October 24, 2013
Europe needs to do more to ensure that its standards apply equally everywhere, by helping those countries where procedures and conditions fall well short of the mark, and sanctioning them when necessary.

The tragedy in the southern Mediterranean Sea in the early hours of October 3 -- in which more than 350 Eritrean refugees drowned in a shipwreck off Lampedusa, near Sicily -- shook Europe, and rightfully so. The television images and newspaper reports linger: people struggling desperately to be saved but then, exhausted, slipping through rescuers’ hands; divers entering the boat’s sunken hull to find hundreds of dead bodies packed inside; dead children wrapped in their mothers’ arms. Manuel Barroso, president of the European Commission, said after visiting Lampedusa that the sight of rows of “coffins of children and their mothers” had “shocked” him.

But the true shock is that tragedies like this, if on a smaller scale, have been a regular occurrence for years. Estimates are that 20,000 or more men, women, and children have perished in the Mediterranean Sea in the last 20 years, including 1,500 in 2011 and 500 last year; just days after this Lampedusa sinking, another boat went down near the island, causing at least 36 more deaths. And all this is happening in one of the busiest and most highly monitored set of shipping lanes in the world, near the shores of one of its richest continents. Europe’s record is a scandal, by any definition of the term.

The question is what European policymakers will do about it. The prime ministers or presidents of all European Union member states are meeting this week to discuss policy responses, but so far there is little sign that they are prepared to reconsider the current strategy of preventing departures and barring entry. If Europe hopes to avoid further tragedies, it desperately needs to adopt an approach that focuses on safeguarding the rights of refugees rather than the sensitivities of its member states.

At the root of Europe’s asylum troubles is a type of collective action problem. Right now, people interdicted or rescued within EU territorial waters are supposed to be taken to EU shores, but it’s not entirely clear who is legally responsible for taking them in. Countries like Italy and Malta have responsibility for patrolling large search and rescue zones that extend outside their territorial waters, but the EU has repeatedly been drawn into disputes between the two countries over where rescued migrants should be disembarked. A similar buck-passing dynamic has created disincentives for commercial ships to help stranded boats. Commercial ships are often stuck with nowhere to drop off stranded people, while southern European countries argue over who is responsible for taking them in. In the case of Italy, commercial ships even face potential prosecution under people-smuggling laws.

When boats are in international waters things are even murkier. EU member states and Frontex, the EU border agency, are obliged under international and EU law not to return people to torture or persecution and to give them to right to seek asylum. But current guidelines and practice also allow member state coast guards and Frontex to order boats still in international waters to turn around, and to escort them back to the country from where they departed -- even if it is a country like Libya, which lacks a functioning asylum system and has a history of abuse against migrants. Even if this approach succeeds in narrow terms, these migrants are likely to try the perilous crossing again.

In that way, the EU’s existing policies ensure that refugees, despite their legal right to arrive in Europe, will face vast difficulties, or even perish, en route. And if anything, the tendency of European policymakers over time has been to reinforce the flaws of its current system. A new EU border surveillance system, adopted by the European parliament only days after the October 3 sinking, is built around preventing irregular migration and is meant to only “contribute” to saving lives.

In the weeks since then, the European Commission, the EU’s administrative arm based in Brussels, has proposed shoring up Frontex by increasing its budget and patrols in the Mediterranean, and is rightly insisting on a broad definition of distress, so that rescuers don’t need to wait until a boat is sinking before taking action. But a group of six southern European countries (Italy, Malta, Greece, Spain, France, and Cyprus) is objecting to a proposal that the Commission made in April, which would give the agency greater responsibilities for search and rescue as well as for determining where rescued migrants would land. This group says it is imperative for these matters to remain under the control of national governments.

But that would only perpetuate the continent’s fundamental collective action problem. As long as southern European states feel overburdened by the arrival of refugees, and northern European states insist that they already do enough, refugees will struggle to find legal and orderly avenues to the EU. And that means that refugees from countries such as Eritrea, Somalia, and Syria will continue to take the sorts of dangerous routes that produce tragedies in the Mediterranean.

The point is that making small changes around the edges of Europe’s existing rules won’t work.Part of the solution needs to involve more equitably distributing the financial and administrative burdens of receiving refugees among all Europeans. Right now, the EU sets common standards for asylum seekers, but doesn’t do enough to make sure those standards are properly enforced. Greece, for instance, has a notoriously dysfunctional asylum system, though recent reforms have brought modest improvements. Italy has too few reception centers and too little in the way of assistance and integration measures for recognized refugees. Malta imposes virtually automatic detention on migrants and asylum seekers, including unaccompanied children until their age has been established. Europe needs to do more to ensure that its standards apply equally everywhere, by helping those countries where procedures and conditions fall well short of the mark, and sanctioning them when necessary. Northern Europe should also agree to reform an EU rule that in most cases requires the first country of entry to process asylum claims -- even if this results in northern European countries taking more asylum seekers.

Europe should also reconsider its policies for legal migration. Responding to the Lampedusa sinking, François Crépeau, the United Nations expert on migrants’ rights, called on the EU to adopt “new legal channels for migration, especially for low skilled migrants.” Indeed, this could serve as another way of circumventing undue stress on Mediterranean countries; migrants would have the opportunity to seek work permits in EU countries where they can find employment, rather than in the country that happens to process their asylum applications. In the absence of such legal migratory channels, Crépeau says, the numbers of such migrants risking their lives on “perilous sea routes can only increase.”

Shock is no longer a sufficient response to the sort of tragedy that took place on October 3. Italy’s prime minister, Enrico Letta, was closer to the mark when he took the unusual step of apologizing “for the inadequacies of my country in relation to a tragedy like this.” His government then called for a day of mourning for those who died. A moving gesture, to be sure -- but meaningless if the EU doesn’t do more to prevent deaths of migrants at sea, and to provide humane treatment to those who make it.

Hugh Williamson is Director at the Europe and Central Asia division and Judith Sunderland is acting Deputy Director at the Europe and Central Asia division of Human Rights Watch.