The most dangerous migration route in the world is only gaining popularity.
Nearly two hundred migrants capsized in a rubber dingy in the Mediterranean. [1]
In June 2023, a boat overflowing with migrant refugees attempting to reach the shores of Greece capsized in Greek waters, causing hundreds of deaths and prompting an increase in attention towards an ongoing crisis.[2] This event was the most catastrophic in contemporary history, adding to an already mountainous and devastating number of migrant deaths at sea–a number that is only trending upward.[3] In recent years, an increasingly large number of migrant deaths at sea have been the result migrants attempting to reach the European Union (EU). Many of these deaths are due to EU policies regarding refugee migrants approaching the boarders of member nations.[4] The number of persons fleeing violence and persecution, and thus seeking safe haven through migration, has drastically increased since the turn of the century. After making the treacherous journey, many of these migrants have been turned away upon arrival, if they arrive at all.[5] Due to this ongoing and ever-increasing crisis, the United Nations (UN) has called for decisive action by the EU to mitigate the loss of life.[6]
Attempting to address the issue previously, the UN held a Refugee Convention in 1951 to determine the responsibilities of UN member nations as to these persons.[7] The Convention prompted the enactment of several laws, including one establishing a duty to rescue migrants at sea within member nations’ waters.[8] These laws became legally binding on the EU upon the Convention’s ratification, making this “Duty to Rescue” clause legally binding on all EU nations.[9] In modern times, the 1951 Charter has become obsolete as a result of political instability and violence on an extreme scale leading to unprecedented mass migration patterns. This development has prompted the UN Commissioner of Refugees to call for a change: a universal method of establishing refugee determination and specified responsibilities to persons within this group. However, the EU has failed to adopt this policy.[10]
Instead, most EU states have taken drastic measures to close their borders to incoming migrants arriving by sea.[11] The EU has adopted a process for externalizing their borders via FRONTEX (a border guard agency), which intercepts and repatriates migrants caught at sea attempting to reach countries such as Italy, Malta, Greece, or the Spanish Canary Islands.[12] Additionally, the EU is proactively sending forces directly into refugee-sending nations to prevent the citizens from fleeing to EU member states.[13] In a joint effort to reduce the flow of migration from Africa by boat, eight EU member states collaborated in sending vessels into African water space to “protect” the popular route traveled by migrants; the operation, led by Spain, was called “Operacion Hera II”. In this operation, and similar ones deployed since, FROTEX uses aggressive tactics to intercept and repatriate migrants while still in their country of origin, or the water space thereof.[14] In its current form, the EU has only codified nominal protections for refugees seeking safe haven, instead opting to deflect unwanted migration onto neighboring non-member countries or return refugees to their country of origin.[15]
The EU, as a powerful and longstanding member of the UN, is obligated to adhere to UN laws to a much higher degree than their current performance.[16] As displayed by the EU’s disregard for the UN’s guidance on the matter, the current form of international law and policy concerning refugees, asylum seekers, and migrants needs immediate and significant improvement.[17] Under the current system, members of these migrant groups have little to no international protection, and those neglecting them further must face accountability.[18]
A potential solution would be to implement a “Displaced Person” category of protection under international law.[19] A “Displaced Person” is defined in the language of Article I of the UN Charter as one whose “flight threatens international peace and security.” In accordance with that definition, the proposal to adopt displaced person protection under the 1951 Refugee Convention would streamline protection of all persons fleeing countries in substantial risk of harm.[20] An expansion in international protection through the adopting of new international agreements, in combination with burden sharing by states, would provide the support necessary for a legal framework in humanitarian aid, of which so many are in desperate need.[21]
[1] Santi Palacios, photograph of migrants stranded in the Mediterranean, in Andrew Katz, Eyewitness to A Harrowing Rescue on The Mediterranean, Time, https://time.com/migrant-rescue-libya-mediterranean/ (last visited Mar. 27, 2024).
[2] Press Release, U.N. Refugee Agency, U.N. High Commissioner for Refugees, UNHCR and IOM Call for Decisive Action Following Mediterranean Tragedy, (June 16, 2023), https://www.unhcr.org/us/news/press-releases/unhcr-and-iom-call-decisive-action-following-mediterranean-tragedy (“Calling for urgent and decisive action to prevent further deaths at sea following the latest tragedy in the Mediterranean”) [hereinafter UN Refugee Agency Press Release].
[3] Id. (“Year after year, it continues to be the most dangerous migration route in the world.”).
[4] Kelsey Leigh Binder, Note, Cutting the Wire: A Comprehensive EU-Wide Approach to Refugee Crises, 41 Brook. J. Int’l L. 1339, 1339 (2016) (Commonplace of death of migrants traversing Mediterranean).
[5] Binder, supra note 4, at 1339 (“Even when a refugee arrives on European shores, there is no guarantee that he or she will be permitted to stay.”).
[6] UN Refugee Agency Press Release, supra note 2 (UN Refugee Commissioner calls for decisive EU action).
[7] Lori A. Nessel, Externalized Borders and The Invisible Refugee, 40 Colum. Human Rts. L. Rev. 625, 628 (2009) (“Global focus on securitization and enforcement has weakened the refugee protection regime . . . obligations of 1951 UN Convention.”).
[8] Id. 628-29 (“EU is bound by a number of human rights and European Community conventions beyond Refugee Convention.”).
[9] Id. at 627 (“The duty to rescue those in peril at sea is longstanding and codified in various international laws.”).
[10] Binder, supra note 4, at 1340 (“prima facie ground determinations are a state’s recognition of refugee status”).
[11] Id. at 1342-42 (Council implemented quota system, harsh treatment of refugees in Member States’ borders and refugee camps).
[12] Nessel, supra note 7, at 628 (FRONTEX to intercept and repatriate thousands of migrants caught at sea).
[13] Id. at 654 (“FRONTEX forces are now venturing into the waters of non-Member countries to stop refugees from starting their journey toward the EU.”).
[14] Id. at 652 (Operacion Hera II as "the first time an EU development took place in a third country”).
[15] Ariel Meyerstein, Comment, Returning the Harmonization of EU Asylum Law: Exploring the Need for an EU Asylum Appellate Court, 93 Calif. L. Rev. 1509, 1537 (2005) (“No binding authority over interpretation of the Refugee Definition”).
[16] Binder, supra note 4, at 1342 (“[I]t is clear that one of the EU’s main goals of promoting human rights regionally and internationally has taken a backseat.”).
[17] Jill I. Goldenziel, Displaced: A Proposal for an International Agreement to Protect Refugees, Migrants, and States, 35 Berkeley J. Int’l L. 47, 50 (“Lack of relevant binding international law- to protect people fleeing violence has tremendous consequences for states and human rights.”).
[18] Id. (“All other migrants may be legally sent back into the horrors from which they came.”).
[19] Id. at 76 (“Displaced Person” defined).
[20] Id. at 77 (“[E]xpand the category of persons who should receive international assistance in a way that would not create endless obligations for states.”).
[21] Id. at 89 (“clarity will help circumscribe the burdens on states and also clarify which migrants will receive international assistance”).
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