Monday

20th Nov 2017

Analysis

Italy's 'floating hotspot' idea to sink in legal waters

  • Migrants or asylum seekers cannot be deprived of their liberty. (Photo: Frontex)

A plan to process migrants in boats in the Mediterranean Sea in so-called floating hotspots will face big legal hurdles.

First proposed by Italy's interior minister Angelino Alfano in early May, it was not opposed by the European Commission.

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

  • Italian interior minister Angelino Alfano first proposed floating hotspots early May (Photo: consilium.europa.eu)

Both the Brussels executive and EU border agency Frontex are waiting for Rome to send an in-depth analysis on the legal and operational challenges it poses before possibly making a proposal.

Giulio di Blasi, the EU commission official who cooked up the original idea of land-based hotspots, has refused to comment.

But case law at the European Court of Human Rights in Strasbourg will most likely sink the idea of sea-based hotspots.

Operational details for the floating hotspots are scant.

Italy's year-long Mare Nostrum rescue operation in 2013-2014 had included on-board ID checks.

But the latest plan from Rome is set to include initial health, security and identity checks on anyone plucked from the sea before they are brought to shore for further processing.

Alfano had also said the boats would be equipped with fingerprinting machines and police officers. People would be separated into those likely to get asylum and others would be sent home, he said.

The big boats were likely to be moored near the Italian coastline, although the same legal rules would apply in international waters. Italy's laws apply onboard Italian boats. The same goes for all EU states.

But case law at the Strasbourg court on detention and quality of conditions on the boats will complicate matters.

Detention and bad conditions

First there is detention.

People cannot be deprived of their freedom of movement under article 5 of the European Convention of Human rights, even if for only two or three days.

In 2002, the commander of a French frigate was ordered to intercept a merchant ship near Cape Verde. The boat, which was registered in Cambodia, was hauling cocaine.

Once caught, its crew was confined to their quarters under military guard while tugged back to France.

Eight years later, the Grand Chamber at the Strasbourg court ruled that France had violated article 5 of the Convention by confining the crew on the boat. The Chamber said France had taken legal jurisdiction over the boat when they apprehended it. It meant article 5 applies.

Another case is now being discussed that involves a Syrian who is stuck in a transit zone at a Russian airport since September.

The Russians argue his freedom is merely restricted and that this is not a violation of article 5. They say he can freely can go back to Syria. His lawyers argue the transit zone is under Russian jurisdiction, which means the Syrian has his rights.

The Russians are likely to lose. In 1996 the Court ruled in favour of Somali defendants under similar circumstances at the Paris-Orly international zone.

It means any migrant or asylum seeker taken on board a boat in the Italian floating hotspot cannot be deprived of his or her liberty.

Given that a person cannot jump into the water and swim to shore, any argument that a boat is only a restriction - not a deprivation - of the freedom of movement would likely be shot down by the above two cases.

On land, conditions are already bad and it is unlikely standards will be higher on a boat, far away from public scrutiny.

Existing hotspots on the Greek islands, for example, quickly turned into de facto detention centres. Aid agencies like Medecins Sans Frontieres (MSF), the International Rescue Committee (IRC), the Norwegian Refugee Council and Save the Children pulled out in protest in March.

Meanwhile, police are arbitrarily separating people in Italian hotspots against asylum rules, according to the Association for Juridical Studies on Immigration.

"People are restricted, there is no real effective right to get information, and what we are seeing is that people are screened just on the basis of their country," Lorenzo Trucco, president of the Florence-based NGO, told this website on Wednesday (1 June).

The second big issue is conditions on the boat, especially for children and pregnant women.

That some 13,000 people were rescued in one week earlier this month suggests how big the task would be.

The Strasbourg court in another case ruled against Greece for detaining a 15-year old boy from Afghanistan.

Aside from depriving his rights to liberty, he was kept in squalid conditions before being released on to the street and made homeless.

The upshot for Italy

The costs involved in launching such a naval operation are likely to be very large.

But the financial impact for Italy would probably be offset by other bigger “political benefits”.

The EU's key asylum law, the Dublin regulation, in most cases rules that the country of an asylum seeker's first entry has to handle the entire application claim.

"If it is a joint-operation, then the flag-bearing nation would have to process the asylum claim as the first point of entry under Dublin rules," said Chiara Favilli, a professor of European law at Florence University.

Dublin, recognised as a failed policy, is being reformed.

Should the EU commission's latest proposal on Dublin make it through the EU's co-legislative process, the distribution process would become automatic.

Interview

EU asylum chief: the 'future' arrived in 2015

Jose Carreira, the European Asylum Support Office executive director, lays out his vision for an agency on the cusp of becoming much bigger and more powerful.

UN criticises EU policy in Libya as 'inhuman'

The EU's policy of helping the Libyan coast guard to return people plucked from the sea is "inhuman", says the UN's human rights chief, given that most end up in dire conditions.

EU seeks to shut down Libya sea route

EU leaders are aiming to reach a consensus on the Dublin asylum reforms by early next year, announced European Council chief Donald Tusk. But first, they want to shut down the Central Mediterranean route from Libya.

UN criticises EU policy in Libya as 'inhuman'

The EU's policy of helping the Libyan coast guard to return people plucked from the sea is "inhuman", says the UN's human rights chief, given that most end up in dire conditions.

Stakeholders' Highlights

  1. Dialogue PlatformErdogan's Most Vulnerable Victims: Women and Children
  2. UNICEFEuropean Parliament Marks World Children's Day by Launching Dialogue With Children
  3. European Jewish CongressAntisemitism in Europe Today: Is It Still a Threat to Free and Open Society?
  4. Counter BalanceNew Report: Juncker Plan Backs Billions in Fossil Fuels and Carbon-Heavy Infrastructure
  5. Nordic Council of MinistersNordic countries prioritise fossil fuel subsidy reform
  6. Mission of China to the EUNew era for China brings new opportunities to all
  7. ACCASmall and Medium Sized Practices Must 'Offer the Whole Package'
  8. UNICEFAhead of the African Union - EU Summit, Survey Highlights Impact of Conflict on Education
  9. Nordic Council of MinistersNordic Council Calls for Closer Co-Operation on Foreign Policy
  10. Swedish EnterprisesTrilogue Negotiations - Striking the Balance Between Transparency and Efficiency
  11. Access EuropeProspects for US-EU Relations Under the Trump Administration - 28 November 2017
  12. Nordic Council of MinistersSustainable Growth the Nordic Way: Climate Solutions for a Sustainable Future

Stakeholders' Highlights

  1. EU2017EEHow Data Fuels Estonia's Economy
  2. Mission of China to the EUChina and EU Step Up Water Management Cooperation
  3. CECEMachinery Industry Calls for Joint EU Approach to Develop Digital Construction Sector
  4. Nordic Council of MinistersMale Business Leaders Gather in Copenhagen to Advance Gender Equality
  5. EnelNo ETS Deal Means It Can Still Be Strengthened
  6. EU2017EEEstonia Anticipates More Digital Cooperation With Sweden
  7. Mission of China to the EUChina Launches Campaign to Protect IPR of Foreign Companies
  8. European Jewish CongressEJC Condemns Attacks on Ruta Vanagaite and the Shredding of Her Books in Lithuania
  9. Bio-Based IndustriesDiscover the Future of the Bio-Based Economy. Register Now for the BBI Stakeholder Forum!
  10. European Free AllianceWelcome Catalonia!
  11. UNICEFGrowing Number of Unaccompanied Refugee Children in Greece in Need of Shelter
  12. Counter BalanceNature Destruction Cannot Be Compensated For, Say NGOs