European Asylum after the Lampedusa Tragedy

Between Repression and Paternalism: European Asylum and Immigration Policy after the Lampedusa Tragedy
by Javier de Lucas for Critical Legal Thinking
14 December 2013 (original post)

After ships car­rying hun­dreds of refugees sank off the Italian coast re­cently, we must de­mand a change in asylum and im­mig­ra­tion policies or sur­render to the logic of barbarism.

Crocodile Tears

In the space of just over a week the world watched in as­ton­ish­ment as two ships sank off the Italian coast, giving rise to stag­gering death-​tolls (359 on the 3^rd of October, more than 50 on the 11^th) and various ex­pres­sions of grief. Among the mourners were those dir­ectly re­spons­ible for asylum and im­mig­ra­tion policy and its legal tools within both Italy and the EU, who trav­elled to the is­land to offer their con­dol­ences and vowed never to forget the hun­dreds of coffins heaped on the shore. However, these in­di­viduals who, on the one hand, pro­mote in­sti­tu­tional xeno­phobia and ra­cism through the con­struc­tion of walls and use of gun­boat sur­veil­lance,¹ but have no trouble shed­ding a tear for the dead when the cam­eras are on, rep­resent a hy­po­crisy which has now be­come unbearable.

My first pro­posal is that we do not let ourselves be de­ceived by these cro­codile tears which in­sult both the vic­tims’ dig­nity and our own.² The real issue is how these deaths re­late to the asylum and im­mig­ra­tion policies of the EU and its member states. We must not ac­cept these re­ac­tions which treat the deaths as if they were the result of nat­ural causes or some cruel twist of fate. The in­creasing ex­as­per­a­tion and out­rage that over­whelm European cit­izens who help­lessly bear wit­ness to these cata­strophes does not arise from a sense of power­less­ness in the face of tragic yet in­ev­it­able “nat­ural” dis­asters. These deaths are rather murders whose per­pet­rators who cannot go un­pun­ished. Our struggle is one of im­pot­ence against impunity.

It is my be­lief that there is a causal link between these mor­tal­ities and the per­sist­ence of a policy based on a fil­tra­tion system (only enough in­di­viduals are al­lowed to enter to sat­isfy the avail­able and re­quired jobs and not a single more, while those who ‘slip through’ are im­me­di­ately thrown out) com­bined with an ob­ses­sion which re­duces in prac­tice all im­mig­ra­tion policy to a ‘struggle against il­legal im­mig­ra­tion’ and ig­nores the real causes of mi­gra­tion. Because these deaths are not the first. We need only con­sider that from 1990 to the present, more than 8,000 corpses have reached the shores and sur­rounding wa­ters of Lampedusa and the most re­li­able sources es­timate the figure to be over 17,000 in the last ten years across Europe.³ Let us not forget that in the ship­wreck of the 3^rd of October of 2013, the greatest dis­aster to have hit the shores of Southern Europe, the number of vic­tims rose to 500 men, women (some of whom were preg­nant) and chil­dren, the ma­jority of whom, ex­cept those of Syrian origin, had trav­eled more than 4000km in an at­tempt to flee the poverty brought about by the con­flict in Somali and the to­tal­it­arian re­gime in Eritrea. Paradoxically, the sheer mag­nitude of this tragedy placed the bar too high for sub­sequent ship­wrecks, the first just over a week later, to at­tract media attention.

There will al­ways be a voice of realism re­minding us that the re­spons­ib­ility for these tra­gedies falls not on the EU or the West, but primarily on the re­gimes and coun­tries which force these people to live in misery and hunger, without basic rights or life ex­pect­ancy. However, I re­fuse to ac­cept that our an­swer to this new com­munity of emig­rants from Eritrea, Somalia and Syria, people who live in an Anabasis like that de­scribed by Quirico, is simply ‘Try else­where, we already do more than our bit to sup­port the co­oper­a­tion and de­vel­op­ment pro­gram.’ We cannot ig­nore the shame that falls upon us, we who pride ourselves on the values of the EU; on the guar­antee and de­fense of human rights and demo­cracy yet forget those of others when they turn to us. But how can we de­liver justice? Is there a pos­sible al­tern­ative to cur­rent asylum and im­mig­ra­tion policy? Do we have to change its legal instruments?

Considering the issue in legal terms: one omis­sion and two sophistries

I would like to high­light one ser­ious omis­sion and two mis­ap­pre­hen­sions, or worse soph­is­tries, which in my opinion pose a bar­rier to ac­count­ab­ility on im­mig­ra­tion is­sues. They hamper cur­rent de­bate and, as in Anderson’s par­able, provide a new set of clothes for these naked politi­cians, along with no small number of media sources.

It is this omis­sion that al­lows us to con­tinue split­ting hairs over who is re­spons­ible, whether it is the EU, Italy, Malta, the fish­ermen, or the is­landers who should act. No. It must be made clear that all those who fail to as­sist the vic­tims are crim­inals through their vi­ol­a­tion of the law. If those cit­izens who break the law are deemed crim­inals so too then should those politi­cians be­longing to the EU or its member states who have breached its reg­u­la­tions. And the of­fenses of those who pre­vent or­dinary cit­izens from ad­hering to the law are all the more serious.

This is the real issue. No more talk of hu­manity, piety and solid­arity. We are dealing with a legal of­fense of the first order that de­mands ac­count­ab­ility and ap­pro­priate sanc­tions. This is es­sen­tial if we are to stop the poison of im­punity and pop­ular dis­il­lu­sion­ment spread by this tragedy be­cause nothing can be done and media at­ten­tion shifts as soon as the next dis­aster sur­passes a death-​toll of 350.

It must be made clear that it is a matter of crimin­ality, of of­fences which de­mand pun­ish­ment be­cause non-​assistance to a person in danger at the very least vi­ol­ates a cur­rent legal standard. Indeed, through the re­pressive con­trol ex­erted by Frontex and states such as Italy, Malta and Spain, the EU in its re­ac­tion to these ship­wrecks ap­pears to have re­peatedly for­gotten the legal duty to rescue en­shrined in the oldest laws of the sea, basic common laws which for ex­ample over­rule the Fini-​Bossi law; and today by com­plex treaties of in­ter­na­tional law of the sea such as the 1982 Montego Bay Convention on the Law of the Sea and the SAR and SOLAS Conventions.

The con­tinual dis­regard of these ob­lig­a­tions, which has been largely con­cealed by the tone of the media cov­erage through its em­phasis on the most en­ga­ging ‘hu­man­it­arian’ and ‘tragic’ di­men­sions of the in­cident, is sup­ported by two soph­isms. The first of these is the in­sist­ence on re­fer­ring to ‘the tragedy of im­mig­ra­tion’. No. In large part, the vic­tims of these ship­wrecks are refugees be­cause they are fleeing from failed states, civil wars and con­di­tions which put their human rights at risk, as is the case in Eritrea, Somalia, Syria or Mali. It could soon again be Libya, or ter­ri­fy­ingly even Tunisia or Egypt. And what about Eritrea? We need only read the re­ports pub­lished by The Economist, such as ‘Eritrea and its emig­rants: Why they leave’ on the ar­rival of Eritreans to Lampedusa or those map­ping the polit­ical evol­u­tion of the country such as ‘Eritrea: A State of Siege’ or ‘Eritrea: Robocall re­volu­tion’ which clearly out­line the reasons com­pel­ling hun­dreds of thou­sands of Eritreans to leave. Many of them fled to non-​European zones such as the 125,000 who trav­eled to Sudan, the 87000 to Ethiopia or the 40,000 to Israel. From this former Italian colony they have also set out for Lampedusa in the hope of es­caping a country which has now trans­formed into a con­cen­tra­tion camp worse than North Korea. Thus refugees, like those ar­riving from Syria, are an in­creas­ingly im­portant contingent.

Whether they are im­mig­rants or refugees is not a trivial dis­tinc­tion. Of course the ser­i­ous­ness of the tragedy changes de­pending on which group is in­volved. However, it is this am­bi­guity which re­veals the fun­da­mental pre­ju­dice upon which im­mig­ra­tion and asylum policies are founded. Indeed, of­fi­cial doc­trine con­siders im­mig­rants to be eco­nom­ic­ally mo­tiv­ated as their move­ments are primarily dic­tated by work reasons. Refugees on the other hand are con­sidered to have been forced to leave their coun­tries as a result of polit­ical per­se­cu­tion. As a result, the EU and the ma­jority of its member states have tried to reg­u­late the entry and so­journ of the former group ac­cording to a cost/​benefit eval­u­ation, fol­lowing what has come to be known as a communicating-​vessels model. According to this system, pre­cisely enough will be al­lowed enter that will sat­isfy the de­mands of the market and prove prof­it­able but not a single more, a per­fect bal­ance must be main­tained. Refugees how­ever are viewed solely as a fin­an­cial burden and policies have in­creas­ingly re­stricted eli­gib­ility for asylum ap­plic­a­tions within the EU. These in­di­viduals are simply not leg­ally able to enter our Paradise. We have made it im­possible for them and their only op­tion is to try and reach the border by whatever means pos­sible. And even those which do ar­rive we do not allow them to show it (lit they are not al­lowed present them­selves as such) they are locked up in camps under in­hu­mane con­di­tions like those seen in Lampedusa and treated as il­legal im­mig­rants that face fines of up to €4000 and expulsion.

In both cases, the EU main­tains con­trol and vi­gil­ance as its highest pri­ority. This is the role of FRONTEX which co­ordin­ates the re­in­force­ment and even re­lo­ca­tion of bor­ders to third coun­tries des­pite their du­bious human rights re­cords such as Morocco and Lybia. As a result, ef­forts are fo­cused on con­trolling il­legal im­mig­ra­tion and its net­works, as well as pre­venting the misuse of asylum pro­ced­ures by those who are ‘just im­mig­rants’. The closure and re­in­force­ment of these bor­ders (Cueta, Melilla, Malta, Sicily and its sur­rounding is­lands or Evros and the is­lands of the Aegean Sea) res­ults in the rise in il­legal jour­neys and changes of route. The ma­jority of refugees today travel an av­erage of 4,000km to reach the same ports where crowds of im­mig­rants pre­pare to make the leap. And a sig­ni­ficant pro­por­tion (al­most 20,000 in the last 10 years ac­cording to the Libération re­port) die in the at­tempt. The twin cata­strophes at Lampedusa are just an­other two examples.

This re­veals the second soph­istry pro­duced by those who sug­gest that the issue is a lack of hu­man­it­ari­anism or al­truism and claim that our ca­pa­city for solid­arity and gen­er­osity is weakened in times of crisis. They in­sist that Europe (Italy and Spain) cannot carry the weight of the world’s misery on its shoulders and that we already do enough. But this is simply un­true. Not only are we guilty of failing to save lives, which is our most fun­da­mental duty, but in the case of refugees we are talking about the vi­ol­a­tion of spe­cific legal ob­lig­a­tions which should carry sig­ni­ficant legal consequences.

We must re­member that the EU and its member states have very real legal ob­lig­a­tions to­wards those seeking asylum and must be held ac­count­able should they fail to fulfill them. These re­spons­ib­il­ities were ori­gin­ally set out in the International Covenant on Civil and Political Rights (see art­icles 5 and 6), such as the prin­ciple of non re­foule­ment, the duty to not re­ject those who re­quest asylum as stated in art­icle 33.1 of the United Nations Convention re­lating to the Status of Refugees from the 28^th of July 1951 fol­lowed by the Protocol of the 1^st January 1967 which lead to the Advisory Opinion on the Extraterritorial Application of Non-​Refoulement Obligations under the 1951 Convention re­lating to the Status of Refugees and its 1967 Protocol. If any more evid­ence was needed, we may also note that this in­fringe­ment also breaches the pro­vi­sions of art­icle 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the 10^th December, 1984.

In the case of the refugees fleeing Eritrea and Somalia, the EU has not even con­sidered the es­tab­lish­ment of hu­man­it­arian cor­ridors or rescue op­er­a­tions in the Mediterranean beyond the Mare Nostrum op­er­a­tion funded by the Letta gov­ern­ment. Similarly, the ques­tion of im­mig­ra­tion routes which cur­rently pass through central Africa and re­cently res­ulted in a hun­dred deaths in the desert of Northern Mali, still goes unanswered.

It is the duty of us, the cit­izens, to de­clare that the states which main­tain these asylum and im­mig­ra­tion policies do not de­serve the title of demo­cracy or even to be con­sidered law-​abiding states as they fail to re­spect the basic human rights which are the very core of the law. As they have rat­i­fied and in­cor­por­ated the in­ter­na­tional con­ven­tions on refugees and on the laws of the sea into do­mestic law, their vi­ol­a­tion of their own laws is a crime for which they must be held ac­count­able. If these il­legal acts are to be stopped we must de­mand a change in asylum and im­mig­ra­tion policies and ac­cord­ingly as­sess the agendas pro­posed at the next European elec­tions. Otherwise we are sur­ren­dering to a logic of bar­barism, and we will be the savages.

Javier de Lucas is Pro­fessor of Philo­sophy of Law and Polit­ical Philo­sophy at the Human Rights Insti­tute, Uni­ver­sity of Valencia.

Translated by Lucy O’Sullivan