The position taken in the controversial set of new Frontex guidelines goes beyond the position at international law, according to Patricia Mallia, the author of a new book entitled Migrant Smuggling By Sea: Combating a Current Threat to Maritime Security though the Creation of a Cooperative Framework.
Dr Mallia, a lecturer and head of the Department of International Law at the University of Malta, told The Malta Independent on Sunday in an interview that the book – which forms part of a series, Publications on Ocean Development, published in Holland by Martinus Nijhoff/Brill – started off as a doctoral thesis.
She had begun by looking into migrant smuggling, drug smuggling, piracy and weapons of mass destruction. But what is particularly interesting about migrant smuggling, said Dr Mallia, is that because human principles are involved, it is the only maritime threat having an amalgam of laws surrounding it and for this reason it is particularly challenging.
The subjects of this crime, she explained, are human beings; they are individuals with rights – whether they are they refugees, asylum-seekers or economic migrants. Migrants are the victims of the crime, but you cannot deny the fact that they will still have broken border rules. This is one of the areas in which the overlap of various laws is manifested: principles of state sovereignty, the right of a state to control its borders and considerations of human rights, refugee law and other humanitarian principles must be applied contemporaneously.
She points out that there is a difference between migrant smuggling and trafficking in human beings: smuggling presupposes the smuggled person’s consent, while trafficking implies that a person’s consent has been vitiated by some manner of fraud. Having said this, the crimes are related and often overlap.
However, they are regulated separately at international law, as separate protocols to the United Nations Convention on Trans-national Organised Crime (2000).
As she explained in her book: “A number of rules of international law governing the oceans were created at a time far removed from the challenges of the present day. The principle of the freedom of the high seas and its corollary of flag state exclusivity are archetypical examples of this.
“Today these rules may appear to be obstacles in the effort to combat a number of contemporary maritime threats such as migrant smuggling by sea.”
In the book’s foreword, Dr Mallia’s tutor, Oxford professor Vaughan Lowe, described it as an “excellent study… it examines the range of legal responses to the problems and the practical steps that are being taken, both nationally and through international cooperation, to create a legal framework that goes some way towards reconciling the exigencies of twenty-first century policing with the antique legal principles that we have inherited and still (for the moment at least) appear to cherish.”
The author therefore deals with both the powers and the rights of states to control their borders and protect their security, as well as their duty to protect and ensure the protection of individuals.
Dr Mallia looked into the way the EU, the USA and Australia have dealt with this threat. She found that certain models of cooperation show that the existing framework of international law can effectively be used to fight the crime, as long as there is concrete cooperation.
Based on her findings, she insisted that effective cooperation and coordination are the only ways to fight migrant smuggling.
Speaking about the EU, Dr Mallia said that concrete and predictable solutions are absolutely necessary.
On the recently approved Frontex guidelines, apart from the fact that the wrong legal basis was used to get them through, the position taken in the guidelines goes beyond what is stipulated in international conventions, namely the International Maritime Organisation’s Safety of Life at Sea Convention (SOLAS) and Search and Rescue (SAR) Convention.
While regional laws can happily exist alongside general international law, in this area – where predictability of action is of the utmost importance – this may well have not been the most effective route to adopt.
Of course, it is undeniable that a moral and legal duty exists to rescue those in distress at sea; however, just as cooperation is of the essence in effecting the duty of rescue, so must this exist in effecting the subsequent duty of disembarkation.
In this regard, the guideline stipulating that those rescued are to be disembarked in the country hosting the particular Frontex mission is clearly detrimental to Malta and flies in the face of the declared solidarity that is meant to exist between EU member states.
In the conclusion to her book, Dr Mallia writes: “Cooperation thus lies at the core of this study… At all times it should be recalled that responsibilities lie with all the states concerned; the answer to the problem of migrant smuggling is not to be found at the expense of any one state’s resources and security.”