The report of the Geneva-based International Court of Justice that condemns Malta’s immigrant detention policy, I am sure, is the work of good people who want a world that is more just and more respectful of human rights.
Malta is a small island where being a secret immigrant is possible for overstaying Europeans but not to boat people coming from Africa- Charles Pace
They want a world where the weak enjoy the same rights as the strong. They reckon that, though no court has decided so yet, Malta’s detention policy is against human rights as recognised by international laws and conventions.
It is interesting to see that their arguments are on two levels – and the two levels do not quite match. On one hand they reckon, in their understanding of the laws as they now exist and apply, that Malta is at fault in applying detention as it does. They also tell us that, in the words of The Times article reporting it, “the difficult situation the country is facing ‘cannot serve as justification’ for breaching its core human rights obligations”.
Human rights, in most cases, are black and white law. These rights apply whether or not you have the resources to apply them, whether or not this is sustainable for your country, whether or not you are foisted with a heavier burden than should be because other countries have easy ways to slip out of the responsibility.
Malta is arguably one of the countries in the world most threatened by immigration. EU law obliges it to take in all asylum seekers that step on its soil, while other EU countries are not obliged to relieve Malta of the burden they impose.
The law of asylum gives the millions persecuted by war in Somalia, Sudan and so many African countries the right to settle in Malta, or any other safe country, in the EU and outside it. So what are they waiting for? Why have they not yet used this privilege and come to enjoy our peace?
The answer is that rights on paper have to pass through all sorts of brakes and barriers and buffers before the few make it. Some buffers and obstacles apply to Malta as much as to other countries. To come over, an asylum seeker has to cross deserts and seas.
The fact that you have a right to come does not give you the right to a visa: so you can only come illegally. Few have the guts or the opportunity to start it, even fewer arrive.
But there are buffers that other countries have which Malta does not. Countries like UK, France and Sweden require immigrants to pass through so many other countries. These act as buffers.
Bigger countries like Italy, Greece and Macedonia have thousands of immigrants that filter through their extensive frontiers without being noticed and identified. Countries as far in as Belgium are even known to give temporary accommodation to undocumented immigrants without recording their identities and fingerprints, just encouraging them to quietly proceed on their way out of Belgium and to Britain.
Malta is a small island where being a secret immigrant is possible for overstaying Europeans but not to boat people coming from Africa: Malta is so small that they are all immediately identified, becoming the state’s responsibility.
Lampedusa and Ceuta and Melilla are small like Malta, on the doorstep of Africa like Malta, but they are parts of Italy and Spain, so that they have a buffer to take any unsustainable population.
Of course, a European Court of Justice might turn to Malta and apply the blindness rule of human rights and say, ‘your circumstances are your problem. I only apply the law as it is written.’
Applying legal blindness to migration makes one ask whether the laws were defined by big countries that see themselves as central to shirk the burden on countries that are small or to ones that they define as peripheral.
If Malta’s immigrants are seen in proportion to land size, it turns out that what we face is like getting 4.5 million immigrants in a year in France. Human rights and EU laws would be changed within a month. But Malta has to wait much longer to be hopefully understood.
One must appeal to the ICJ jurists to push on the second level, getting Europe to unburden Malta in a guaranteed, not optional, manner.
But if this is not done, and the cart is put before the horse, that is, if one first applies the blind first level to Malta, and deprives Malta of any buffer it can place between itself and more immigrants than it could possibly take, this blindness will take its toll.
The report claims Malta is wrong in viewing these 10 years of immigration as an emergency. Perhaps the jurists are right. The real national emergency will come if jurists and judges apply their type of justice, blind to the difference between the weak and the strong.
Detention is a scorching burn on the conscience of any just Maltese. But let us not punish a small country that is trying to remain stable and sustainable while still being left to its devices by countries and institutions that should have a better sense of justice.
Charles Pace lectures on social policy at the University of Malta and contributes to literature about migration.