Once more, a proposal for a disembarkation mechanism for migrants rescued in the Mediterranean has been ill-received, as only three further EU Member States have demonstrated willingness to join a relocation scheme proposed by Germany, France, Italy and Malta in October’s Justice and Home Affairs Council. Amongst others, the four Member States met with a negative reaction from the Netherlands, that rebuked the deal for failing to provide a ‘structural solution’ to rescue problems in the Mediterranean. However, in light of the current deadlock at EU level in the negotiations on the allocation of responsibility for asylum claims, including common rules on disembarkation, the Dutch rejection of anything but a ‘structural solution’ appears to be opportunistic. By obstructing small steps forward in the cooperation between EU Member States, it seems to contribute to a self-fulfilling prophecy. Rather, the legal and political benefits of a common disembarkation mechanism outweigh the arguments advanced against such a scheme.

Disengagement in the Mediterranean

The four Member States proposed a relocation mechanism against the background of recurring political stand-offs and subsequent ad-hoc solutions regarding the disembarkation of people rescued by NGO vessels in the Mediterranean. In particular, the refusal to authorise the disembarkation of saved migrants by Italy, and to a lesser degree Malta, resulted in a situation where 25 NGO ships were left stranded for an average of 9 days since the beginning of 2018. The underlying reason for these southern Member States to ‘close their harbours’ remains the allocation of asylum claims under the EU Dublin Regulation, which lacks European responsibility-sharing and allegedly overburdens countries at the external European border due to its first country of entry rule. At the same time, the scaling down of search and rescue (SAR) activities by the EU and its Member States has meant that SAR operations are increasingly carried out by NGOs. The suspension of naval patrols of EU Operation Sophia, that has rescued over 40,000 migrants in the Central Mediterranean since 2015, is the most recent example. Whereas under international law the obligation to rescue and bring to a place of safety is undisputed, the question of which country should allow for disembarkation remains unclear and arguably remains outside the scope of EU law. While the Central Mediterranean Route has become the most lethal way to Europe, the EU and its Member States have not managed to set up any effective form of disembarkation scheme.

A predictable temporary solidarity mechanism

In this context, last September the new Italian government along with Germany, France and Malta drafted the foundations of a 'predictable temporary solidarity mechanism'. This scheme would put an end to lengthy ad-hoc negotiations accompanying blocked disembarkations, as rescued migrants would be swiftly divided over the participating Member States. Admittedly, the envisaged mechanism offers no ‘structural solution’ to the rescue difficulties in the Mediterranean.

First, it would cover exclusively the distribution of migrants rescued by SAR vessels on the Central Mediterranean Route, i.e. those seeking to reach Italy and Malta. In 2019 this amounted to a mere 14% of total migration flows to Europe by sea. The proposal hence tackles only a small fraction of the problem.

Second, the overall number might be even lower, as during the negotiations on the relocation scheme Germany and France already indicated they would only accept the relocation of asylum seekers with a high probability of receiving international protection.

Third, the success of a voluntary and non-legally binding relocation mechanism strongly depends on the consistent participation of as many Member States as possible. The difficulties of both the discriminative pre-selection of asylum seekers and enforcing relocation have become apparent in light of the 2015 EU emergency scheme, under which by 2018 a mere 22% of the originally envisaged number of asylum seekers had been relocated from Italy and Greece.

Nonetheless, these drawbacks do not justify non-participating Member States burying their heads in the sand. There are good reasons why a temporary mechanism should have been embraced as a first step towards a more structural EU approach on disembarkation.

The feasibility of the temporary mechanism

From a legal point of view, the proposed relocation mechanism finds a basis in the so-called ‘humanitarian clause’ laid down in Article 17(2) of the Dublin Regulation III. The scheme could therefore have simply been adopted without structural changes to the current legal framework. Moreover, it is exactly the dysfunctional nature of previous relocation mechanisms that should spur Member States to seek alternative ways to create a real meaning to solidarity and responsibility-sharing, upon which EU asylum cooperation is based. By participating in a relocation scheme, Member States could finally go beyond financial solidarity and move towards ‘physical’ solidarity.

From a political point of view, the scheme pitched by the four Member States mirrors the current lowest common denominator in the Council, where discussions on the overhaul of Dublin and the allocation of responsibility for asylum claims have been stalled since 2015. It is exactly because the proposal does not constitute a ‘structural solution’ that it currently might be the most feasible option to break the stalemate in negotiations on the reform of the Common European Asylum System.

Finally, a predictable disembarkation mechanism would improve the somewhat fraught relationship between NGOs and Member States, including the Netherlands. On the one hand, the Dutch government has repeatedly condemned the presence of NGO vessels in the Mediterranean for facilitating the practices of human smugglers. This corresponds to other attempts to criminalise and restrain NGOs’ SAR activities, such as the 2017 EU-backed Italian Code of Conduct for NGOs. However, in reality there is no conclusive proof that NGOs represent a pull factor for migration and human smuggling. On the other hand, the hostile position towards NGOs has placed Member States in a difficult position with regard to their function as NGOs' flag state. Attempts of the Italian government to shift disembarkation obligations to the flag states of NGO vessels has led to tensions with other Member States.

A missed opportunity

A common relocation scheme would have decoupled disembarkation and the responsibility for asylum claims. As such, it would have responded to the concerns of coastal states such as Italy, prevented political stand-offs and ensured swift care for people rescued at sea. It could have been a modest, but important instrument to rebuild trust and gain experience with alternative models of responsibility-sharing. Shying away from a temporary disembarkation mechanism like the one proposed may therefore have weakened prospects for a more ‘structural solution’ to disembarkation.

This blog is part of the project: Mobility and Security in Europe