Ranier Fsadni
Ruling waves, waiving rules
Italy's forced repatriations of immigrants to Libya have disturbed former President Eddie Fenech Adami, on human rights grounds, while they have been supported by the government and even triumphantly greeted by others as vindicating the approach proposed by the Labour Party and others. Who is right?
International law has to be the starting point. From this perspective, three features of Italy's actions deserve attention. First, the immigrants are not being interdicted in Italian waters. Thus far, they were stopped in international waters; in future interdictions may take place in Libyan waters, with permission.
This feature is a crucial one at law. Immigrants who enter territorial waters have as good as entered the country. Once they have done so, they have to be given the opportunity to request asylum. They cannot simply be expelled. Even the hard-line Italian Minister for the Interior, Roberto Maroni, who is vaunting the repatriations as a historic turn for Europe, has conceded that immigrants who manage to enter Italy illegally will remain in Italy until their rights are determined.
Second, the Italian vessels have not taken the immigrants on board. If they had, the immigrants would have been within Italy's jurisdiction and therefore under the protection of the Geneva Convention, which Italy has of course signed.
Whether Italy then could simply repatriate them to Libya is open to legal argument. The US, which interdicts Haitian immigrants in international waters, processes requests for asylum on board. It repatriates those whose case is rejected (the overwhelming majority). The US argues that its forced repatriations are not bound by laws covering national territory.
Still, the US method has aroused much criticism, not least in Europe. Moreover, the fact that emigration from Haiti is widely acknowledged to be primarily economic probably puts less pressure, from human rights watchdogs, on the US than there would be on Italy, since a much larger proportion of immigrants from Africa have a right to humanitarian status.
Third, the collaboration of Libya is essential. Without it, interdicted immigrants could not be repatriated.
From these details, it is evident that the Italian authorities are doing their best to appear to be operating within international law. Foreign Minister Franco Frattini has gone further. He has declared that the European Pact on Immigration and Asylum (much criticised as weak by Labour) gives Italy the duty, not just the right, to protect Europe's external frontier in this manner. He is referring to the pact's section II (b).
That section also makes reference to the importance of readmission agreements "with those countries with which it is necessary" so that member states can have "the legal instruments" to repatriate immigrants. "The legal instruments": it is striking that, where the law is not clear, Italy is doing its best to play it safe - safe, at least, with respect to the letter of the law, if not with human lives. Interdicting immigrants in Libyan territorial waters and not taking immigrants aboard Italian vessels (unless necessary because of distress) makes it legally more secure to repatriate immigrants to Libyan soil, so Italy has sought to do both.
This emphasis on respecting at least the appearance of legal obligations shows how grotesque it is for anyone to suggest that Italy's current approach vindicates the positions taken by Labour and the likes of Jeffrey Pullicino Orlando. Both of the latter have proposed breaking the law. They wanted to waive the rules while Italy is seeking to rule the waves by the rules.
The Labour leader even suggested that, in the Pinar case, breaking the law would have been ethically correct. Dr Pullicino Orlando, in his turn, suggested what even the far-right Roberto Maroni has balked at: towing out to sea immigrants who have entered national territory. (And although Dr Pullicino Orlando claimed that his proposal was almost identical to the US policy towards Haiti, it is in fact completely different in every crucial feature.)
Does Italy's respect for the letter of the law justify the Nationalist government's support for its actions? Strong protests have come from the Human Rights Commissioner of the Council of Europe and the UNHCR, since bona fide asylum seekers have not been given the opportunity to make their case.
Mr Frattini has said that immigrants will have the opportunity in Libya, where the applications can be processed by human rights organisations. Italy's and Malta's interior ministers will be meeting in Libya soon to discuss (it seems) this point among others.
Much depends on what arrangements are made in practice. Currently, no country other than Libya would be obliged to host anyone with special humanitarian status if the application were filed in Libya, while the latter has yet to sign the Geneva Convention.
Dr Fenech Adami's unease is therefore justified. One can only hope that the government is privy to information that warrants its confidence that its stated ethical commitments will not be jeopardised by Italy's repatriation policy.
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Alfred Farrugia
May 16th 2009, 19:26
Mr. Fsadni’s analysis is good in spite of a number of inaccuracies and convenient selectivity. Given his expertise can he provide us with some suggestions of his own on how to resolve this problem? What we need is to pool all the resources of those who can contribute to the solution of this problem, and not assume a defeatist attitude seeking to tie our own government’s hands, without suggesting any possible counter measures.
If the most powerful and richest country in the world with immense land area and resources feels the need to take action against illegal immigration, why is Malta expected to just look and do nothing?
“Much like the former Bush Administration, the Clinton Administration cited the exodus of Haitian boat people as a reason for suspending refugee processing. …
Since enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (P.L. 104-208), aliens arriving in the United States without proper immigration documents are immediately placed in expedited removal….
This notice concluded that illegal mass migration by sea threatened national security
because it diverts the Coast Guard and other resources from their homeland security
duties. ….”
http://fpc.state.gov/documents/organization/47153.pdf
Ranier Fsadni
May 16th 2009, 10:21
@ Alfred Farrugia
Of course the US also patrols its territorial waters, just as Italy will continue to do despite the agreement with Libya. They would be insane not to. Some irregular immigrants are bound to manage to enter territorial waters and it is important for them to be caught before they land and vanish without trace. What the notice you quote from declares, however, is simply that the US is extending its policing authority over vessels with flags, which otherwise, by law, would have right of passage (since they have state flags). Should irregular immigrants be found on board, then they would then need to be processed according to the law. The US declared its intentions precisely to do things according to the law, and not to suspend its legal obligations. Incidentally, none of this need apply in the Mediterranean case since – so far – boats with immigrants carry no flags; they are stateless; so can be stopped even in international waters, without the legal obligations that come with stopping them in territorial waters.
Alfred Farrugia
May 15th 2009, 20:56
The U.S. does not operate solely in international waters. On the contrary, on September 2, 1999, it doubled its contiguous zone.
“Specifically, the Vice President announced that the United States is strengthening its ability to enforce environmental, customs and immigration laws at sea by expanding a critical enforcement zone to include waters within 24 nautical miles of the U.S. coast. A proclamation signed today by President Clinton formally extends the U.S. "contiguous zone" from 12 to 24 miles, doubling the area within which the Coast Guard and other federal authorities can board foreign vessels and take other actions to enforce U.S. law.
… Within the contiguous zone, a nation can act to prevent violations of its environmental, customs, fiscal, or immigration laws, or to apprehend vessels suspected of violating them.
Within the extended contiguous zone, the Coast Guard may now board and search a foreign vessel suspected of smuggling drugs, carrying illegal immigrants, polluting the ocean, or tampering with sunken ships or other underwater artifacts, without first obtaining permission from the country where the vessel is registered. Previously, such action could be taken only within 12 miles of the coast.”
http://clinton4.nara.gov/CEQ/990902a.html
Ranier Fsadni
May 15th 2009, 19:15
In an earlier column (5 March, see link below), which focussed on Jeffrey Pullicino Orlando’s proposal, I considered both the Cuban case and the main variations in the US policy towards Haiti since 1981 (including the use of bases like Guantanamo). Within the constraints of the word limit, I showed why even these cases are significantly different from what Dr Pullicino Orlando proposed. The current US policy towards Haiti is to interdict at sea and to escort the immigrants back to Haiti, with the cooperation of the Haitian authorities. http://www.timesofmalta.com/articles/view/20090305/opinion/national-security-by-voodoo
Alfred Farrugia
May 15th 2009, 17:08
Mr. Fsadni’s statement that the U.S. interdicts Haitian immigrants in international waters and processes requests for asylum on board is only partly true. At times pre-screening took place in Guantanamo, Cuba. “The former Bush Administration lobbied for a regional solution to the outflow of Haitian boat people, and the United Nations High Commissioner for Refugees (UNHCR) arranged for several countries in the region — Belize, Honduras, Trinidad and Tobago, and Venezuela — to temporarily provide a safe haven for Haitians interdicted by the Coast Guard.” “On May 24, 1992, citing the surge of Haitians that month, then-President Bush ordered the Coast Guard to intercept all Haitians in boats and immediately return them without interviews to determine whether they were at risk of persecution.” Haitians were treated differently at different points in time as may be found in the following report of January 2005 submitted by the CRS to the U.S. Congress. Could Dr. Jeffrey Pullicino Orlando have referred to some particular cases or to Cubans? http://fpc.state.gov/documents/organization/47153.pdf http://www.ilw.com/immigdaily/news/2007,0628-crs.pdf These reports consider national security risks, among other issues. And how about the news of February this year, in the following link? http://www.wsws.org/articles/2009/feb2009/hait-f20.shtml
edwin formosa
May 15th 2009, 04:54
U jekk Malta, bla forza militari, navali jew ta l-ajru, tikser il-ligi internazzjonali, x'jibqalha bhala difiza ?
Joseph Ellul
May 14th 2009, 23:52
@R. Fsadni. Just stop using the President as an argument. Now read this: In the 50's Malta was a poor place and it was a common practice for vagabonds to knock on doors for alms. My mother never refused these people a piece of bread or some food. In one particular instance an old women used to push herself in the house and sit on the chair while saying that she was dizzy and tired. My mum gave her taosted bread and a glass of tea. This happened several times until one day my dad noticed that some things had gone missing from the house. At first us kids got blamed but eventually my dad tricked the culprit and found out that it was the old women in the "ghonnella". From that day my mums generosity was limited to outside the door.
There is a lesson in this and I hope that MR Fsadni and the likes of him can make out what this lesson is. If they cannot then they have no right to put their case for these illigals.
Alfred Farrugia
May 14th 2009, 20:38
Why is Mr. Fsadni completely ignoring the U.S. wet-foot dry-foot policy as applied to Cubans?
http://www.usimmigrationsupport.org/wetfoot-dryfoot.html
Does this policy conform to the 1951 Refugee Convention? The U.S. is a State party to the Convention.
Louis Gialanze
May 14th 2009, 17:43
We are eternally grateful to EFA for having saved democracy in the past, however this country is not the personal fiefdom of any politician or elder statesman either. The people of Malta in their absolute majority are against opening our country to multi culturisim as proposed by liberalists who are merely a tiny minority. If anything we ought to be grateful to Silvio Berlusconi for having showed us the way forward !
louise vella
May 14th 2009, 16:20
Mr Fsadni writes: "International law has to be the starting point." He is completely wrong. The starting point and the finishing point have to be Malta's national interests and the will of the Maltese people. Mr Fsadni should not be allowed to forget this.
lgalea
May 14th 2009, 14:37
Perhaps you have missed the fact that it was Eddie Fenech Adami who signed away the reservations that Dr Gorg Borg Olivier had made to the 1951Refugee Convention.
Perhaps you have missed the fact that it was Eddie Fenech Adami who betrayed Malta and the Maltese people to obey the EU petty dictators.
Perhaps you also missed the fact that the vast majority of the Maltese citizens no longer care a hoot about the illegal immigrants who are invading Malta and imposing themselves upon us.
Perhaps you also missed the fact that the Refugee Convention is way past its use-by date and is being abused left, right and centre by the illegal immigrants.
If they have wars in some countries in Africa there are many countries where there is no war, including Libya itself. So why the hell do we have to lump the illegal immigrants being dumped upon us when we were never their colonizers and they have been living for years, even up to 10 years in Libya according to the Refugee Appeals Board report?
Adriano Spiteri
May 14th 2009, 14:20
I completely disagree with Mr Fsadni.
He stated that JPO and the PL wanted to waive the rules. BUT what is wrong with that? Are we guarding the interests of the Maltese or those of the African illegals who should know beforehand what risks they're taking?
Fenech Adami's unease cannot be justified for we can never accept that which is illegal by making it legal thanks to something we call 'International Law'. At the end of the day it is the People who decide not an opinion maker nor an ex top-brass.
Sandro Pace
May 14th 2009, 13:29
You are Wrong. The Italians took immigrants back on Italian warships.
http://www.timesofmalta.com/articles/view/20090507/local/rescued-migrants-taken-to-libya
But apart from all the legal hogwash, there is the logical one, which your mind fail to digest.
When circumstances are allowed not to respect limitations of a country, it cannot be expected to observe obligations. That is Dr. Muscat's gist. And all the other 'Action' voices.
If it is enough for Italy, so it is for Malta.
Many people who lived life 'to the letter' in face of abuse, lived only to regret it.