The proposal to tow incoming immigrants back into international waters and send them on their way to Libya is "facile at best" and not a realistic solution to the challenge facing Malta, according to human rights lawyer Katrine Camilleri.
"I don't know how someone can think it's possible in a democratic society," she told an audience of students during a University debate on illegal immigration.
During the debate she refused to say that the situation had reached a point of crisis and said that, although the influx of immigrants had increased, no change could ever justify the violation of human rights.
The towing-back suggestion was made by Nationalist MP Jeffrey Pullicino Orlando in an opinion article published on The Times, echoing a popular public sentiment. He wrote that "...when the weather is fair and at the earliest opportunity, they should be towed back into international waters in the direction they came from. Every consideration must be taken to ensure their safety but we cannot be expected to shoulder a responsibility that is physically impossible for us to bear".
Dr Camilleri is adamant that sending illegal immigrants back to Libya is not an option because there is no guarantee they will find effective protection there or that they will not be returned to their country of origin.
"It is our duty, as an EU member, to process all asylum seekers and find out whether they are eligible for protection. We cannot send them all back without allowing them to make an application for asylum or examining their claims because some of them might not be genuine. It is simply against the law and against the basic principles of human rights," she said.
She confirmed that Malta, as an EU member state, could not just withdraw from its obligations and responsibilities under the Dublin Convention and other EU directives or from the Geneva Convention, as has also been suggested.
Dr Pullicino Orlando disagrees and argues that, since the immigrants are not coming from their home country, they are not eligible for protection in Malta.
"The argument that these people are coming here specifically to escape terror and persecution does not hold water, thus exonerating us from the obligations of the Dublin Convention (article 31)," he wrote, adding that most of them have been living and working as immigrants in Libya for a number of years.
When asked to react to this statement, Dr Camilleri said Dr Pullicino Orlando was probably referring to the 1951 Geneva Convention's article 31 which calls on states not to impose penalties on account of the illegal entry or presence on refugees "coming directly from a territory where their life or freedom was threatened..."
She pointed out, however, that his argument did not make sense because the Convention clearly added that refugees were not required to have arrived directly from their country of origin.
In fact, article 31 also applies "to persons who have briefly transited other countries, who are unable to find protection from persecution in the first country or countries to which they flee or who have 'good cause' for not applying in such country or countries".
She referred to the interpretation given to this article by UNHCR in their 1999 Guidelines on the Detention of Asylum Seekers, where it is stressed that the expression "coming directly" in article 31 covers not only people who enter the country of asylum directly from their country of origin but also those who have briefly transited through other countries "where their safety and security could not be assured".
Malta, she said, should continue focusing on strengthening existing structures to ensure that asylum seekers were able to find the protection they needed while pushing for more effective responsibility-sharing within the EU.
She stressed that, although not all immigrants were eligible for legal protection, they all had a valid reason for leaving their country and should all be processed under humane conditions.
cperegin@timesofmalta.com