobia among the southern European

population will grow. In Lampedusa angry mobs started gathering to try and prevent the boats

from docking with the beginning of the tourist season, an island which survives mostly on

tourism, Lampedusa is losing its income and xenophobia is rife. When an angry mob succeeded,

turning “one boat back (for the first time in Lampedusa's history), the Italian coastguard was

forced to create a landing area behind a line of armed police” (Lambert BBC 2011).

On one hand, the anger of Italians living on Lampedusa is understandable; the states do

have the right to control entry into their territory, residence and expulsion. On the other hand,

States must provide protection to those falling under their jurisdiction, as European Convention

of Human Rights states in Article 2 (in regards to rights to life), article 3 (prohibition of torture

and other inhuman or degrading treatments or penalties) and article 4 Protocol 4 (prohibition of

collective expulsions) (Nazarski 2008:38). EU Member States still widely range on the

qualification of the term ‘refugee’ although Article 1A(2) of the 1951 Geneva Refugee

Convention provides a definition generally accepted in the international law. However, the wave

of revolutions that swept Maghreb countries and the unrests in Libya specifically have made the

people escaping from there eligible to claim non-refoulement on humanitarian grounds if not

asylum, and those directly involved in the revolutionary fighting are refugees according to the

1951 UN Convention.

An investigation has been initiated in order to find the responsible for the deaths of boat

migrants in the waters between Libya and Italy. Parliamentary Assembly Council of Europe

(PACE’s) migration committee appointed Tineke Strik to carry out investigation and prepare a

report entitled “Lives lost in the Mediterranean sea: who is responsible?” (Council of Europe

2011a). On the 7th of September 2011 Strik visited Italy for a two day trip and interviewed

migrants who survived shipwrecks as well as officers of Italian coastguard units and NGO

representatives. At the end of her visit Mrs Strik stated “There is an obligation to help all people

43 | P a g e

in distress. If anyone did not live up to this responsibility and deliberately did not assist them,

they must not be allowed to get away with it” (Council of Europe 2011c).

While PACE’s inquiry is useful for identifying those responsible for death in sea, not

much is being done to prevent those deaths by recognising refugees in externalised centres and

aiding their arrival in Europe not by dangerous dinghies but by legal channels. An extraordinary

meeting of Justice and Home Affairs took place on the 12th of May 2011 on the issue of

migration in the south of the EU. The Commission stated, that it expects the Council to look “for

a more structured, comprehensive response to the challenges and opportunities of migration”

(EUROPA 2011). The meeting also aimed to discuss changes to be made to the FRONTEX

agency established in 2004.

“The proposals include reinforcing the legal framework to ensure full

respect of fundamental rights during FRONTEX activities and

enhancing the operational capacity of FRONTEX to support Member

States. With the new proposal, Member States would put more

equipment and more personnel at the Agency's disposal. FRONTEX

would be able to co-lead border patrols operations with EU Member

States or lease and buy its own assets (such as vessels or helicopters). It

would also be allowed to provide technical assistance to third countries

and deploy liaison officers in third countries” (EUROPA 2011).

It is evident, that the Maghreb revolutions and the wave of migration they caused have

attracted attention to the plight of sea migrants from Africa and the human right offences which

have been committed by the states involved in the externalisation of EU immigration policy to

the South of the EU borders. Only time will show if it will lead to improvement in the effect of

EU policy, and its implication by member states and cooperating third countries, on the refugees

seeking asylum in the European Union.

44 | P a g e

Conclusion

“Security and Human Rights: A Necessary but Difficult Conciliation”

(Billet 2010:71)

The tragic history of terrorist attacks carried out in the United States and the European

Union has added to the already emerging phenomenon of the securitisation of the issue of

migration. As this dissertation demonstrates, this in turn has led not only to stricter border

controls but to a policy of externalising the determination procedures vis-à-vis cooperation with

neighbouring third states. Externalisation of migration policy is a goal which has not yet been

achieved fully but looking at the steps taken in order to reach a higher degree of externalisation

one can identify the main effects it had on asylum seekers and their ability to apply for refugee

status within the EU.

Externalisation has been posed as a positive phenomenon for asylum seekers, bringing

the places where applications could be lodged closer to the areas of conflict, thus, diminishing

the need to take a dangerous, illegal trip across the Mediterranean. In reality, the effects of

externalisation on asylum seeking have shown to be mostly negative so far, at least when

externalisation to the South countries, which do not possess the incentive of EU membership, is

concerned.

Firstly, it was aimed at and succeeded in reducing the overall number of migrants, and

due to the lack of determination procedures, it equally reduced the number of refugees entering

the EU. Creation of such agencies as FRONTEX demonstrates the route that EU has chosen to

take; development of the countries in Africa mentioned in a number of treaties has been

neglected, while most resources are thrown on fortifying the outmost borders of the EU.

Another issue which arises is the varying migration policies and practises that exist in the

EU member states, as well as their level of development. Van Selm (2005) concludes that there

is, in fact, no refugee policy in the EU, at best European Union has an asylum policy, Nazarski

45 | P a g e

writes in 2008 that even asylum policy in Europe does not exist either: “States tend to treat

refugees as if they were irregular migrants and thus undesirable”(2008:39). As it seems, the

diminishing of illegal migration down to zero is not only a priority but also a benchmark of

success, narrow security principles increase surveillance and success has been measured by the

lowering of “the number of boats reaching Italian soil as opposed to a hypothetical breakthrough

in human-rights standards in Libya” (Paoletti and Pastore 2010:14). Italy provides a perfect

example treating all migrants as economic and refusing the asylum application procedure to a

great extent vis-à-vis interceptions at sea and externalisation to Libya. At the same time, the

agreements it has reached with Libya regarding migration prove that migration and asylum so far

remain in the domain ruled by nation states and EU while often condemning these relations for

human rights violations is not able or not wanting to prevent them.

Cooperation with states such as Libya on the issue of migration is inherently flawed, if

protecting human rights of refugees remains a part of the goal while combating illegal

immigration. A country which lacks asylum system could not be a possible protector of asylum

seekers. Unfortunately, EU member states, such as Italy, themselves have shown little adherence

to the UN 1951 Convention and other human rights treaties that it signed.

Lastly, the importance of migration for EU has created a weapon which can be used

against it, as was demonstrated by Gaddafi’s forces during the unrests in Libya in early 2011.

This has, once again, outlined the sad truth of migrants being used as ponds in the power struggle

with minimal incentive to protect refugees resulting from unrests.

This dissertation argues that just as a state should be held responsible when it sends a

person in its custody to a state that is known for human rights violations, so too must a state be

held responsible for human rights violations that occur as a result of outsourcing refugee

protection and the externalization of borders. The various international treaties should be

respected and while controlling the entry into its territory is a right of every sovereign state, the

46 | P a g e

rights of refugees for seeking protection and have one’s dignity respected should not be

forgotten.

RECCOMENDATIONS

This dissertation deals with the fragile balance present in externalisation practise debate

between curbing illegal immigration and allowing people truly in need of protection to lodge an

asylum claim and gain refugee status in one of the EU member states. This only holds true, of

course, if we take as an axiom that the EU member states, signatory to the UN Convention and

Protocol, only strive to curb illegal immigration and not all migration, thus, impeding migrants

from lodging an asylum claim.

So far externalisation has had a negative effect on the ability of migrants to lodge asylum

claims as it seems to be aimed solely at stopping the migration flows and lacks determination

mechanisms to recognise and provide necessary protection to the refugees escaping violence or

prosecution in Africa or any other troubled region of the world. Nonetheless, externalisation has

the potential to succeed in recognising refugees closer to their countries of origin without urging

them to undertake the dangerous voyage across the Mare Nostrum;

Comprehensive and transparent review of the externalisation practises and cooperation

with third states and private actors must be conducted by the EU and its Member States,

the international commitments to human rights protection must be taken into consideration.

The criteria for the choice of partners for cooperation on externalisation of immigration

policy need to be re-evaluated, the proximity of the third state is important but if this

partner is already known for tyrannical government, human rights violations and

totalitarian regime giving them the upper hand can lead to dire consequences as the Libyan

revolution has demonstrated.

47 | P a g e

FRONTEX is a very successful actor in externalisation policy and effective at curbing

illegal migration across the Mediterranean but the procedure to identify refugees on board

the ships is lacking. As quantitative analysis in this dissertation shows, the determination

procedure is needed in order to not turn away the bona fide refugees truly in need of

protection. If trained staff, interpreters and lawyers were present on board, a number of

people needing international protection would not become victims to refoulement. A

system of checks and balances, more transparency and accountability are needed for

FRONTEX operations.

Furthermore, interdiction policies and practices on the high seas or in the coastal waters of

transit and origin states must be assessed for cases of human rights violations. The PACE

report “Lives lost in the Mediterranean sea: who is responsible?” is a step in the right

direction, however, much more can be done.

Human rights protection mechanisms should be incorporated into all readmission and third-country

agreements, so that any individual returned to a country for asylum processing is guaranteed fair

and humane treatment.

Deportations of Sub-Saharan migrants carried out by Gaddafi were influenced, to a certain

extent, by the pressure from the European Union and not in the spirit of true Pan-

Africanism that Gaddafi claimed to support. It also went against the ECOWAS protocol on

the Free Movement of Persons signed in 1971. If EU pressure was aimed not only at

expulsions of illegal migrants but also at recognition of refugees, mass expulsions would

be less likely. This should be taken into account in future agreements, formal or informal.

Material incentives to curb illegal migration exist for countries cooperating with the

European Union on the issue of externalisation, yet no incentives exist for recognising

refugees. This causes a total block of all migrants rather than providing stimulus to put

determination procedures in place in third countries. A simple and yet agile and adaptable

system could be introduced; e.g. paying the cooperating third states for each refugee

48 | P a g e

recognised and deducting a certain amount for each economic migrant or refugee with fake

papers allowed into the EU. A system of checks and balances is needed for the initial time

of the functioning of the project but will become more relaxed as the time goes on. If a

similar system was in place in Libya, while not guaranteeing a functioning asylum system,

at least the refugees already recognised by the UNHCR would not have been deported.

The state of emergency with Maghreb revolutions calls for sharing the burden and

movement of certain number of migrants to Northern States of the EU. If instead of

cooperation, member states continue reintroducing internal borders, the countries such as

Italy and France are to experience increased crime rates as the hungry and hopeless

migrants descend into crime.

Development of the countries of origin of migrants remains the only long-term solution to

the problem of immigration. It calls for a long involvement in the countries before effects

would become visible but the migration problem cannot be solved with fences; stricter

border controls only urge migrants to find more dangerous routes and diversify crossing

points to enter the European Union. EU must widen its perspectives and pursue the long-

term solutions with more attention paid to economic, political and social causes of

migration. Cooperation with NGOs and countries of transit and origin of migrants in order

to develop education system, infrastructure and make these countries attractive for foreign

investment will achieve more to diminish the migration problem than any fence ever could.

49 | P a g e

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