Pushing back migrants to Libya, either directly or indirectly, is in breach of Malta’s international legal obligations as the country cannot be described as a ‘safe port of call’, according to a report published yesterday by the People for Change Foundation.
The NGO called on the Maltese government to respect the principle of non-refoulement, noting that the European Court of Human Rights had established there was a direct risk that migrants forced back to Libya would suffer “inhuman and degrading treatment”.
The report presents the final results of the Access to Asylum: A Human Right project in Malta, a 12-month research project which included legal analysis, desk research and a round table discussion with various stakeholders.
Patricia Cassar Torregiani, head of the Department of International Law at the University of Malta, noted that when Malta (and Italy) in August directed the shipmaster of the MV Salamis with 102 migrants on board to return to Libya, it translated into a de facto push-back and was therefore in direct violation of the countries’ obligations at international law.
“This approach has highlighted a worrying interpretation of a ‘place of safety’. This term does not only refer to the immediate physical safety of the individual but to a place where his or her human rights are protected.
“Libya is not a place of safety for any irregular migrant, and its readiness or otherwise to receive migrants is irrelevant.”
Was the shipmaster correct in ignoring two sovereign states?
“He had the obligation to obey sovereign states but also that of protecting human rights.”
Had the shipmaster followed Malta’s instructions and proceeded to disembark the migrants in Libya, Malta could be held liable for ‘wrongful acts’ committed by the shipmaster under an Article on State Responsibility.
The NGO’s director Jean-Pierre Gauci added that the report also identified the lacuna in the current Search and Rescue (SAR) regime, which fails to specify a default state of disembarkation.
Deadlocks such as those occurring with the Salamis rescuees further demonstrate the urgent need to designate a default state of disembarkation or to develop a regional framework to strengthen the cooperation and coordination among states.
In her opening address, Social Dialogue Minister Helena Dalli said that the government recognised that Malta had both humanitarian and legal obligations with regard to migrants.
“We have a good track record when it comes to the protection of migrants who would otherwise be exposed to persecution or serious harm. In particular we uphold the principle of non-refoulement.
“We also have a good asylum recognition rate, often well exceeding 50 per cent.”
She added that solidarity was critical and called upon NGOs and other relevant stakeholders to continue to support the government’s calls for greater EU solidarity.
She condemned all forms of discrimination, racism and xenophobia, adding that in July, all MPs had signed a pledge for restraint in political discourse which was likely to result in racism and xenophobia.
Also present at the launch was Alternattiva Demokratika chairman Arnold Cassola, who noted that while the report put forth the legal argument that the shipmaster was correct in disregarding Malta and Libya’s instructions, Home Affairs Minister Manuel Mallia said on TVAM that the shipmaster tried to show off.
He continued that the PN also backed the government’s position on the Salamis incident.
“The European Commission is proposing fixed laws regarding saving those at sea. Nationalist MEP Roberta Metsola is proposing a number of amendments. Some are good. But she wants rules for every specific operation.
“That would mean that while we’re busy discussing what the rules should be, the migrants would be there drowning.”
Another amendment she was proposing, he continued, revolved around the terms “port of safety or suitable port”, adding that a suitable port was a disaster because there was no legal definition describing “suitable”.
He called on both Dr Gauci and Dr Cassar Torregiani to persuade her to withdraw these amendments.