In European Waters

Jeremy Harding

The sad truth about the vessel that went down off the coast of Lampedusa last week is that there will be others like it, and the loss of life – nearly 300 dead or missing in this case – may well be as bad.

It’s tasteless to spin the event as an argument against borders, or to use it to make the opposite case for fully militarised frontiers with forward arrangements of the kind EU states have already tried out in ‘sender countries’ (Gaddafi’s Libya, Mauritania). The fact remains that borders are places of contention; and rights are a scarce resource which people will risk their lives to access. The EU is a champion of universal rights; it would like to see its rights regime exported to all corners of the earth, but Brussels is a long way from Mogadishu or Asmara.

All the same, once an abundance of rights is announced, it’s hard for people outside a rights-effective zone to sit and wait for them to drift their way. You don’t, if your family is hungry, wait for food to arrive on a truck flying an NGO ensign unless you’re clear in your mind that you have no choice. ‘Choice’ is another resource in short supply in many parts of the world.

In Eritrea, where many of the people who drowned off Lampedusa lived, there has been no change in the presidency since independence in 1993. In fact, Isaias Afewerki has been in charge for 35 years, having come to power as head of the main Eritrean liberation movement in 1978. Amnesty International describes twenty years of ‘extreme action against actual and perceived critics’: the regime ‘has arbitrarily arrested and detained people in order to crush all opposition, to silence all dissent, and to punish anyone who refuses to comply with the repressive system. As a result, the country’s prisons are filled with thousands of prisoners of conscience and political prisoners.’ In Somalia, where other people on the boat are known to have lived, civilians in 'government’-held areas are at risk from targeted killings and executions, arbitrary detention and Islamist attacks by al-Shabab. In al-Shabab areas, they are at risk from press gangs, beheadings, forced marriages and attacks on schools. In the de facto statelet of Somaliland, Human Rights Watch reports, on 17 May 2012 a military court sentenced 17 civilians to death.

One EU solution to entry on boats involves a pan-European border-surveillance initiative known as Eurosur, mooted in 2008 and coming on apace: fully integrated data sharing between member states and eventually ‘a common pre-frontier intelligence picture’ which, according to Frontex, the common-border management agency, ‘is relevant for the prevention of illegal migration and cross-border crime’. In the words of the Commission, the main purpose of Eurosur is to reduce unauthorised migration. Objective no. 2 is ‘saving more lives at sea’. Eurosur will involve more satellite information gathering and the use of drones. So spotting a boat in trouble will be a piece of cake.

But there are questions. Will satellite and drone data protect ‘boat people’ any better than the unnamed Nato aircraft carrier and military helicopter that ignored a boat in distress, bound from Libya for Lampedusa in 2011, and left sixty people to die of thirst and hunger? How, when all these ‘pre-border’ forward positions are in place, will it not become harder to claim asylum in Europe, unless part of the common border project involves the creation of safe corridors for desperate people? Isn't the Eurosur deterrence/life-saving system a policy to choke off asylum routes before people even get to hitch up their trousers and wade onto a boat?

The EU is now now in the curious position of trying to save lives by barring non-Europeans not only from the rights it cloaks in universal values yet confines to residents only, but also from the 1951 Refugee Convention, which has no local delimitation and qualifies the sovereign control of borders in minor but crucial ways that favour asylum seekers. So here's another question, for stewards and advocates of rights: is the equilibrium of a rights ecology better maintained by quarantined environments – rights reserves, as it were – or open, ‘natural’ access? Europeans appear to have made up their minds: we are ready to blur our Convention obligations in the name of saving lives at sea.

What we’re not prepared to do for now is reconsider the so-called Dublin II regulation: in simple terms a requirement that asylum claims be dealt with by the member state in which the applicant entered the EU. In theory Italy should be overwhelmed by asylum applications. In practice thousands of asylum seekers who first landed there make their way elsewhere in Europe to lodge an asylum claim and hope that things will go their way, even when it turns out that Eurodac already has a record of their fingerprints, taken in Italy. Increasingly the return of asylum seekers to first countries has been challenged by national courts, and Italy is not a major receiver of asylum applications. In 2012 it ranked sixth, after Germany, France, Sweden, Belgium, Britain and Austria. Nevertheless it’s at a disadvantage under the current arrangement. Italy’s call for a ‘European’ response to boats in the Mediterranean, reiterated after these drownings, would – if it were heeded – mean widespread non-enforcement of the Dublin regulation. (Outright abolition is too much to hope for.)

The CNRS immigration specialist Patrick Weil has suggested ‘floating borders’ on the EU’s maritime frontiers – roughly 48,000 km – where Frontex and Eurosur would work closely with European NGOs and rights-friendly monitors, deployed to make sure asylum seekers in distress weren’t returned to their misery (and in some cases deaths) because their lives were saved in European waters. But try selling that to Ukip or the Front National.