As Malta and the rest of southern Europe braces itself for what is expected to be a particularly busy summer for irregular migration, efforts by Malta and Frontex – the EU’s border control agency – to stem the flow of migrants from the North African coast could be foiled this year by yet another Libyan refusal to allow sea patrols close to its shores.

With most land migration routes from hard-hit Central and East Africa winding through the Sahara and ending at the Libyan coast, from where passage to Europe is sought, the issue of patrolling the Libyan coast is of the utmost importance.

If Libya were to allow such patrols near its coast, any migrant boat intercepted while still in Libyan territorial waters would be returned to Libya. But once outside Libyan waters, a migrant boat becomes subject to the sometimes hazy international laws of the sea, laws that can become particularly problematic when applied to the rescue or interception of migrant boats in the Mediterranean.

And while diplomatic negotiations between the Malta, Italy, the EU and Libya are undoubtedly underway, discussions on a technical, brass tacks level are still to bear fruit.

With joint patrols between Malta and Frontex expected to start in the very near future, a Frontex spokesperson speaking to The Malta Independent on Sunday commented, “We are trying to approach Libya on a technical level in order to talk about possible areas of cooperation between Frontex and the Libyan authorities responsible for border protection.

“Our executive director was mandated by the management board to start such talks, but at the moment we don’t have any substantial outcomes from this work.”

Libya has long resisted the idea of Frontex patrolling near its coast but with thousands of irregular migrants leaving Libyan shores for Europe each year, the EU has been aiming to have Frontex patrols move closer to the Libyan coast so as to cut off migrants’ voyages nearer their point of departure.

With its 1,770-kilometre coastline, Libya is a significant staging post for African migrants seeking entry into Europe, while the country’s 4,400 kilometres of desert borders are also problematic. What has been identified as a growing east African migration originates in the beleaguered Horn of Africa – mainly in Eritrea, Somalia, Ethiopia and Sudan – feeds mainly into Libya across its desert borders. Of the 1,700 irregular migrants who landed in Malta last year, close to half originated from those very four countries – Eritrea (318), Ethiopia (143), Somalia (311) and Sudan (67).

Last year Frontex had coordinated joint maritime patrols with Malta. Originally planned as Operation Jason, it was expected to have deployed patrols just north of Libyan waters but plans were stalled after Libya objected to patrols in its waters. If Libya were to agree to open its waters, the patrols would be legally permitted to intercept migrant boats in Libyan waters and force them back to shore.

But with Libya having refused such exercises, the operation was renamed Operation Nautilus and operated in international waters further from the shore, where free navigation is permitted, even for migrant boats. This year Malta has applied to carry out joint patrols of the southern Mediterranean, to be known as Nautilus 2, in conjunction with Greece and is awaiting European Commission approval for the initiative.

At a tripartite meeting between Malta, Libya and Italy last November, Libyan leader Muammar Ghaddafi appeared to have changed his stance in favour of such patrols, as long as they are entrusted to Malta and Italy and that they are carried out with Libyan collaboration.

On the issue of Libya’s cooperation with the EU’s border control efforts, the Frontex spokesperson added, “Cooperation with Libya is not a prerequisite to start Frontex coordinated joint operation of surveillance. The only con is the operational area – if we do not have an agreement with Libya that we can move closer to the Libyan shore, we cannot go there.”

The interpretation of the international law of the sea is also somewhat ambiguous when it comes to migrant boats, as evidenced by the well-documented case last year when Malta was involved in a diplomatic standoff with both the Spanish government and the UNHCR over the migrants picked up by the Spanish trawler, the Francesco y Catalina.

As far as the patrols of the Mediterranean are concerned, the operational implementation of the international law of the sea has proved somewhat problematic as far as intercepting migrant vessels is concerned, and in many instances presents something of a Catch-22 situation.

Mediterranean maritime migration is a mixed phenomenon in that there are both illegal migrants – many of whom hail from North African States such as Egypt, Morocco and Tunisia – with no particular need for protection, as well as refugees in real need of international protection and it is crucial that such individuals are identified as early as possible.

The European Commission highlights a number of issues meriting elaboration and clarification when it comes to such rescue and interception operations. First is the extent of obligations under the principle of non-refoulement, which deals not returning refugees to places where their lives or freedoms could be threatened such as war zones and disaster areas.

The second issue is the determination of the most appropriate port for disembarkation following a sea rescue or interception, as well as the related issue of protection responsibilities between countries taking part in such operations. Finally, there is the need for a more accurate determination of the correct modus operandi when intercepting vessels carrying, or suspected of carrying, illegal immigrants bound for the European Union.