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sabato 6 agosto 2016

Il governo di Tripoli vuole cinque miliardi dall'Italia per ripristinare il trattato di pace tra Berlusconi e Ghedafi con gli accordi di blocco e respingimento. Ma sono ancora le navi umanitarie a salvare la maggior parte delle persone in pericolo di naufragare.

Il governo di Tripoli vuole cinque miliardi dall'Italia per ripristinare il trattato di pace tra Berlusconi e Ghedafi con gli accordi di blocco e respingimento. Ma sono ancora le navi umanitarie a salvare la maggior parte delle persone in pericolo di naufragare. E Serraj non controlla neppure tutta Tripoli, cosa può garantire all'Italia ed all'Europa ?







    Giungono apprezzamenti tardivi sul ruolo essenziale giocato dalle navi umanitarie nel Mediterraneo centrale, in sostituzione delle attività di ricerca e salvataggio (SAR) che Frontex ed Eunavfor Med dimostrano di non volere più assolvere. Merito della Guardia Costiera italiana questo importante riconoscimento. Ma le polizie di frontiera aumentano la pressione agli sbarchi, anche sugli operatori umanitari e sui giornalisti. Presto qualcuno potrebbe lasciare. E si vedrà con quali conseguenze.



The Central Mediterranean Route

Fulvio Vassallo Paleologo

The Central Mediterranean Route is the maritime route that migrants coming from Lybian coast take in the attempt to reach Maltese or Italian shores in Lampedusa and Sicily. One of the longest and most perilous[1]routes, if compared to the shorter Eastern Aegean route from Turkey to Greece. It is a fact that the highest number of deaths of migrants at sea was recorded[2] on this route.

On the shore the day set for departure sub-saharan migrats including Gambian, Malian, Nigerian, and Somali citizens, meet migrants coming from East-Asia, the majority from Bangladesh, other migrants from Maghreb, Ethyopia and Eritrea. All of themreached Lybia thorugh risky trips crossing the desert.

The survivors of the trip often need to remain in Lybia to make enough money to pay the smugglers. In some cases they are subject to sexual and work exploitation.Many of them stay in Lybian detention centres in dreadful conditions.

The smugglers inflate rubber boat on the day and send off the overcrowded boats without sufficient fuel for the whole journey. The destiny of the boats is clear from the beginning: they won't be able to make it to Malta, or Italy alone.


Obligation to search and rescue

The 1979 Convention on Maritime Search and Rescue adopted at a Conference in Hamburg, was aimed at developing an international SAR plan, so that, no matter where an accident occurs, the rescue of persons in distress at sea will be co-ordinated by a SAR organization and, when necessary, by co-operation between neighbouring SAR organizations. A revised Annex to the  SAR Convention was adopted in May 1998 and entered ito force in  January 2000.

The SAR zones established pursuing the International Convention on Maritime Search and Rescue signed in Hambourg in 1979 divide the waters in the Central Mediterranean Routebetween Italy, Malta and Lybia.

The State responsible for a SAR area is responsible for coordinating the SAR operation, for the treatment of persons rescued at sea: in particular the State must provide a place of safety disembarking or ensure that such a place is provided[3]. This may be influenced by formal or informal bilateral agreements.

Even after the end of Mare Nostrum operation Italy's intervention in the Maltese SAR zone continuedand the people rescued in Maltese SAR zone were cosnsistently disembarked on the Italian territory. It appears that the informal agreement between Italy and Malta is still enforced in the Central Mediterranean as Italy is still intervening in Maltese SAR zone on the route from Lybia to Sicily[4].

Actors of SAR operations in the Central Mediterranean Route

Italian and humanitarian vessels are main actors in SAR operations in the Central Mediterranean Corridor as this activity is within their mission.

The head of Italian SAR organization is the central commandof the Corpo delle capitanerie di porto - Guardia Costiera, which is a special unit of the Navy[5].It is mainly concerned with search and rescue but also deals with other issues related to maritime safety and control.

Vessels deployed by humanitarian associations.Doctors Without Borders (MSF)has deployed two vessels: Bourbon Argos and Dignity, for SAR operations in the Central Mediterranean Corridor. MSF also cooperates with Acquarius(SOS Mediterranée). MOAS (Emergency) deployed one vessel.

Sea Watch deployed two small vessels, unapt to rescue operation, but fast, which are used for search operations of vessels in distress so that competent the MRCC can be informed as soon as possible of any occurring emergency situation an about the position of the vessell in distress.

Merchant ships have been and are increasingly involved in SAR operations in two cases: either under the general obligation to rescue provided by international law (UNCLOS) and Italian law or when the Italian MRCC declares the SAR event and they are called to join the SAR operation.The involvement of merchant ships may be direct or indirect. When merchant ships do not intervene directly by taking people on board, their involvment may be indirect: through searching, alerting the competent autorities about an emergency situation in distress, distributing food, waiting for the arrival from ships from the Navy, the coastguards, Guardia di Finanza.

Merchant vessels are not designed for SAR operations, not equipped to rescue or providing adequate assistance to rescued persons, witout the human and material resources to carry out rescue activities safely[6]. As they are not designed for SAR operation, safety issues often arise as the process of taking people on board may be dangerous, there is no medical equipe on board to assist people intercepted.

The operation Mare Sicuro does not have the task to control borders but to guarantee the safety of sea crossing for commercial vessels, security for oil-plants, and fishing activities.
In order to carry out these activities the position of the Mare Sicuro units must be in international waters in proximity with Lybian waters.

The role of Guardia di Finanza is coordinatitng the 'control of illegal immigration at sea' implemented by the Navy, The Police and the Guardia Costiera, and intercepting 'smugglers'[7].

Frontex: the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’), also known as'Frontex', was established by Council Regulation (EC) No 2007/2004 and started operating on 3 October 2005[8], with the mission to support, coordinate and develop european border management.

Council Regulation (EC) 2007/2004as amended with regulation (EC) N. 863/2007 and Regulation (EU) No 1168/2011, disciplines Frontex's structure and function with reference to contrasting illegal immigration but without reference to specific SAR and disembarking in a 'place of safety obligations'. In any case, Regulation 2007/2004 makes it clear that Frontex's mandate must be carried out in line with the Charter of Fundamental Rights of the European Union and other international obligations, including provisions on the right to asylum and international protection and the principle of non-refoulement.

In case a SAR event is declared by the Italian authorities any boat including patrol boat which is in the proximity must intervene. The trigger for the legal obligation to render assistance at sea is a distress situation. How states define this notion is crucial to the fulfilment of their SAR obligations.
The 1979 SAR Convention defines distress 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”. Different states have taken considerably different views in this respect. Consistent standards of safety are not applied in the central Mediterranean, with the same boat being regarded in distress by one SAR authority and able to continue its journey by another.In particular, for Malta, a vessel must be on the point of sinking and there mustbe a request of assistance. For Italy, unseaworthiness per se entails distress. [9]

Although in general terms, Frontex Regulation 656/2014[10] provides Frontex's obligations regarding search and rescue activities.

This Regulation replaces Council Decision 2010/252/EU (2) which was annulled by the Court of Justice of the European Union (‘the Court’) by its judgment of 5 September 2012 in Case C-355/10 it was not within the executive competence of the Council.

It is the the Central Command of the Italian Coast guard the one who has the authority to declares the SAR event in the SAR zone in which Frontex conducts border surveillance activities.

The Agency Frontex is responsible for the coordination of operational cooperation between Member States in the field of management of the external borders, including as regards border surveillance. The Agency is also responsible for assisting Member States in circumstances requiring increased technical assistance at the external borders, taking into account the fact that some situations may involve humanitarian emergencies and rescue at sea. 

The prohibition of violation of fundamental rights in Frontex operations entails the obligation to
- protect personal safety,
- provide the rescued persons with information about the proposed place for disembarkation,
-address the special needs of vulnerable persons, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance, disabled persons, persons in need of international protection and other persons in a particularly vulnerable situation,
- protect rescued person's right to privacy.
The exchange with third countries of personal data regarding intercepted or rescued persons obtained during a sea operation shall be prohibited where there is a serious risk of contravention of the principle of non-refoulement. This is very important to bear in mind should the dreadful proposal of floating hot spots becomes more than a proposal.
- full respect for human dignity and the principle of non-refoulement (Article 4).

During border surveillance operations at sea, Member States should respect their respective obligations under international law, in particular the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the United Nations Convention against Transnational Organized Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the United Nations Convention relating to the Status of Refugees, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Convention on the Rights of the Child and other relevant international instruments[11].

In accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council (5) and general principles of Union law, any measure taken in the course of a surveillance operation should be proportionate to the objectives pursued, non-discriminatory and should fully respect human dignity, fundamental rights and the rights of refugees and asylum seekers, including the principle of non-refoulement. Member States and the Agency are bound by the provisions of the asylum acquis, and in particular of Directive 2013/32/EU of the European Parliament and of the Council with regard to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of Member States.

Map comparing the operational zones of Italian Navy’s Mare Nostrum and Frontex’s Triton.
Credit: Forensis Oceanography. GIS analysis: Rossana Padeletti. Design: SamanehMoafi.

United Nations Convention on the Law of the Sea of 10 December 1982
Under article 33 UNCLOS patrols should be limited to the 24 nautical miles of the Italian contiguous zone. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.
The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.
However, in fact patrol operation are also conducted beyond the contiguous zone in international waters.

Duty to render assistance (Article 98 UNCLOS  - 1982)

1.Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.

While in the first four months of 2014, more than 26,000 migrants had crossed the Mediterranean and 60 Deaths had been recorded, in the same period of 2015, an almost identical   number of crossings had occurred,but the number deaths had increased to 1,687 (UNHCR and IOM data).

The lethal effects of the eu’s policies of non-assistance at sea
A report by Charles Heller and Lorenzo Pezzani (Forensic Oceanography/Forensic Architecture)
Part of the ESRC supported “Precarious Trajectories “research” project, University of York and Goldsmiths,University of London.

Since autumn 2015 EUNAVFORMED (European Navy For(ce) Mediterranean) operation became more present than Frontex in the Central Mediterranean Corridor.

In December the Commission published a proposal for a European Border and Coast Guard Agency with enhanced regulatory and operational tasks, and with the attribution to the renamed Agency of a supervisory role. The new Agency replacing Frontex will have a stronger character of monitoring and surveillance of illegal crossing of EU sea borders[12].
The Conclusions of the EU council meeting of 18 and 19 February 2016 under section II 'Migration', (8) (h) confirm the need to proceed with the creation of the EU Border and Coast Guard with urgency.

Two main criticism as regarding SAR activities: 1) the proposal does not address and resolve existing problems concerning the unclear division of responsibilities between the Agency and the MS. 2) The proposal does not attribute specific competence and role to the Agency with regard to SAR operations.

The study commissioned by the European Parliament's Policy Department for Citizen's Rights and Constitutional Affairs at the request of the LIBE committee suggests to 'to include SAR provisions to allow the Agency to play a more active SAR role without affecting the international SAR framework'[13]. There is no reference to Regulation 656/2014 in the Commission's proposal for a EU Border and Coast Guard Authority as well as to the operational plan on SAR activities adopted by Frontex pursuant this regulation. This is a critical point.

Recently Alfano and the European Commission propose the creation of floating hotspots, thus transferring the hotspot approach on the Navies that intervene in search and rescue operations. The floating hotspot would facilitate identification and anticipate the separation of person in clear need of protection and so called 'economic migrants' making it easier to return the latter. The effort of EU Commission seems to be aimed at block migration flow towards the EU.
The EU is creating the conditions on the basis of which it will be possible to get around the obligation to rescue.

Success of SAR operations is tightly linked to the number and characteristics of vessels deployed by Frontex, Eunavformed present on the Central Mediterranean Corridor.

The need to contrast illegal immigration and the obligation to protect human life at risk are in tension. The balancing between the two interests is determined making reference to the obligations provided by international. European and national law. However in practice this balancing is decided by the forces deployed, whcih is a very factual element, but also by political and military equilibriums between the countries involved.

The sharp rise in refugees and migrants prepared to risk the perils of long journeys in rickety, overcrowded boats is not just the product of increased instability in the Middle East and the  deterioration of the situation in Libya over the last 12 months. It is also a consequence of  the progressive sealing off of Europe’s land borders and the absence of safe and legal  channels for migrants and refugees to reach the EU. For so long as the EU continues to push  those fleeing conflict or poverty to take danger ous sea journeys, it must be prepared collectively to meet its obligations to save lives.

In any case, the general obligation to rescue people in distress at sea under international law, SAR conventions and EU Regulation 656/2014 and Italian law, determine the priority of rescue over the interest of the States to patrol, fight smugglers, fight illegal immigration.

Fulvio Vassallo Paleologo
Associazione Diritti e Frontiere (ADIF)

[1] http://www.theguardian.com/world/2016/may/31/mediterranean-death-toll-880-last-week-unhcr-migration
[2] http://missingmigrants.iom.int/
[3] Guidelines on the treatment of persons rescued at sea, adopted in May 2004 by the Maritime Safety Committee together with the amendments to the International Conventions on Maritime Search and rescue and for the Safety of Life at Sea
[4]News reported that on 20 May 2016 Italy delegated Malta to intervene in response to a request (SOS) in Maltese waters. On its Eastern side, Maltese SAR confines with Greek SAR (North) and Egypt SAR (South). It is therefore plausible that Italian vessels would not be able to arrive on time in case a vessel is in distress on the route from Alessandria (Egypt) to Malta, South in respect to Peloponnesus and East in respect to Malta.

[6] Letter to 28 Member states of the European shipowners' association and seafarers' asociations' unions dated 8 April 2015.
[7] Article 12 (7) L. n. 40/1998.
[8] Frontex was instituted by Regulation (CE) n.2007/2004 of the Council of 26 October 2004 (GU L 349 del 25.11.2004), and started operating on 3 October 2005.

[9] ‘Place of safety’ means a location where rescue operations are considered to terminate and where the survivors’ safety of life is not threatened, where their basic human needs can be met and from which transportation arrangements can be made for the survivors’ next destination or final destination, taking into account the protection of their fundamental rights in compliance with the principle of non-refoulement.

[11] Frontex has the obligation to assess the personal circumstances of the rescued persons (article 4(3) Regulation 656/2014). Fulfilling this obligation entails the support of medical staff, interpreters and other relevant experts of the host and participating MS. In case of disembarcation of persons in need of international protection and other persons in particularly vulnerable situations contact details of the national autorities responsible for providing follow-up measures upon disembarkation must be provided (art. 10 (2) together with art 4 (1) and (4)of Regulation 656/2014).
If disembarkation in a Third Country is foresee, a reference to the existing shore-based medical staff, interpreters and other relevant experts of the host and participating Member States to support the assessment of the personal circumstances of rescued and intercepted persons) – Article 4(3) of Regulation 656/2014).
[12]Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC


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Un blog perché la cronaca quotidiana non diventi assuefazione, per contrastare la rimozione di problemi che sono prodotto di scelte politiche e di prassi amministrative che si nascondono dietro le retoriche dell'emergenza e della sicurezza. Prima di Lampedusa, prima dello sbarco, cronache di viaggi che spesso terminano in tragedie, poi notizie raccolte nei luoghi di sbarco e di accoglienza, dove si diffonde la detenzione informale e dove i diritti fondamentali dei migranti vengono compressi da una discrezionalità che si sottrae a qualsiasi controllo giurisdizionale, infine testimonianze di viaggio verso altri paesi, per trovare quel futuro e quella dignità che lItalia non garantisce più. E dunque fatti, persone, non numeri o dati, un racconto quotidiano che diventa memoria, ma anche impulso per modificare, in Italia ed in Europa, il quadro legislativo e le procedure applicate.

Diritti sotto sequestro