VII. The Approach of the European Union Towards Libya
The EU long regarded Libya as a pariah state with whom cooperation was considered impossible. In fact, between 1992 and October 2004, Europe imposed economic sanctions and an arms embargo on Libya. On the very day that the embargo was lifted, however, the Council of the European Union agreed to engage with Libya on immigration matters. It sent a technical mission there in November-December 2004 “to examine arrangements for combating illegal migration.”
In June 2005, the EU Justice and Home Affairs Council adopted a Council Conclusion on cooperation with Libya on migration issues, which included reinforcing “systematic operational co-operation between the respective national services responsible for sea borders,” and developing common Mediterranean Sea operations involving the temporary deployment of EU Member States’ vessels and aircraft.The ad hoc measures also included sending EU immigration liaison officers (ILOs) to Libyan seaports and Tripoli airport for interception purposes. The EU committed to training Libyan officials on immigration controls and on “best practices” for removal of illegal immigrants.
The Council Conclusion also called for exploratory discussions with Libya to “tackle illegal migration in areas such as training, reinforcement of institution building, asylum issues, and public awareness of the dangers of illegal migration.” Included on the list of suggestions for these discussions was how to assist in the repatriation of failed asylum seekers “after an independent asylum procedure in accordance with international standards,” and intensified cooperation and capacity building for “migration management and protection of refugees” in cooperation with UNHCR.
In July 2007, EU Commissioner in charge of External Relations and European Neighborhood Policy, Benita Ferrero-Waldner, and Libyan Minister for European Affairs, Adbulati Elobeidi, signed a Memorandum of Understanding which highlighted migration as an area of common interest. The following year, the European Commission and Libya launched negotiations for a broad agreement—the EU-Libya Framework Agreement—which called for political dialogue and cooperation on foreign policy, human rights, security issues and migration.
In July 2009, the vice president of the European Commission Responsible for Justice, Freedom and Security, Jacques Barrot, said that the EU would present a package for €80 million during his planned visit to Libya in September 2009, of which €20 million was to be for building accommodation centers for asylum seekers and €60 million for migration management projects on Libya’s southern frontier. Al-Gaddafi is still reportedly insisting on a €300 million package from the EU to combat irregular migration in Libya. At the time of this writing, the EU-Libya Framework Agreement is still being negotiated.
Outsourcing EU migration and asylum policy
On May 27, 2009, after Italy and Libya’s joint naval operations had been inaugurated, Barrot addressed a letter to the President of the European Council calling for a two-pronged EU approach on asylum and humanitarian protection. On the internal front, he suggested a “voluntary effort” among EU member states for “resettlement of persons under international protection.” On the external front, he proposed:
Establishment of relations between the UNHCR and Libya with a view to setting up a scheme there for the reception and protection of asylum seekers that will meet the highest international standards. In particular, the scheme would make it possible to determine the status of people sent back to Libya, who might then be offered resettlement.
At a time when UNHCR, the Commissioner of Human Rights of the Council of Europe, Thomas Hammerberg, and NGOs, including Human Rights Watch, were criticizing Italy for flouting international law and European standards, not a single EU member state criticized Italy publicly. Barrot eventually expressed concern at the pushbacks, saying that they were “not the answer” and indicating that “rescuers, including Frontex, can save but cannot refuse entry.” But his policy proposal revives a deeply flawed concept for externalizing EU refugee processing that replaces legally enforceable asylum standards and procedures on European soil with a voluntary and discretionary scheme. It is essentially the same proposal that has circulated in EU debate, and been discredited, off and on for more than two decades.
At the beginning of the 2003 Iraq war, British Prime Minister Tony Blair proposed the idea of “transit processing centers” in countries outside the EU to which EU member states would return asylum seekers and where UNHCR would screen them for refugee status. An EU summit in June 2003 called on the European Commission to report back within one year on measures for “more orderly and managed entry in the EU of persons in need of international protection.” A year later, the Commission rejected setting up an EU procedure to regulate the entry of asylum seekers but promoted the idea of an EU refugee resettlement program with UNHCR involvement. At an October 2004 meeting of interior ministers in the Netherlands, the ministers split over the Blair proposal. That December, the EU Parliament’s Committee on Civil Liberties, Justice, and Home Affairs voted down the idea of “offshoring” EU’s responsibilities for asylum seekers. Meanwhile, no North African governments offered to provide land for future EU reception centers. By January 2005, the EU interior ministers meeting in Luxembourg admitted the idea was dead. 
What is particularly remarkable is not the concept itself, but the timing of Barrot’s letter at a historical moment when a European state for the first time openly breached its nonrefoulement obligations under both the Refugee Convention and the European Convention on Human Rights, among other conventions. Even Blair’s 2003 proposal had included the caveat that applicants under his scheme would not be exposed to inhuman or degrading treatment. “Both the processing centers and the decisions taken in them would clearly have to conform to this requirement as a matter of policy and to avoid a successful challenge in the courts,” he wrote. Barrot’s proposal in late May 2009 came in the face of reports of inhuman and degrading treatment of returnees in Libya.
Barrot’s proposal to enlist UNHCR in a “scheme” to make status determinations “of people sent back to Libya” who then “might” be offered resettlement, accepted Italy’s interdiction and summary return regime as a given. His proposal also would replace the EU’s current asylum system that creates binding obligations on EU member states with a voluntary and discretionary scheme that might or might not offer UNHCR-refugees recognized in Libya resettlement places in Europe.
The inevitable result of such a scheme would be the warehousing of refugees in Libya, assuming Libya would tolerate their presence. Refugees would be left to wait in Libya for European resettlement offers or, equally predictably, would become a residual population rejected for resettlement, but nevertheless still recognized as refugees by UNHCR.
This problem is illustrated by the current gap between the number of refugees UNHCR has identified as being in need of resettlement and the number of places potential countries of resettlement have made available. In 2008, resettlement countries admitted only about half of the refugees that UNHCR recommended for resettlement. Of 121,000 refugees UNHCR presented for resettlement, only 66,000 were admitted, of whom the United States admitted 49,000 and EU member states only 4,500. The deficit can be clearly seen in refugees resettled from Turkey where UNHCR referred 7,500 refugees for resettlement in 2008 of whom about half, 3,800 were taken. EU countries took only 200 of those refugees.
The Role of Frontex
In October 2004 the European Council adopted a resolution to create an agency to coordinate the efforts of its member states to enforce the EU’s external borders. The agency, Frontex, became operational in October 2005 and has steadily expanded ever since.
Frontex has been actively working to stem the flow of irregular boat migrants from Africa to the EU by coordinating joint operations of its member states, but has been more successful in curtailing the number of arrivals to Spain than in reducing arrivals in the central Mediterranean. With the support of Frontex, the number of irregular boat arrivals to the Canary Islands, Spanish territory off Africa’s western coast, dropped by 74 percent from 2006 to 2008. Meanwhile, in Italy, boat arrivals increased by 64 percent from 2006 to 2008. It is difficult to weigh all the variables for shifts in irregular migration patterns, but the rapporteur for the Council of Europe Parliamentary Assembly’s Committee on Migration, Refugees and Population in commenting on the shift away from Spain in 2007 noted that “increased sea controls, including by Frontex, ...almost certainly had an impact, in particular during the periods the operations have been in operation.”
Off the coast of northwestern Africa, Frontex brought Mauritanian or Senegalese officers aboard the EU member states’ vessels in 2008 as part of Operation Hera, which diverted 5,969 migrants back to the African coast that year. Frontex maintains that the diversions were the responsibility of Mauritanian and Senegalese officials aboard the boats.
In the central Mediterranean, until June 2009, Frontex has been less successful in getting the EU member states to cooperate with each other, let alone with North African states. In 2008, Operation Nautilus focused on the flow of migration between North Africa and Italy and Malta but diverted no one back to North Africa. Its failure was attributed to “the difference of opinion concerning the responsibility of migrants saved at sea.” In 2009, the next phase of Operation Nautilus was delayed because Malta and Italy could not agree on the country responsible for disembarking persons rescued at sea.
On June 18, 2009, for the first time in its history, a Frontex operation resulted in the interdiction and push back of migrants in the central Mediterranean Sea to Libya. A German Puma helicopter operating as part of Operation Nautilus IV coordinated Italian coast guard interception of a boat carrying about 75 migrants 29 miles south of Lampedusa. The Italian Coast Guard reportedly handed the migrants over to a Libyan patrol boat, which took them to Tripoli where they were reported to have been “handed over to a Libyan military unit.”
Frontex vice-director, Gil Arias-Fernandez, commented favorably on this and other related operations: “Based on our statistics, we are able to say that the agreements [between Libya and Italy] have had a positive impact. On the humanitarian level, fewer lives have been put at risk, due to fewer departures. But our agency does not have the ability to confirm if the right to request asylum as well as other human rights are being respected in Libya.”
Aside from the obvious problem of saying that a return policy has had a positive impact without knowing whether returnees’ human rights are being violated, Arias-Fernandez expresses the flawed proposition that a potential humanitarian benefit (preventing the loss of life at sea) trumps a human right (the right to leave and the right to seek asylum). The Universal Declaration of Human Rights guarantees the right of any person to leave any country as well as the right to seek asylum from persecution in another country. People have the right to choose to risk their lives in the exercise of their human rights. They often do so, tragically, because they are escaping an even worse danger than the risks that lie ahead. It may put the person’s life at risk, but their choice should not be frustrated either by a government that prevents them from leaving or by a smuggler who forces them on a boat.
Notwithstanding the rights to leave and the right to seek asylum, governments are still duty bound to require all ships flying their flag to rescue persons in distress at sea—thus fulfilling the humanitarian imperative. Governments retain their rights under international law to control their borders, including their territorial waters, subject to their duties under international law, including refugee and human rights law.
 “2609th Council Meeting, General Affairs and External Relations, Luxembourg, October 11, 2004,” Council of the European Union, Press Release, PRES/04/276, October 11, 2004, http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/04/276&format=HTML&aged=0&language=EN&guiLanguage=en (accessed June 30, 2009).
In “Note from the Presidency to the Council. Subject: Draft Council Conclusions on initiating dialogue and cooperation with Libya on migration issues,” Council of the European Union, Doc no: 9413/1/05 REV 1, May 27, 2005, http://www.statewatch.org/news/2005/jun/eu-libya-draft-concl.pdf (accessed August 27, 2009); “2609th Council Meeting, General Affairs and External Relations, Luxembourg, October 11, 2004,” Council of the European Union, Press Release, PRES/04/276, October 11, 2004, http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/04/276&format=HTML&aged=0&language=EN&guiLanguage=en (accessed June 30, 2009).
“JHA Council adopts conclusions on the introduction of dialogue and cooperation with Libya on immigration issues,” Council of the European Union, Press Release, June 3, 2005.
The EU Justice and Home Affairs Council on February 19, 2004, adopted a regulation on the creation of an immigration liaison officers’ network. It refers to the “prevention and combating of illegal immigration, the return of illegal immigrants and the management of legal migration,” but contains no reference to the right to seek asylum. “2561st Council Meeting, Justice and Home Affairs,” Council of European Union, Press Release, 58314/04 (Presse 37), February 19, 2004, http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/jha/79117.pdf, page I, (accessed July 2, 2009).
“Draft Council Conclusions on initiating dialogue and cooperation with Libya on migration issues,” 9413/1/05 REV 1, May 27, 2005, http://www.statewatch.org/news/2005/jun/eu-libya-draft-concl.pdf (accessed July 2, 2009).
 “2664th Council Meeting, Justice and Home Affairs, Luxembourg, June 2-3, 2005,” Council of the European Union, Press Release, 8849/05 (Presse 114), June 2, 2005, http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/05/114&format=HTML&aged=0&lg=da&guiLanguage=en (accessed July 7, 2009).
 “Commissioner Ferrero-Waldner visits Libya to reinforce EU-Libya relations,” European Commission, press release, IP/09/227, February 6, 2009, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/227&format=HTML&aged=0&language=EN&guiLanguage=en(accessed July 30, 2009).Ferrero-Waldner visited Libya in February 2009 to conduct a second round of negotiations. During the visit, she reportedly announced a package of €20 million for assistance on migration enforcement. See “Libya: EU agrees cash to combat illegal immigration,” Euronews, February 11, 2009, http://www.euronews.net/2009/02/11/eu-agrees-cash-for-libya-to-combat-illegal-immigration/ (accessed July 16, 2009).
 “EU wants Libya to host asylum seekers,” Afrique en Ligne, July 22, 2009, http://www.afriquejet.com/news/africa-news/eu-wants-libya-to-host-asylum-seekers-2009072332179.html (accessed August 12, 2009).
 “EU urges Libya to work to stop illegal immigration,” Middle East Online, April 8, 2009, http://www.middle-east-online.com/english/libya/?id=31384 (accessed July 9, 2009).
 According to the European Commission, the aim of the negotiations is, inter alia, to establish dialogue and cooperation on international security, development, and human rights, to further develop trade and economic relations, and to cooperate in areas of common interest, including migration and energy. “Libya: Commission proposes negotiating mandate for a Framework Agreement,” European Commission, press release IP/08/308,February 27, 2008,
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/308&format=HTML&aged=0&language=EN&guiLanguage=en (accessed August 25, 2009).
 Letter from Jacques Barrot, Vice President of the European Commission, to Martin Pecina, Czech Minister of Interior and President of the European Council, May 27, 2009. Unpublished document on file with Human Rights Watch.
 “I respingimenti in mare “Rendono impossibile l’accesso alla richiesta di asilo politico,” Il Commissario del Consiglio d’Europa torna ad accusare il Governo italiano,” Immigrazione Oggi,July 2, 2009, http://immigrazioneoggi.it/daily_news/2009/luglio/02_2.html (accessed August 27, 2009).
 “Italy: Berlusconi Misstates Refugee Obligations,” Human Rights Watch news release, May 12, 2009, http://www.hrw.org/en/news/2009/05/12/italy-berlusconi-misstates-refugee-obligations (accessed August 27, 2009); and “Italy/Libya: Forced Return of Migrants Violates Rights,” Human Rights Watch news release, May 7, 2009, http://www.hrw.org/en/news/2009/05/07/italylibya-forced-return-migrants-violates-rights (accessed August 27, 2009).
 Nor did the Justice and Home Affairs Council conclusions from its June 4-5, 2009 meeting contain any criticism of Italy. “2946th Council Meeting, Justice and Home Affairs,” Council of the European Union, Press Release, 10551/09 (Presse 164) 4-5 June 2009, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/108356.pdf (accessed July 16, 2009).
 Eurpoean Council on Refugees and Exiles (ECRE), “Barrot wants reception points in Libya for asylum seekers,” Weekly Bulletin, July 17, 2009, http://www.ecre.org/files/ECRE_Weekly_Bulletin_17_July_2009.pdf (accessed August 27, 2009).
 See U.N. General Assembly, International procedures for the protection of refugees: draft resolution/Denmark, 12 November 1986, U.N. Doc. A/C.3/41/L.51. See also, Secretariat of the IGC, Working Paper on the Reception in Region of Origin, Geneva 1994. See also Human Rights Watch, EU – Managing Migration Means Potential EU Complicity in Neighboring State’s Abuse of Migrants and Refugees, Number 2, October 15, 2006, http://www.hrw.org/legacy/backgrounder/eca/eu1006/eu1006web.pdf (accessed August 27, 2009). See also “UK Asylum Proposal Denounced,” Human Rights Watch, News Release, February 8, 2001, http://www.hrw.org/en/news/2001/02/08/uk-asylum-proposal-denounced (accessed August 27, 2009).
 Tony Blair, Prime Minister of the UK, letter to Costas Simitis, Prime Minister of Greece, March 10, 2003, http://www.statewatch.org/news/2003/apr/blair-simitis-asile.pdf (accessed July 16, 2009).
 The Council of the European Union, Thessaloniki European Council 19 and 20 June 2003, Conclusion 26, Presidency Conclusions, 11638/03, October 1, 2003, http://register.consilium.eu.int/pdf/en/03/st11/st11638en03.pdf (accessed July 10, 2009).
 “Communication from the Commission to the Council and the European Parliament on the managed entry in the EU of persons in need of international protection and the enhancement of the protection capacity of the regions of origin. Improving access to durable solutions,” Brussels, com(2004) 410 final, June 4, 2004, http://www.unhcr.org/refworld/pdfid/4156e4ee4.pdf (accessed July 9,2009).
 Germany and Italy supported the Blair proposal, but Sweden, France, and Belgium opposed it on legal and humanitarian grounds. Ambrose Evans-Pritchard, “EU to hold Asylum Seekers in North Africa,” Telegraph.co.uk, October 2, 2009, http://www.telegraph.co.uk/news/1473177/EU-to-hold-asylum-seekers-in-N-Africa.html (accessed July 17, 2009).
See: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A6-2004-0051&language=EN (accessed July 17, 2004).
 “Determining an Approach for the External Dimension of the European Asylum Policy,” Informal Meeting of Justice and Home Affairs Ministers, January 27–29, 2005, http://www.eu2005.lu/en/actualites/documents_travail/2005/01/2701docstravailinfojai/infojaifr1.pdf (accessed July 17, 2009).
 “Lacrime, spinte e manganelli così l’talia respinge i disperati; Tripoli, ecco l’arrivo dei migranti rifiutati da Roma,”La Repubblica, May 15, 2009, p. 9. See also, “Save the Children Italia: ''Minori tra i migranti rinviati in Libia,'' June 22, 2009.
 Email to Human Rights Watch from UNHCR, July 14, 2009.
 The agency’s full name is “The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.” The name Frontex is a contraction of the French Frontières extérieures, for “external borders.” Frontex’s Management Board, comprised of one representative from each EU member state and two representatives from the European Commission, sets the agency’s program of work, among other functions.
 UNHCR, “Refugee Protection and international migration: A review of UNHCR’s role in the Canary Islands, Spain,” April 2009, para 22, http://www.unhcr.org/4a1d2d7d6.pdf (accessed July 17, 2009).
 UNHCR, “All in the same boat: The challenges of mixed migration,” http://www.unhcr.org/pages/4a1d406060.html (accessed June 12, 2009).
 Morten Østergaard, “Europe’s ‘Boat people’: Mixed Migration Flows by Sea into Southern Europe,” report of the Rapporteur to the Committee on Migration, Refugees, and Population, Parliamentary Assembly, Council of Europe, July 11, 2008. (“Europe’s ‘Boat People’”), p. 8, para. 24.
 “Hera 2008 and Nautilus 2008 Statistics,” Frontex, news release, February 17, 2009, http://www.frontex.europa.eu/newsroom/news_releases/art40.html (accessed July 10, 2009).
 “Go ahead for Nautilus 2008,” Frontex, news release, May 7, 2009, http://www.frontex.europa.eu/newsroom/news_releases/art36.html (accessed July 10, 2009).
 At the end of April 2009, they reportedly agreed to defer to the host country’s (Malta) interpretation of the relevant law “Rescued Immigrants to disembark at ‘closest safe port,’” Times of Malta, April 26, 2009, http://www.timesofmalta.com/articles/view/20090426/local/rescued-immigrants-to-disembark-at-the-'closest-safe-port’ (accessed April 28, 2009).
 “Immigration: 76 Migrants Sent Back to Libya,” ANSAmed, June 19, 2009, http://www.ansamed.info/en/news/ME03.@AM45395.html (accessed August 27, 2009). Also, Karl Stagno-Navarra, “Frontex Handover of Migrants to Italy Results in Forced Repatriation,” Malta Today, June 21, 2009, http://www.maltatoday.com.mt/2009/06/21/t8.html (accessed July 17, 2009).
Universal Declaration of Human Rights articles 13.2 and 14.1. GA res. 217A (III), UN Doc A/810 at 71 (1948).
United Nations Convention on the Law of the Sea, adopted December 10 1982, United Nations, Treaty Series, vol. 1833, p. 3, entered into force November 16, 1994, article 98, http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm (accessed August 11, 2009).