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Resolution 1821 (2011)
The interception and rescue at sea of asylum seekers, refugees and irregular migrants
1. The surveillance of Europe’s southern
borders has become a regional priority. The European continent is
having to cope with the relatively large-scale arrival of migratory
flows by sea from Africa, reaching Europe mainly through Italy,
Malta, Spain, Greece and Cyprus.
2. Migrants, refugees, asylum seekers and others risk their lives
to reach Europe’s southern borders, mostly in unseaworthy vessels.
These journeys, always undertaken illicitly, mostly on board flagless
vessels, putting them at risk of falling into the hands of migrant
smuggling and trafficking rings, reflect the desperation of the
passengers, who have no legal means and, above all, no safer means
of reaching Europe.
3. Although the number of arrivals by sea has fallen drastically
in recent years, resulting in a shift of migratory routes (particularly
towards the land border between Turkey and Greece), the Parliamentary Assembly,
recalling, inter alia, its Resolution 1637 (2008) on
Europe’s boat people: mixed migration flows by sea into southern
Europe, once again expresses its deep concern over the measures
taken to deal with the arrival by sea of these mixed migratory flows.
Many people in distress at sea have been rescued and many attempting
to reach Europe have been pushed back, but the list of fatal incidents
– as predictable as they are tragic – is a long one and it is currently
getting longer on an almost daily basis.
4. Furthermore, recent arrivals in Italy and Malta following
the turmoil in North Africa confirm that Europe must always be ready
to face the possible large-scale arrival of irregular migrants,
asylum seekers and refugees on its southern shores.
5. The Assembly notes that measures to manage these maritime
arrivals raise numerous problems, of which five are particularly
worrying:
5.1. despite several relevant
international instruments which are applicable in this area and
which satisfactorily set out the rights and obligations of states
and individuals applicable in this area, interpretations of their
content appear to differ. Some states do not agree on the nature
and extent of their responsibilities in specific situations and
some states also call into question the application of the principle
of non-refoulement on the
high seas;
5.2. while the absolute priority in the event of interception
at sea is the swift disembarkation of those rescued to a “place
of safety”, the notion of “place of safety” does not appear to be
interpreted in the same way by all member states. Yet it is clear
that the notion of “place of safety” should not be restricted solely
to the physical protection of people, but necessarily also entails
respect for their fundamental rights;
5.3. divergences of this kind directly endanger the lives of
the people to be rescued, in particular by delaying or preventing
rescue measures, and they are likely to dissuade seafarers from
rescuing people in distress at sea. Furthermore, they could result
in a violation of the principle of non-refoulement in respect
of a number of persons, including some in need of international
protection;
5.4. although the European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the
European Union (Frontex) plays an ever increasing role in interception
at sea, there are inadequate guarantees of respect for human rights
and obligations arising under international and European Union law,
in the context of the joint operations it co-ordinates;
5.5. finally, these sea arrivals place a disproportionate burden
on the states located on the southern borders of the European Union.
The goal of responsibilities being shared more fairly and greater solidarity
in the migration sphere between European states is far from being
attained.
6. The situation is rendered more complex by the fact that these
migratory flows are of a mixed nature and therefore call for specialised
and tailored protection-sensitive responses in keeping with the
status of those rescued. To respond to sea arrivals adequately and
in line with the relevant international standards, the states must
take account of this aspect in their migration management policies
and activities.
7. The Assembly reminds member states of their obligations under
international law, including the European Convention on Human Rights
(ETS No. 5), the United Nations Convention on the Law of the Sea
of 1982 and the 1951 Geneva Convention relating to the Status of
Refugees, and particularly reminds them of the principle of non-refoulement and the right to
seek asylum. The Assembly also reiterates the obligations of the states
parties to the 1974 International Convention for the Safety of Life
at Sea and the 1979 International Convention on Maritime Search
and Rescue.
8. Finally and above all, the Assembly reminds member states
that they have both a moral and legal obligation to save persons
in distress at sea without the slightest delay, and unequivocally
reiterates the interpretation given by the Office of the United
Nations High Commissioner for Refugees (UNHCR), which states that
the principle of non-refoulement is
equally applicable on the high seas. The high seas are not an area
where states are exempt from their legal obligations, including
those emerging from international human rights law and international
refugee law.
9. Accordingly, the Assembly calls on member states, when conducting
maritime border surveillance operations, whether in the context
of preventing smuggling and trafficking in human beings or in connection with
border management, be it in the exercise of de
jure or de facto jurisdiction,
to:
9.1. fulfil without exception
and without delay their obligation to save people in distress at
sea;
9.2. ensure that their border management policies and activities,
including interception measures, recognise the mixed make-up of
flows of individuals attempting to cross maritime borders;
9.3. guarantee for all intercepted persons humane treatment
and systematic respect for their human rights, including the principle
of non-refoulement, regardless
of whether interception measures are implemented within their own
territorial waters, those of another state on the basis of an ad
hoc bilateral agreement, or on the high seas;
9.4. refrain from any practices that might be tantamount to
direct or indirect refoulement,
including on the high seas, in keeping with the UNHCR’s interpretation
of the extraterritorial application of that principle and with the
relevant judgments of the European Court of Human Rights;
9.5. carry out as a priority action the swift disembarkation
of rescued persons to a “place of safety” and interpret a “place
of safety” as meaning a place which can meet the immediate needs
of those disembarked and in no way jeopardises their fundamental
rights, since the notion of “safety” extends beyond mere protection
from physical danger and must also take into account the fundamental
rights dimension of the proposed place of disembarkation;
9.6. guarantee access to a fair and effective asylum procedure
for those intercepted who are in need of international protection;
9.7. guarantee access to protection and assistance, including
to asylum procedures, for those intercepted who are victims of human
trafficking or at risk of being trafficked;
9.8. ensure that the placement in a detention facility of those
intercepted – always excluding minors and vulnerable categories
– regardless of their status, is authorised by the judicial authorities
and occurs only where necessary and on grounds prescribed by law,
that there is no other suitable alternative and that such placement
conforms to the minimum standards and principles set forth in Assembly Resolution 1707 (2010) on
the detention of asylum seekers and irregular migrants in Europe;
9.9. suspend any bilateral agreements they may have concluded
with third states if the human rights of those intercepted are not
appropriately guaranteed therein, particularly the right of access
to an asylum procedure, and wherever these might be tantamount to
a violation of the principle of non-refoulement,
and conclude new bilateral agreements specifically containing such
human rights guarantees and measures for their regular and effective
monitoring;
9.10. sign and ratify, if they have not already done so, the
aforementioned relevant international instruments and take account
of the International Maritime Organization (IMO) Guidelines on the Treatment
of Persons Rescued at Sea;
9.11. sign and ratify, if they have not already done so, the
Council of Europe Convention on Action against Trafficking in Human
Beings (CETS No. 197) and the so-called “Palermo Protocols” to the
United Nations Convention against Transnational Organized Crime
(2000);
9.12. ensure that maritime border surveillance operations and
border control measures do not affect the specific protection afforded
under international law to vulnerable categories such as refugees, stateless
persons, women and unaccompanied children, migrants, victims of
trafficking or at risk of being trafficked, or victims of torture
and trauma.
10. The Assembly is concerned about the lack of clarity regarding
the respective responsibilities of European Union states and Frontex
and the absence of adequate guarantees for the respect of fundamental rights
and international standards in the framework of joint operations
co-ordinated by that agency. While the Assembly welcomes the proposals
presented by the European Commission to amend the rules governing
that agency, with a view to strengthening guarantees of full respect
for fundamental rights, it considers them inadequate and would like
the European Parliament to be entrusted with the democratic supervision
of the agency’s activities, particularly where respect for fundamental
rights is concerned.
11. The Assembly also considers it essential that efforts be made
to remedy the prime causes prompting desperate individuals to risk
their lives by boarding boats bound for Europe. The Assembly calls
on all member states to step up their efforts to promote peace,
the rule of law and prosperity in the countries of origin of potential
immigrants and asylum seekers.
12. Finally, in view of the serious challenges posed to coastal
states by the irregular arrival by sea of mixed flows of individuals,
the Assembly calls on the international community, particularly
the IMO, the UNHCR, the International Organization for Migration
(IOM), the Council of Europe and the European Union (including Frontex
and the European Asylum Support Office) to:
12.1. provide any assistance required to those states in a spirit
of solidarity and sharing of responsibilities;
12.2. under the auspices of the IMO, make concerted efforts
to ensure a consistent and harmonised approach to international
maritime law through, inter alia,
agreement on the definition and content of the key terms and norms;
12.3. establish an inter-agency group with the aim of studying
and resolving the main problems in the area of maritime interception,
including the five problems identified in the present resolution,
setting clear policy priorities, providing guidance to states and
other relevant actors, and monitoring and evaluating the use of
maritime interception measures. The group should be made up of members
of the IMO, the UNHCR, the IOM, the Council of Europe, Frontex and
the European Asylum Support Office.