On Friday 9 April, Dr Patricia Mallia, lecturer at our University launched her recent publication entitled Migrant Smuggling by Sea. This event, which I had the pleasure to host at the Auberge d’Aragon, effectively brought to the fore the importance of this subject in a fast developing legal world. The panel, along with Dr Mallia herself, was honoured by the presence and contribution of Prof. David Attard who has, through his active academic work for the past years, managed to attract new converts to his numerous proposals. Euro parliamentarian Dr Simon Busuttil, was another honoured guest who is clearly proving himself more than worthy of the position he occupies, gathering political and legal clout within the European Parliament environment.
These three contributions made us all reflect on what the stakes in this subject actually are. Their learned and intelligent thoughts made me reflect on what I have been accustomed to do in my daily work as minister responsible for developments in this field. Dr Mallia’s excellent work made me better appreciate that from a legal viewpoint, migrant smuggling is among the most dynamic and fast-developing areas within the European and international scenarios. She has brought to light the manifold legal difficulties national governments face when they transpose and implement public international law, European Union law and national law, only to find them inadequate to deal with the human tragedies faced on practically daily basis.
Everyone agrees that as criminal activities based, to varying degrees, on deceit and abuse, human smuggling and trafficking are to be unreservedly condemned and curtailed. However, there are no hard and fast rules for dealing with their consequences, except perhaps for the rules of common sense. Malta has been particularly exposed to the consequences of human smuggling activities taking place well outside our shores. Since 2002 the authorities, as well as the country as a whole, have had to deal with mixed flows of migrants as a result of such smuggling activities, which flows included persons who were found to be eligible to refugee or subsidiary protection, as well as others who were not eligible to any form of international protection. It so often happens that people are unable to draw the relevant distinctions, and to realise that in fact the migrants who enter Malta illegally do not constitute a single group. Moreover, Malta and other Mediterranean States have had to face the physical and human impossibility of exercising border control procedures on the high seas, while several were losing their lives despite all the efforts made to prevent this.
If people are in danger of losing their lives because their vessel is sinking you simply have to do the saving first and ask the questions later. You do not stop to enquire whether their voyage was arranged by a smuggler, nor do you ask whether they have a passport or travelling document, or whether they have enough money to support themselves. You just carry out the rescue operation.
The crucial point is that in today’s migration scenario the protagonist is the individual human being, rather than national governments. Although this concept is not, in itself, new to the legal framework, it was hitherto only applicable with respect to a strong concept of citizenship. Today some of the rights previously associated with citizenship, at any rate within the context of European law, are being extended to third country nationals. Evidently, the extent to which such statement is relevant is dependent on the legal status of the third country nationals in question, but it is true in respect of beneficiaries of international protection, who in Malta’s case start off as migrants reaching the country on board the familiar boats.
The extension of certain rights to third country nationals de facto implies that such persons who find themselves in Malta are entitled to file constitutional cases based on fundamental human rights, to file an application for international protection, as well as to demand certain services. This would truly constitute a revolution in the mind of someone as Hugo Grotius, the founder of public international law. But this is the new frontier which has established itself in this dynamic field of law.
The ‘revolution’ is of course not over, as developments within the EU are set to proceed apace through instruments such as the Stockholm Programme.
Carmelo Mifsud Bonnici is Justice and Home Affairs Minister