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NL ARMS Netherlands Annual Review of Military Studies 2018 pp 23–40Cite as

Legal Challenges Surrounding Maritime Operations in the Mediterranean Sea: Focus on Migrant Flows

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Abstract

Over time the nature of military and maritime operations has shifted from traditional warfare to hybrid type of operations including non-traditional forms of military action such as law enforcement activities. The changing character of operations also impacts the applicable legal framework making the conduct of these operations more challenging from an operator’s point of view. This article sheds light on the legal challenges that accompany the change in operations to migrant flow operations. A case in point are recent maritime operations focused on migrant flows conducted in de Mediterranean Sea, in particular the European Union mandated Operation Sophia, in which the Royal Netherlands Navy is involved, although not on a continuous basis.

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Notes

  1. 1.

    In the present chapter, the term migrants refers to refugees under Article 1 of the Convention Relating to the Status of Refugees; Geneva, 28 July 1951 (Vol. 189 UNTS No. 2545), as well as economic migrants looking for a better life abroad, Coppens 2013, p. 426.

  2. 2.

    E.g. EUNAVFOR MED Operation Sophia, NATO’s Standing Maritime Group 2 in the Aegean operations and FRONTEX Operations Poseidon and Triton; see Vacas Fernández 2016.

  3. 3.

    E.g. Boucher describes how rule of law is one of the core principles of EU enlargement, Boucher 2005, p. 89.

  4. 4.

    UN Doc S/2004/616, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Society.

  5. 5.

    Cf. Bingham 2011, p. 8.

  6. 6.

    Charter of the United Nations; San Francisco, 26 June 1945.

  7. 7.

    Netherlands Maritime Military Doctrine 2015, p. 316.

  8. 8.

    Military force may be used ‘if civil authorities and organisations can no longer or not yet perform their tasks themselves (‘safety net’) or if specific military capacities are required (‘structural partner’)’, id., p. 355.

  9. 9.

    Id., p. 342.

  10. 10.

    ECtRM 23 February 2012, Case of Hirsi Jamaa and Others v Italy, Judgement, Application No. 27765/09, p. 3.

  11. 11.

    Id., p. 77.

  12. 12.

    E.g., Article 33 of the Refugee Convention and Article 3 of the Convention against torture and other cruel, inhuman or degrading treatment or punishment; 10 December 1984 (Vol. 1465 UNTS No. 24841). Non-refoulement is inherent in the general terms of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Rome, 11 August 1950 (Vol. 213 UNTS No. 2889) (ECtRM 7 July 1989, Case of Soering v. United Kingdom, Judgment, Application No. 14038/88, para 88).

  13. 13.

    18 October 2015, Italian minister of Defence: www.marina.difesa.it/EN/operations/Pagine/MareNostrum.aspx. Accessed November 2017.

  14. 14.

    Italian ministry of defense: www.marina.difesa.it/EN/operations/Pagine/MareNostrum.aspx. Accessed November 2017.

  15. 15.

    Its legal basis is discussed in Vacas Fernández 2016, p. 100.

  16. 16.

    UK House of Lords 2017, p. 10.

  17. 17.

    EU Doc COM(2011) 743 final, European Commission, ‘Global Approach to Migration and Mobility, Brussel 18 November 2011 and EU Doc COM(2015) 285 final, EU Action Plan against migrant smuggling (2015–2020), Brussel, 27 May 2015.

  18. 18.

    House of Lords, Operation Sophia, the EU’s naval mission in the Mediterranean: an impossible challenge, 13 May 2016, p. 5.

  19. 19.

    Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED Operation SOPHIA), OJ 2015 (L 122/31). The operation was launched on 22 June 2015; Council Decision (CFSP) 2015/972 of 22 June 2015 launching the European Union military operation in the southern Central Mediterranean (EUNAVFOR MED), OJ 2015 (L157/51).

  20. 20.

    Council Decision (CFSP) 2015/778, Article 1(1).

  21. 21.

    According to Butler maritime search and rescue is a competence of the EU-member States; Butler and Ratcovich 2016, p. 241.

  22. 22.

    Rescue of persons in distress at sea is in international obligation that in principle does not need a formal mandate; Vacas Fernández 2016, p. 103.

  23. 23.

    Council Decision (CFSP) 2015/972 of 22 June 2015 launching the European Union military operation in the southern Central Mediterranean (EUNAVFOR MED), OJ 2015 (L157/51).

  24. 24.

    Council Decision (CFSP) 2015/778, Article 2(a).

  25. 25.

    Political and Security Committee Decision (CFSP) 2015/1772 of 28 September 2015 concerning the transition by EUNAVFOR MED to the second phase of the operation, as laid down in point (b)(i) of Article 2(2) of Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (EUNAVFOR MED/2/2015), OJ 2015 (L 258/5).

  26. 26.

    Id., Article 2(b)(i).

  27. 27.

    Id., Article 2(b)(ii).

  28. 28.

    Id., Article 2(c).

  29. 29.

    UN Doc S/Res/2240 (2015); authorizations set out in the Resolution were each time for a period of one year renewed in 2016 (UN Doc S/Res/2312 (2016)) and 2017 (UN Doc S/Res/2380 (2017)).

  30. 30.

    Decisions taken under Chapter VII are binding on member States (cf. Article 25 UN Charter).

  31. 31.

    Paragraph 10.

  32. 32.

    Fink 2016, 33. In the Netherlands maritime military doctrine 2015 the phrase ‘Interception’ is replaced by ‘Interdiction’.

  33. 33.

    Political and Security Committee Decision (CFSP) 2016/118 of 20 January 2016 concerning the implementation by EUNAVFOR MED operation SOPHIA of United Nations Security Council Resolution 2240 (2015) (EUNAVFOR MED operation SOPHIA/1/2016), OJ 2016 (L 258/5).

  34. 34.

    Government Response UK (2017), p. 2.

  35. 35.

    UN DOC S/Res/2292 (2016) of 14 June 2016.

  36. 36.

    Council Decision (CFSP) 2016/993 of 20 June 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), OJ 2016 (L 162/18).

  37. 37.

    In 2016 the Royal Netherlands Navy contributed two ships for the training of the Libyan Coast Guard and Navy; Dutch Parliamentary Papers 2017, Evaluation Netherlands’ contribution to missions and operations 2016, 15 May 2017, p. 22. https://zoek.officielebekendmakingen.nl/blg-807658. Accessed November 2017.

  38. 38.

    The operation commenced capacity building and training on 30 August 2016 and started its contribution to the implementation of the UN arms embargo on 6 September 2016; Political and Security Committee Decision (CFSP) 2016/1635 of 30 August 2016 on the commencement of the capacity building and training of the Libyan Coast Guard and Navy by the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA) (EUNAVFOR MED/3/2016) OJ 2016 (L 243/11) and Political and Security Committee Decision (CFSP) 2016/1637 of 6 September 2016 on the commencement of the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA) contributing to the implementation of the UN arms embargo on the high seas off the coast of Libya (EUNAVFOR MED/4/2016), OJ 2016 (L 243/14).

  39. 39.

    Council Decision (CFSP) 2016/2314 of 19 December 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), OJ 2016 (L 345/62).

  40. 40.

    Council Decision (CFSP) 2017/1385 of 25 July 2017 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), OJ 2017 (L194/61).

  41. 41.

    Cf. Butler and Ratcovich 2016, p. 248.

  42. 42.

    Voetelink 2013b, p. 199.

  43. 43.

    Bruggen et al. 2016, p. 2684.

  44. 44.

    Cf. Guilfoyl 2017, pp. 318–319.

  45. 45.

    Bruggen et al. 2016, p. 2685.

  46. 46.

    See for a general description: Gill and Fleck 2015, 3–14.

  47. 47.

    Gill and Fleck 2015, 3.

  48. 48.

    Voetelink 2013a, p. 162 ff.

  49. 49.

    Council of the EU, Use of Force Concept for EU-led Military Crisis Management Operations of 28 February 2006, P revision, Doc. 6877/06, as quoted in Cooper (2014), p. 192.

  50. 50.

    Article 5 Decision (CFSP) 2015/778.

  51. 51.

    A similar provision can be found in the resolutions on the arms embargo UNSC Resolution 2292, para 4.

  52. 52.

    Government Response UK 2017, p. 1.

  53. 53.

    ECtRM 27 September 1995, Case of McCann and others v. the United Kingdom, Judgement, Application No. 18984/91, paras 148 and 149.

  54. 54.

    United Nations Convention on the Law of the Sea; Montego-Bay, 10 December 1982 (Vol. 1833 UNTS No. 31363).

  55. 55.

    Article 110(1)(b) and 110(2).

  56. 56.

    Article 110(1)(b) and 110(2).

  57. 57.

    The 1974 International Convention for the Safety of Life at Sea (SOLAS), the International Convention on Maritime Search and Rescue; Hamburg, 27 April 1979 & UNCLOS Article 98.

  58. 58.

    Over 2016 a rough estimate of over 5000 people lost their lives trying to cross the Med: http://www.nytimes.com/2016/12/23/world/europe/migrant-death-toll-mediterranean-europe.html. Over 2017 the UNHCR official figure shows just over 3000 death and missing: http://data2.unhcr.org/en/situations/mediterranean, accessed January 2018.

  59. 59.

    Distress is defined in the SAR Convention as: “A situation wherein there is reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance.” SAR Convention, Chapter 1, para 1.3.13.

  60. 60.

    A number of those incidents occurred in recent years, is the experience of one of the authors who worked for the Netherlands Navy Maritime Headquarter from 2013 to 2015. It is however hard to produce openly accessible sources.

  61. 61.

    The complexity of dealing with migrants at sea also means that there is no NATO protocol or responsibility for it and is left to national authorities of troop contributing nations. In a specific (unclassified) guidance message issued on 8 January 2015 by NATO Maritime Command in Northwood there is the notion of the possibility of an OPCON shift whenever dealing with migrants or smugglers at sea, as they would ‘require follow up actions under national authority’. This guidance was issued to SNMG-1, the NATO fleet that regularly patrols the Mediterranean Sea.

  62. 62.

    The Hirsi Jamaa judgement not only dealt with the non-refoulement prohibition but also unequivocally established the extraterritorial working of the European Convention for Human Rights on EU warships outside EU territory, on the basis of effective control over all embarked persons, a.o. para 5, ECtRM 23 February 2012, Case of Hirsi Jamaa and Others v Italy, Judgement, Application No. 27765/09.

  63. 63.

    See also above under 3. Legal basis, supra note 13&14. As an example: the Ministry of Foreign Affairs of the Netherlands regularly produces a list of ‘safe countries’, deemed benign enough to send migrants back to once their asylum procedure has been terminated. There are 60 countries on the list, possibly implying that roughly 133 countries all over the world would indeed not qualify as safe and therefore be prone to violation of the non-refoulement prohibition if migrants were sent back there. Among those are countries that are known to produce migrant flows such as Libya, Eritrea, Nigeria, Somalia, and Morocco.

  64. 64.

    The International Maritime Organization in May 2004 issued a Resolution MSC.167(78), stressing the need for States to come up with, next to the existing SAR system, systematic agreements to deal with asylum seekers picked up at sea whose responsibility is not borne by the entity performing the Rescue.

  65. 65.

    Over 2016 and 2017 NGOs have started fairly large-scale rescue operations that brought some tens of thousands of migrants into the EU. They received both praise for their efforts and criticism for aggravating the situation (see https://tinyurl.com/y8qqloca). Starting mid-2017, Libyan Coastguard operators have been reported as aggressive in trying to get these NGOs to suspend their activities, which seems to be effective since a number of major NGOs have indeed done just that: (see: https://www.theguardian.com/world/2017/aug/14/three-ngos-halt-mediterranean-migrant-rescues-after-libyan-hostility) accessed January 2018.

  66. 66.

    See http://www.unhcr.org/1951-refugee-convention.html for the treaty, the travaux preparatoires and commentaries, accessed January 2018.

  67. 67.

    The Refugee Convention today has 145 signatories, out of 193 UN countries.

  68. 68.

    According to the Convention a refugee is a person who […owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it….].

  69. 69.

    An insightful article uncovers a number of legal considerations with regard to this hypothesis, see P. Strauch, in his comment in the Yale Law Journal, ‘When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union’s Operation to Combat Smuggling in Libya’s Territorial Sea’, YLJ, 126, (2017) pp. 2421–2449.

  70. 70.

    Border operations and maritime operations directed at controlling migrant movement are therefore subject to danger of ‘politicization’: see P. Cuttita, Repoliticization through Search and Rescue? Humanitarian NGOs and Migration Management in the Central Mediterranean, in Geopolitics, 17 July 2017, accessible at http://dx.doi.org/10.1080/14650045.2017.1344834.

  71. 71.

    189 countries signed the treaty, according to UNODC figures: https://www.unodc.org/unodc/en/treaties/CTOC/signatures.html.

  72. 72.

    The definition given by the Palermo Protocol states that Trafficking in Persons is [“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”] which is quite a far-reaching analysis to make for an operator without any previous knowledge or intelligence of the suspected vessel and its crew.

  73. 73.

    Article 110 UNCLOS.

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Authors and Affiliations

  1. Faculty of Military Sciences, Netherlands Defence Academy, Breda, The Netherlands

    F. J. Marchal & J. E. D. Voetelink

  2. Amsterdam Centre of International Law (ACIL), Breda, The Netherlands

    F. J. Marchal & J. E. D. Voetelink

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  1. F. J. Marchal
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Editors and Affiliations

  1. Faculty of Military Sciences, Netherlands Defence Academy, Den Helder, The Netherlands

    H. Monsuur

  2. Faculty of Military Sciences, Netherlands Defence Academy, Den Helder, The Netherlands

    J.M. Jansen

  3. Faculty of Military Sciences, Netherlands Defence Academy, Den Helder, The Netherlands

    F.J. Marchal

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Marchal, F.J., Voetelink, J.E.D. (2018). Legal Challenges Surrounding Maritime Operations in the Mediterranean Sea: Focus on Migrant Flows. In: Monsuur, H., Jansen, J., Marchal, F. (eds) NL ARMS Netherlands Annual Review of Military Studies 2018. NL ARMS. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-246-0_2

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