mediterranean migration

The EU's Malta Declaration on Migration: Shaping a Coalition of the Willing

Jürg Martin Gabriel
Professor Emeritus ETHZ
Swiss Federal Institute of Technology
Zurich, Switzerland

January 2020

https://ssrn.com/abstract=3514517

Table of Contents

Introduction 1

Salvini's Heritage 2

Gradual Involvement 4

2019 Routine 6

Policy Shaping 8

Press Reactions 10

An Assessment 12

Introduction

November 23, 2019 was an important day in the history of Mediterranean migration. 213 migrants rescued by an NGO vessel were allowed to disembark at the Sicilian port of Messina based on the EU's 'Malta declaration' of September 23. It was the first time that the last phase of a SAR operation was explicitly part of a plan worked out by the European Commission and four member countries – Germany, France, Italy, and Malta. By focusing mainly on disembarkation and relocation the initiative went in the right direction. A limited 'coalition of the willing' took a step that was long overdue and that, from a legal perspective, aimed at adapting the Dublin First Country Rule.

The effort is highly pragmatic, and as is not unusual when starting a new policy, suffers from numerous limitations. Disembarkation and relocation need regulating but by themselves do not suffice. Additional aspects, all intimately tied to maritime SAR efforts, ultimately have to be dealt with. Add to this the fact that EU solidarity is lacking, as the Luxembourg meeting of interior ministers on October 8 showed.[1]

The Malta Declaration was, and still is, supported by only a handful of actors. That is not new in the history of European integration. First steps were often modest, informal and pragmatic. Few would have predicted in 1945 that dealing with coal and steel would lead to the creation of a Single Market made up of 27 members and characterized by sophisticated supranational structures.

The EU's involvement in formulating and implementing the declaration did not happen overnight; it was gradual and went through various stages. For years, Brussels has urged EU members to show more solidarity in matters of migration – without much effect. Ironically, it was the nationalist EU critic Matteo Salvini who, by his controversial actions, proved to be helpful. In July 2018, Salvini unilaterally closed Italian ports to mainly but not only NGO vessels. As a consequence, disembarkation – and tied to it the thorny issue of relocation – had to be handled by other EU countries. It was a demonstration that de facto changes of the Dublin Rule were possible and that, in the end, helped Brussels to become involved.

As is to be expected, the story has many different dimensions, all of which cannot be handled here. It is clear, however, that Maltese efforts were critical. It explains why some commentators, when mentioning the declaration, call it the "Malta formula."[2] And as is often the case in the EU, the support of France and Germany was vital. Germany's Horst Seehofer, interior minister since March 2018, played a major role. Given Seehofer's controversial performance in Bavaria, this was somewhat surprising.[3] Another factor was the change of government in Rome, paralleled by new faces at the head of the European Union. The comments by Ursula von der Leyen, president of the Commission in waiting, were helpful as well.

The purpose of this article is to trace the evolution of the new policy by concentrating mainly on the EU's involvement, in the past, the present, and the future. At first, so it seems, Brussels was mainly an observer. That changed in July 2018, when some of Salvini's actions began to affect the EU directly. From then on, the Commission appears to have become more active. Beginning in early 2019, there were regular press reports mentioning Brussels as a coordinator of certain operations, an activity that gradually became routine. In September, the EU Commission went a step further and organized the Malta meeting. It also used the October Luxembourg meeting of EU interior ministers to briefly present the scheme – with very modest results.

Salvini's Heritage

Mediterranean migration suffers from many problems, and as far as the EU is concerned, various changes are needed. The Mediterranean Sea covers a huge region, and the difficulties faced by Italy, Greece, and Spain are very different. The present article focuses on the Central Mediterranean and mainly but not only on the issues of disembarkation and relocation. As mentioned above, the Dublin Rule is part of the problem.[4]

By stipulating that the country of arrival is responsible for registration, for asylum procedures, and, if necessary, for repatriation, the Dublin Rule affects some states more than others. Italy, with an extremely long maritime coast, is hit particularly hard. From 2014 to 2016, there were around 160,000 arrivals each year. In 2018, the number was down to 23,000, and in 2019, around 11,500 migrants arrived.[5] The results of Matteo Salvini's contested actions showed.

Italy is not completely alone. The EU provides financial assistance and helps with the management of reception centers, called hotspots. At sea, the European Border and Coast Guard Agency (Frontex) supports the Italian Coast Guard. In 2014, Frontex organized Operation 'Triton,' which was replaced in 2018 by Operation 'Themis.'[6] And, to fight migrant trafficking, EUNAVFOR runs Operation 'Sophia'.[7] But given the massive arrivals between 2014 and 2016, some politicians thought that new and more effective measures were needed.

Matteo Salvini came to power in June 2018. As minister of the interior, Salvini was in charge of managing migration. And in typical nationalist-populist fashion, what he did was spectacular and controversial. His main target was NGOs involved in intercepting and rescuing migrants off Libya, but indirectly, he also wanted to hit the EU.[8] In July 2018, Salvini closed Italian ports to all SAR disembarkations.

As seen, the actions showed results. During Salvini's first six months of office, from June to December 2018, there were 3,000 arrivals, and from January to August 2019, there were another 4,500. All told, around 7,500 migrants landed on Italian shores during Salvini's 15 months in office. Border tightening, as he had promised, was a success.

Relocations also worked. During Salvini's tenure, 3,400 migrants were relocated in 27 operations carried out by six different NGOs. The involvement of EU countries was respectable as well; 10 EU members were willing to accept migrants. At the top of the list were France with 12 relocations, Portugal with 11, and Germany with 11. Spain followed with 8 relocations, Luxembourg with 7, and Ireland with 5. The Netherlands, Romania, Belgium and Finland participated in one or two cases.[9] The results showed that spreading disembarkations and relocations can function. If Salvini could do it, why not Brussels?

The figures also explain why the Commission, in the elaboration of its plans, regarded the cooperation of France and Germany as crucial. It is hardly a surprise. New steps in European integration have often originated with these two. Once again, it was Germany and France that became active, joined by Italy and Malta. They formed the core of a potential 'coalition of the willing.'

Gradual Involvement

As mentioned above, in the beginning, the EU Commission remained in the background. That is not to say that it was entirely passive. On the contrary, for years Brussels had tried to initiate changes in matters of migration, but with few results.[10] It is not surprising, therefore, that during the first six weeks of Salvini's relocation efforts, the press never mentioned EU involvement. It was in the middle of August 2018 that a first report appeared, followed by a second in January 2019. The situation changed during the summer months of that year. In July and August, EU cooperation became routine and peaked in the organization of the Malta and Luxembourg meetings.[11]

Brussels's initial reluctance showed in late June 2018, when the German NGO vessel Lifeline was waiting between Malta and Lampedusa with 230 migrants on board. Both the Maltese prime minister and the French president intervened, and on June 26, Malta was willing to allow disembarkation because nine EU members were ready to accept some of the migrants. The countries were France, Portugal, Netherlands, Luxemburg, Belgium, Ireland, and Norway, plus Italy and Malta. There is no mention of EU involvement.[12]

The situation changed in the middle of July 2018 mainly, one would assume, because the EU was directly affected. Two commercial ships rescued 450 migrants off Libya, and the migrants were later transferred to two public vessels, one of Frontex and the other of Italy's Guardia di Finanza. Given the involvement of an official Italian boat, Prime Minister Conte had intensive talks with Malta. But that was not all.

Conte also sent letters to the heads of the European Commission and the European Council.[13] That made sense, because the Frontex vessel was part of an EU mission. Brussels must have been concerned, and although official confirmation is lacking, it is fair to assume that informally, the EU was involved and looking for a solution. The migrants were allowed to disembark at the Sicilian port of Pozzallo but only after five countries promised to participate in relocation. France and Malta were among them.[14]

As the summer went on, it became increasingly difficult for the Commission to merely operate behind the scene. This was especially true when Salvini himself asked publicly for EU participation. And to really challenge Brussels, he did so in two cases involving ships of his own Coast Guard, one with 140, the other with 131 migrants on board. Disembarkation was only granted when Germany, France, Ireland, Luxembourg, and Portugal agreed to cooperate.[15]

In another important incident around the middle of August, Brussels cooperation was explicit. The Maltese government announced publicly that following intensive discussions, "a number of European Union member states, with the support of the European Commission, agreed on a responsibility-sharing exercise regarding the rescued migrants."[16]

Once France, Germany, Luxembourg, and Portugal were willing to cooperate, over 250 migrants were allowed to go on land in Valletta and Spain: 141 migrants had been rescued by Aquarius, a French-German NGO vessel run jointly by SOS Méditerrannée and Médecins sans Frontières (SOS Méd/MsF), and 114 additional migrants, intercepted days earlier by Malta's own Maritime Squadron, were part of the deal.[17]

2019 Routine

By the end of 2018, EU involvement had become routine. It showed in early January 2019, when EU Migration Commissioner Avramopoulos thanked nine EU members for taking around 300 migrants: Germany, France, Portugal, Ireland, Romania, Luxembourg, and the Netherlands, including Italy and Malta.[18] These countries, Avramopoulos said, had "shown European solidarity in the most concrete way possible. What needs to follow now is a swift transfer and rapid processing of each case."[19]

During the summer months Brussels's leadership became obvious. At the beginning of August 2019, 40 migrants aboard Sea-Eye's Alan Kurdi were allowed to disembark at Malta. According to a report, the transfer to other EU nations had been organized by the Commission. The newly appointed German minister of the interior, Horst Seehofer, was also cited. Seehofer felt that in so doing, Malta "is sending an important signal of solidarity," and this, the Associated Press added, was ahead of a meeting planned for the next month in Malta in which the interior ministers of Germany, France, Italy, and Malta hoped to come up with a way to deal with EU migrant arrivals by sea and avoid repeated standoffs.[20]

Another typical case, also in August 2019, involved 356 migrants aboard the Ocean Viking, operated by SOS Méd/MsF. The vessel waited for three weeks at sea until the EU asked member states for help on August 21.[21] Two days later, Commissioner Avramopoulos was able to announce that the migrants would be taken to Malta "as part of an EU relocation deal" joined by France, Germany, Ireland, Luxembourg, Portugal, and Romania.[22]

Four additional routine events occurred toward the end of 2019. The first, as mentioned at the outset, took place on November 23, when 213 migrants on the Ocean Viking went on land at Messina as part of the new Malta declaration. The second happened around December 4, when the Italian government announced that "the European Commission has started the procedure of distributing the 61 migrants on the Alan Kurdi and the 60 on the Ocean Viking."[23] The groups disembarked at two Sicilian ports, Messina and Pozzallo.

Two operations in late December followed a similar pattern. On December 23, 159 Ocean Viking migrants disembarked at Taranto in Apulia, and on December 29, 32 Alan Kurdi migrants were allowed to land in Pozzallo. EU coordination was mentioned in both cases.[24]

Policy Shaping

The events of late 2019 are a clear indication that the meetings at Malta and Luxembourg were not in vain. A long overdue declaration had been formulated and backed by a coalition of the willing. But the result is anything but ideal, achievements are paired with shortcomings. Let me first address the positive side of the policy and then, at the end of the paper, elaborate on some of its weaknesses.

There were good reasons why the first EU-organized meeting was held in Malta and why the emerging scheme is identified with the country's name. The cases mentioned above show how central the role of Malta was, geographically and politically.

Malta, located in the middle of the Central Mediterranean, inherited a huge SAR zone from the British. Like all such zones, it is regulated by the law of the sea, more precisely by the SOLAS Convention.[25] Within its zone, Malta is required to run a Maritime Rescue Coordination Center (MRCC). As the name implies, a country's prime responsibility is to coordinate SAR operations. Actual rescues must be undertaken by a ship nearby, and disembarkation has to take place in the nearest safe port.

In numerous cases, the nearest safe port happens to be the Italian island of Lampedusa, which lies inside the large Maltese zone. For Rome the overlap was often used as a pretext to argue that the Maltese were responsible for disembarkation. According to SOLAS, that is not the case, but given the massive arrivals, Italy used the argument to dramatize its own uncomfortable situation. Salvini was no exception, at least in the beginning. Long waiting periods for NGO vessels, especially when reported in the world press, served his purpose. Small wonder that Malta felt unfairly treated.

Add to this the fact that Malta, with its 600,000 inhabitants, has for years had the highest per capita migrant acceptance rate. It is not surprising, therefore, that the government is interested in finding EU members that show understanding for its situation and offer help to manage problems. Brussels was the obvious address. A solution would be in Malta's self-interest but could also serve the interests of the EU.

As said, the Commission has made many attempts to improve migration inside and outside the Mediterranean, and it did so in 2018. A summit held toward the end of June produced very little.[26] The same was true for the Helsinki meeting of EU interior ministers held in mid-July. It failed to create a "solidarity mechanism" proposed by France and Germany.[27] Commissioner Avramopoulos, responsible for migration, was well aware of the problems.[28]

What helped was the change in personnel at the head of the EU. Ursula von der Leyen, president of the Commission in waiting, mentioned migration several times. On July 11, von der Leyen said that the Dublin Regulation had to become fairer, so that coastal countries were not left on their own. She emphasized that the migrant issue must be shared by all.[29] Von der Leyen also mentioned migration in an address to Parliament on July 16 and once more in an interview three days later.[30]

Needless to add that the Italian change of government helped as well. Luciana Lamorgese, a technocrat, replaced Salvini as minister of the interior, and the fact that Giuseppe Conte continued as prime minister was good news, too. As his previous 14 months in office had shown, Conte's interventions in matters of migration were often in sharp contrast to those of Salvini.

The most useful change in personalities, however, was Seehofer's move from Munich to Berlin. During the 2015 migration crisis, and as head of the Bavarian government, Seehofer had been a harsh critic of Angela Merkel's "open door" policy. Now, in his position as minister of the interior, he turned out to be a constructive European.

Press Reactions

The Malta declaration of September 23 was of a very general nature. Press reports reflected it. The Times of Malta spoke of a temporary plan focusing primarily on disembarkation and relocation. According to the Times, the talks among the four countries and the Commission "centered on having automatic relocation provisions for migrants brought to Malta or Italy, as well as details about which migrants would be eligible for relocation." The Times also added that at the upcoming Luxembourg meeting "other EU member states would have the opportunity to volunteer as a place for disembarkation or relocation."[31]

Reuters was somewhat more specific by quoting Luciana Lamorgese. In her view, the idea "was for rescued migrants to be sent to various EU states within four weeks of being brought ashore." Lamorgese also mentioned asylum. Participating countries, in her words, would handle "asylum requests, welcoming them in if they met the necessary requirements and organizing their repatriation if they do not."[32] It was an indication that disembarkation and relocation were tied to additional issues that, as experience shows, are difficult to solve. But Lamorgese's words were entirely realistic.

The language used at the Luxembourg meeting, as promised, turned out to be somewhat more concrete. The new policy was also characterized as temporary and as having a primary focus on disembarkation and relocation. But according to the Associated Press, some remarks were new and reflected Lamorgese's position. Germany, France, Italy, and Malta, the Associated Press reported, "are seeking approval for a 'fast-track' process that would screen migrants, relocate asylum-seekers and return people who do not apply or qualify, and all within four weeks." [33]

Seehofer also mentioned asylum and, as Reuters reported, warned that if the countries on the EU's external border were left to fend for themselves, there would never by a common European asylum policy. He added that in the absence of a joint asylum policy "there is a danger that uncontrolled immigration will once again take place, throughout Europe. We have seen this before and I do not want it to happen again."[34] Seehofer was referring to the difficulties he faced in 2015, when in his own Bavaria huge numbers of Syrian refugees arrived and Germany was practically left alone to handle them.

Seen as a whole, the press reports on both meetings were sober in character. The Times of Malta spoke of a standstill after lengthy talks and deplored that no other EU members wanted to join. Portugal, Ireland, Luxembourg, and Finland, the paper said, were considering participation "but only if others sign on and as long as it does not include quotas for how many migrants each country would host."[35] The Times also added that Bulgaria, Cyprus, Denmark, Hungary, and the Netherlands were opposed or extremely reluctant to join. The names of additional countries could have been added, of course. The coalition of the willing, for the moment at least, would be limited to the initial five.

An Assessment

To focus on disembarkation and relocation is not wrong, but to clarify the Dublin First Country Rule, it is not enough. Other aspects have to be included. Let me, in this final part, mention a handful of them. I begin with two maritime issues: SAR zones and NGO rules. Then I look at some of the problems arising on land, at relocation, quotas, asylum and repatriation procedures.

The rules governing SAR zones have to be clarified, as the Maltese experience shows. There is no need to redefine the SOLAS Convention, but there is a definite need for EU states to exhibit a common understanding and practice. To avoid embarrassing disputes and conflicts, it is necessary to define explicitly what is meant by such important terms as "SAR coordination," "nearest ship," or "nearest safe port."

NGO rules must also be discussed. It makes a difference whether private or public vessels are involved in SAR operations. It is one thing for governments or EU agencies to handle vessels of their own coast guard, police, or navy, but it is an entirely different matter to deal with fishing boats, container ships, or NGO vessels. Salvini tried to treat them alike, but as seen, he encountered definite limitations.

A first effort to regulate NGO action was undertaken by Marco Minniti, the interior minister of the Gentiloni government and Salvini's predecessor. In July 2017, Minniti published a 10-Point Code of Conduct, which was initially poorly received by practically all NGOs.[36] However, some NGOs began to realize that cooperating with the European Commission and the governments involved has certain advantages. As the routine operations of late November and December of 2019 show, playing by certain rules helps NGOs as well.

Let me now turn to issues tied to relocation, beginning with quotas. The declaration presented at Malta and Luxembourg avoids the topic, because it is highly contested. Those favoring the idea feel that quotas reflect the existence of EU solidarity and are crucial for a successful functioning of the policy. The absence of quotas, on the other hand, is an indication of failure. Opponents disagree. They argue that quotas are bound to provoke harmful domestic debates and should therefore be avoided. They also add that given the dynamic and unpredictable nature of migration, it is next to impossible to operate with fixed numbers. An effective relocation policy must be flexible.

Issues regarding asylum, as the words of Lamorgese show, cannot be avoided and are at the heart of improving the Dublin Rule. For the working of a common formula, states must know whether asylum proceedings are associated with disembarkation or with relocation. A first "screening," as some see it, should happen right after landing. What that means is difficult to say. Serious asylum applications take time and could in principle be handled by countries of disembarkation and of relocation.

The handling of asylum procedures should also be harmonized. Basic rules are set by international conventions; actual processes, however, are determined by individual countries – and can vary. The European Asylum Support Office (EASO), located in Malta, is meant to help, but in its present shape, the focus is mostly on training and administration.[37] The new scheme would no doubt profit from a strengthened EASO mandate, but at the moment, that is unlikely. In matters of asylum, EU members, so it seems, are reluctant to limit national sovereignty.

Most of these problems can be eliminated, some argue, if asylum procedures are handled at sea. The idea was advanced in September 2018 by the interior ministers of Austria and Italy, Herbert Kickl and Matteo Salvini.[38] As right-wing populists, the two are unlikely to convince the rest of the EU, but given the dominance of anti-migration feelings in nationalist circles, the idea has some appeal among certain politicians.

Sebastian Kurz is an example. Before Kurz became Austrian chancellor at the end of 2017 he served as foreign minister, and it was during this period that he publicly favored the adoption of the "Australian model," which meant the isolation of rescued migrants on a Mediterranean island. Asylum procedures would no longer be handled on the European mainland but, ideally, along the Southern shores of the Mediterranean.[39] The response was highly negative. In the eyes of most Europeans, the idea is inhuman, and in the eyes of North African states, it smacks of neo-colonialism.

Repatriations, as Lamorgese says, should also be part of a new deal. She is not alone.[40] But this issue, too, is contested. Some EU members make use of Frontex to organize return flights based on bilateral agreements among the parties involved. They feel that the EU has more weight than individual members to negotiate return arrangements, especially when reluctant home countries are involved. Others are opposed. They argue that repatriations, which are often politically sensitive, should be handled by states and not by EU agencies.

For a successful development of the Malta declaration and a redefinition of the Dublin Rule, all the issues mentioned ought to be tackled and resolved. In the short run that is unlikely, because the hurdles to be overcome are of a technical as well as a political nature. Quotas are an example. The criteria for a fair relocation scheme are not easy to define. Is it the size, the wealth, or the geography of a country that counts? Or is it a combination of all three? Overcoming domestic hurdles can be more difficult yet. Migration is a political topic that often suffers from deep-seated biases. Many politicians prefer to avoid the issue, if possible. To shape a larger coalition of the willing is no simple task.

[1] For a critical evaluation of the EU's effort, see Sergio Carrera and Roberto Cortinovis, The Malta declaration on SAR and relocation: A predictable EU solidarity mechanism?, Center for European Policy Studies (CEPS), Brussels 14 October 2019, see file:///C:/Users/gabri/Google%20Drive/CEPS%20Malta-Declaration-1.pdf

[2] Others speak of the "Valletta formula" or the "Malta method"; see, for instance, https://www.dw.com/de/malta-methode-regelt-migranten-aufnahme/a-51387396;

[3] For details on Horst Seehofer, see https://en.wikipedia.org/wiki/Horst_Seehofer

[4] For more about the Dublin Rule, see https://en.wikipedia.org/wiki/Dublin_Regulation

[5] International Organization for Migration (IOM), https://www.iom.int/news/iom-mediterranean-arrivals-reach-110699-2019-deaths-reach-1283-world-deaths-fall

[6] For details on Triton, see https://en.wikipedia.org/wiki/Operation_Triton; for more on Themis see https://www.dw.com/en/frontex-launches-new-eu-border-control-mission-operation-themis/a-42417610

[7] For EUNAVOR and 'Sophia', see https://de.wikipedia.org/wiki/European_Union_Naval_Force_%E2%80%93_Mediterranean

[8] Over the years, nearly a dozen NGOs have operated in the Central Mediterranean. The three most active in recent times are the Catalan 'Proactiva Open Arms,' the French-German 'SOS Méditerranée/MsF,' and the German 'Sea-Eye'; also active is the German 'Sea-Watch,' the German 'Mission Lifeline,' the German 'Jugend Rettet,' the international 'Save the Children,' the Italian 'Operazione Mediterranea,' and the Italian 'United4Med.' The Maltese 'MOAS' was the first NGO active in the area, but it stopped operations some time ago.

[9] For more details, see Jürg Martin Gabriel, Salvini's Record on Border Tightening and Relocation (June 12, 2019), available at SSRN: https://ssrn.com/abstract=3402861

[10] A general view about EU activities in the field of migration is available at https://www.consilium.europa.eu/en/policies/migratory-pressures/

[11] For a detailed list of events, see my website 'www.blue-borders.ch'.

[12] See https://www.bbc.com/news/world-europe-44613344. There is a press report that on July 6 Horst Seehofer intervened both in Rome and Brussels regarding the vessel of the German NGO Sea-Eye, but there is no report about Brussels getting involved; see https://www.dailymail.co.uk/wires/reuters/article-7220315/Italy-rebuffs-German-migrant-appeal-rescue-boat-docks-Lampedusa.html

[13] For details, see https://timesofmalta.com/articles/view/malta-appears-ready-to-let-rescue-ship-lifeline-dock.682835

[14] See https://www.dailymail.co.uk/wires/reuters/article-5954501/Italy-says-France-Malta-agreed-host-rescued-migrants.html

[15] More information about the two vessels available at https://www.dailymail.co.uk/wires/ap/article-7289979/Italy-asks-Europe-140-migrants-Italian-ship.html and http://www.ansamed.info/ansamed/en/news/nations/italy/2019/07/31/salvini-to-authorise-gregoretti-migrants-to-disembark_9a04b874-0207-46c9-9142-1e480bb4511e.html

[16] For more details, see https://www.dailymail.co.uk/wires/reuters/article-6059627/UPDATE-1-Malta-lets-rescue-ship-dock-EU-states-agree-migrants.html

[17] See https://timesofmalta.com/articles/view/migrants.686783

[18] For more details, see https://www.bbc.com/news/world-europe-46808509, also https://www.dailymail.co.uk/wires/reuters/article-6572991/Malta-lets-stranded-migrants-disembark-ahead-redistribution-EU--PM.html

[19] Entire Avramopoulos text is available at https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_19_304

[20] For more details, see https://www.dailymail.co.uk/wires/ap/article-7319473/40-migrants-German-rescue-ship-transferred-Malta-port.html

[21] See https://www.reuters.com/article/us-europe-migrants-commission-viking/eu-executive-asks-for-solidarity-with-ocean-viking-migrants-after-open-arms-disembarked-idUSKCN1VB128