Blog AnalysisBorders Immigration Asylum

What happens to the refugees rescued in the Aegean Sea? It's a little complicated …

FGS Bonn is the flagship of NATO's "deployment" in the Aegean Sea (credit: NATO)
FGS Bonn is the flagship of NATO's "deployment" in the Aegean Sea (credit: NATO)

(B2) In the Aegean Sea today are the five ships deployed by NATO and those operating in Frontex's Operation Poseidon. Even if this is not their primary mission (for NATO ships in particular), they are required, when faced with ships in distress (eg refugee ships), to come to their aid, to recover the shipwrecked. But then what to do with recovered people. It will be in the direction of Türkiye, we hear. Is it that easy? B2 put the question to Jens Stoltenberg, the head of NATO. And his answer is at least a little more nuanced... Read!

Turkey or not Turkey?

Jens Stoltenberg implicitly confirmed, when we questioned him on Thursday, during his visit to the European Commission, that it was a little more complex than some say. " People who are rescued at sea can be brought back to Turkey. But, at the same time, what we do must comply with international and national regulations. We have always said it. Ultimately, it is indeed a national responsibility for the countries that supply ships to the Aegean Sea. »

What does that mean ?

This answer gives the full complexity of the problem. There is a possibility given by the Turks to take back the refugees picked up by the ships. To study closely. This will be settled by the agreement negotiated by the European Union and Turkey. But in any case there are other rules that come into play, in particular the way in which a State considers that a boat flying its flag is an integral part of its national territory, the way in which it considers that national law Community law, international law, etc. apply to this vessel, its way of interpreting the international refugee convention, such as the nature of the captain's power (does he have judicial or similar power or not? ?) Etc. In the end, indeed, as the head of NATO says, it is the flag state that decides.

What is the international rule (law of the sea)?

According to the law of the sea, the captain who recovers shipwrecked persons has the obligation to get off to a safe place as soon as possible ". A concept that can be interpreted differently depending on the circumstances.

What are the rules for welcoming refugees?

The 1951 Refugee Convention in particular prohibits non-refoulement (Article 33). A principle transcribed into European law which has the force of law and applies to all ships flying the national flag.

(excerpt from the regulation of 15 May 2014 on the surveillance of the external maritime borders in the context of a Frontex operation) In accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council (3) and the general principles of the law of Union, any measure taken during 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.

Is this an absolute rule?

Not quite. The right to asylum is not an absolute obligation in the host country within the meaning of international law. The principle of non-refoulement is to ensure that people will be able to benefit from international protection in the country concerned. But all this must be well weighed and analyzed beforehand. And on a case-by-case basis. Failure to take this individual notion into consideration could lead to a conviction in the courts.

What is the rule applied by Frontex?

It is clear, all the ships in operation for the Frontex agency are bringing refugees back to Greece. It is up to the Greek government to welcome them, to sort out asylum seekers or not, to investigate asylum applications or to expel non-accepted migrants to Turkey under the terms of the readmission agreement. Frontex ships are in fact acting on behalf of Greece and in its relief area. It is an identical rule that is applied in the Mediterranean by Frontex ships like those of the EUNAVFOR Med maritime operation (this time with a single direction: towards Italy).

Does the agreement between Frontex and NATO include this rule?

No. According to the spokesperson for the European Commission, whom I interviewed, the NATO-Frontex agreement does not contain a provision on refugees. This only emerges from the operational rules in force at NATO. The agreement signed between the European agency and the Atlantic Alliance only concerns the exchange of information and liaison officers and therefore does not extend the "Frontex" rule to NATO ships.

Is European law applicable in Greek territorial waters?

Yes. Territorial waters forming part of the territory of a State party to the Schengen area are subject to European law.

(excerpt from the regulation of 13 May 2014) The Member States and the Agency are required to respect the provisions of the asylum acquis, and in particular those of Directive 2013/32/EU of the European Parliament and of the Council (4) as regards applications for international protection lodged on the territory of the Member States, including at the border, in their territorial waters or in a transit zone.

And... in Turkish territorial waters?

No. But the European Convention on Human Rights (ECHR) as well as the international convention on refugees are applicable.

And on the high seas, what is the applicable rule?

The rule of the country that took in the castaways and the ECHR. The European Court of Human Rights (ECHR) has recognized its power of jurisdiction over all persons who are under the " control (of a state) on the high seas ". The provisions of the European Convention on Human Rights therefore apply to rescued persons who find a place on board a ship, the criterion of control seeming to be fulfilled. This is the famous judgment of the ECHR Hirsi Jamaa / Italy pronounced in 2012 precisely about asylum seekers intercepted by the Italian coast guard in the Maltese search and rescue zone (therefore outside Italian jurisdiction) and sent back in Libya, under the agreement concluded at the time between Rome and Tripoli.

In practice, how will this work?

If the refugees ask the captain of the ship to provide them with protection and take it upon themselves to formally request asylum in the name of the 1951 International Convention, this will pose a cascading series of legal problems for the captain. If it is in Greek territorial waters, it is rather complicated: national law (that of the boat) or Greek law (that of the waters) (1). Ditto if it is in Turkish territorial waters (with the rule of "recovery" from the Turkish authorities). If it is on the high seas, it is normally national law (if no other rule) applies. According to the "Dublin II" regulation, it is the first country to receive asylum seekers on its territory who must ensure their treatment... If they refuse, there is a good chance that the European Court human rights can be finally seized in case of refusal to grant the right of asylum.

Conclusion: go for a black red yellow flag!

If the smugglers are a little smart (and they are) and like a quick and well done business, they will rush their "goods" towards ships carrying a 'German' flag for example to directly apply for asylum in Germany. No need to tire yourself out going to Greece, crossing the Balkans, bumping into closed borders or circumventing barbed wire to get to Bad Reichenhall, the Austro-German border point. Long live FGS Bonn, the first floating hotspot 😉

And... good luck to the commanders of the ships on site

(Nicolas Gros-Verheyde)

(1) If one applies the criterion of control established by the European Court of Human Rights, it is the law of the flag State which could apply...

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).