This week aditus foundation, Jesuit Refugee Service Malta and Integra foundation filed three complaints in three different fora with respect to the situation of around 167 migrants currently being held aboard the private vessels Europa II and the Atlantis, just outside Malta’s territorial waters. The Maltese government chartered a number of private pleasure craft vessels to accommodate migrants rescued in Malta’s SAR zone in the period between the 28th and 29th April 2020 and 6th May 2020. The migrants were transferred from private and AFM vessels involved in the rescue to the chartered vessels and have remained there since the beginning of May.

UN Mechanisms

Two complaints were sent respectively to the UN Special Rapporteur on the Rights of Migrants and to the UN Working Group on Arbitrary Detention. Both procedures are UN Special Procedures which means they don’t operate on the basis of any treaty but on the basis of the Charter of the United Nations and, as such, have a broader scope. In this sense, they are not considered to be judicial bodies, but they have a strong political authority.

The UN Special Rapporteur on the Rights of Migrants is special rapporteur on the human rights of migrants and has the mandate to examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of this vulnerable group. Special rapporteurs are in charge of holding inquiries into violations and to intervene on specific issues or urgent situations.

The Working Group on Arbitrary Detention has as its mandate to investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments.

Legal considerations

In both complaints we highlighted that their situation is an urgent one in view of their rapidly deteriorating physical and psychological state. The complaints were based on the assertion that Malta’s actions breached a number of articles contained in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, in particular:

1. Right to be free from torture or to cruel, inhuman or degrading treatment or punishment
2. Right to liberty and security of the person
3. Right to be treated with respect for inherent dignity of the human person
4. Right to an effective remedy, and
5. Right to seek and to enjoy asylum from persecution.

In particular, we noted that the duration and the conditions on board the ferries, which are not adequate to host persons for a length of time on the high seas, amount to on-going de facto detention that is reaching the severity necessary for the situation to be considered as inhuman treatment. The reason for such detention remains unclear, if at all existent and it appears to have no time limitation and thus indefinite. As a result, the detention of such migrants cannot but be considered as arbitrary. Moreover, the decision to detain the migrants upon such vessels does not appear to have taken into consideration relevant factors on an individual basis, nor to have taken into consideration the physical and mental health effects and vulnerabilities of the persons concerned.

We furthermore noted that they have no access to adequate national remedies due to the fact that from the moment of their detention aboard the two vessels, the migrants have been denied access to UNHCR and other organisations. It remains impossible for them to seek recourse to the national legal system without such information and support. The migrants have no opportunity to demand reassessment, re-evaluation or access safeguards against unlawful and arbitrary detention.

In view of the above, we maintain that that the decision to keep migrants detained on private vessels, is unreasonable, unnecessary and disproportionate.

Lastly, we highlighted that the individuals aboard the vessels left their countries origin for various reasons, which reasons may include fear of persecution, violence, war or civil strife. In Libya, refugees are unable to secure protection for a number of reasons. Not only has Libya not ratified the 1951 Refugee Convention, but the State has not established a functioning asylum procedure to identify and protect refugees from return to their countries of origin. However, over 3 weeks from their interception and detention, no steps have been taken by Malta to register or process the asylum claims of the persons aboard. Thus, by denying access to territory to asylum-seekers, Malta is violating their fundamental right to seek and enjoy asylum in Malta.

European Commission for breaches of European Union Law

A complaint for breaches of European Union law was filed with the European Commission. The European Commission is the EU’s politically independent executive arm and in addition to proposing legislation, it is also tasked with ensuring that EU law is properly applied in all the Member States.

Any individual or group can file a complaint with European Commission about any law, administrative action, absence of measure or practice by a Member State that may be in breach of Union law. The Commission will then assess the complaint and will decide whether to initiate formal infringement procedure against the country. It can either decide not to initiate proceedings, or close proceedings if they feel that there are other mechanisms that are more appropriate. However, if the Commission feels that there is a breach it may take a country to the Court of Justice and if it wins the case, the country will have to take all actions to remedy the violations which may also include financial penalties.

Legal considerations

Although search and rescue operations remains a Member State exclusive competence regulated by international law, we argued that the current situation calls into play EU external border control and should be guided by the applicable relevant human rights law and EU acquis. It is clear that with Malta’s actions at sea in relation to these incidents it is engaging in EU external border control affecting the interests of the European Union.

Article 77(1)(b) of the Treaty on the Functioning of the European Union provides for the implementation of a common policy on the crossing of external borders. This has translated into a number of measures, primarily the Schengen Borders Code (SBC) which lays down common measures on border control at external borders that reflect the Schengen acquis. In this regard, we considered that Malta’s decision to place the groups of rescued persons on vessels just outside national and, by consequence, European Union territory, is unequivocally one of border surveillance, border check and border control as defined by the SBC.

Article 4 of the SBC lays down clearly that, in applying the Regulation, Member States shall act in full compliance with relevant Union law, relevant international law and obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. The provisions of the Refugee Convention and of the EU Charter of Fundamental Rights are therefore not of a merely indicative nature, but a binding one.

The moment SBC applies, effect must be given to the safeguard provisions in Article 4 of the Regulation, and to Articles 6, 18 and 47 of the Charter in particular. Firstly, Malta is exercising full control and authority over the individuals being kept on board the vessels. It is clear that this is not a mere restriction of movement for the purposes of border control but a deprivation of personal liberty contrary to Article 6 of the Charter. Secondly, we contended that the right to asylum, guaranteed under Article 18 of the Charter, would be rendered theoretical when border control and surveillance results in the prevention of asylum-seekers from physically accessing and exercising their rights. Lastly, the persons on board do not have access to legal counsel and do not have any access to an effective remedy for the rights that have been breached.