VOID OF SEA, VOID OF LAW? - DIVA PORTAL
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Linköping University - Department of Culture and Society (IKOS)
Master´s Thesis, 30 Credits – MA in Ethnic and Migration Studies (EMS)
ISRN: LiU-IKOS/EMS-A--22/08--SE
Void of Sea, Void of Law?
Examining the European Union’s treatment of migrants
in the Mediterranean: a legal and normative analysis
Aidan McGirr
Supervisor: Peo HansenTable of Contents
Table of Contents ............................................................................................................................ ii
Table of Figures ............................................................................................................................. iv
Acronyms ........................................................................................................................................ v
Abstract ........................................................................................................................................... 1
Acknowledgements ......................................................................................................................... 2
1. Introduction ............................................................................................................................. 3
1.1. Theoretical Basis and Methodology ................................................................................. 4
1.2. Situational Overview ........................................................................................................ 7
1.3. Policy Overview ............................................................................................................. 11
1.3.1. International Law .................................................................................................... 11
1.3.2. European Union Law .............................................................................................. 15
1.3.3. State Law ................................................................................................................ 20
1.3.4. Norms ...................................................................................................................... 24
2. Three Case Studies ................................................................................................................ 26
2.1. The Successful Crossing ................................................................................................ 26
2.2. The Thwarted Crossing .................................................................................................. 30
2.3. The Failed Crossing ....................................................................................................... 33
3. Reflections on Current Policy ............................................................................................... 39
4. Recommendations for Current Policy ................................................................................... 41
4.1. International Legal Reform ............................................................................................ 41
4.2. European Union Legal Reform ...................................................................................... 42
4.3. State Legal Reform......................................................................................................... 43
4.4. Pathways to Reform ....................................................................................................... 43
4.5. Norms as an Opportunity for Reform ............................................................................ 46
ii4.6. Reform Conclusions ....................................................................................................... 48
5. Conclusion ............................................................................................................................ 50
6. Bibliography ......................................................................................................................... 53
iiiTable of Figures
Figure 1: A Depiction of Mediterranean Crossing Routes .............................................................9
Figure 2: A Summary of Potential System Reforms .................................................................... 46
ivAcronyms
CAT Convention Against Torture
EU European Union
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ECRE European Council on Refugees and Exiles
HRC United Nations Human Rights Council
ICJ International Court of Justice
MENA Middle East and North Africa region
MoU Memorandum of Understanding
NGO Non-Government Organization
RC 1951 Refugee Convention
R2P Responsibility to Protect
SDGs Sustainability Development Goals
TCN Third-Country National
UDHR Universal Declaration of Human Rights
UN United Nations
UNCLOS United Nations Convention on the Laws of the Sea
UNGA United Nation General Assembly
UNHCR United Nations High Commissioner for Refugees
UNSC United Nations Security Council
vAbstract
Approximately eight people have died every single day since January 1, 2014 attempting to cross
the Mediterranean Sea. Put another way, more than 23,000 migrants have met their end in the
Mediterranean while attempting to enter the European Union. Yet, it has not always been this way.
Dangerous and lethal Mediterranean crossings have been on the rise since the 1990’s as a result of
more restrictive EU migration policies and increasing conflict and unsettlement in the Middle East
and North Africa regions. This thesis seeks to understand how and why death has become a
hallmark of the Mediterranean Sea by examining the laws relevant to the Sea. To do so, this work
examines three case studies: the Successful Crossing, where a migrant vessel safely crosses the
Mediterranean; the Thwarted Crossing, where a vessel is intercepted while crossing; and, the
Failed Crossing, where a migrant vessel sinks or is pushed back from safety. The most relevant
international, EU, and state laws are then contrasted with these case studies to determine if the
vessels and the government actors around the vessel behaved according to the law or not. Across
all three case studies, government actors violated some level of law (international, EU, or state.)
In most cases, these violations are stipulated by another level of law (e.g., state laws allow for
violations of international laws,) demonstrating a mismatch between the three levels of laws. In
other cases, there is absolutely no legal support for the actions that have created so many deaths in
the Mediterranean. Such violations are often met with impunity for the operators. This thesis
documents such violations and then reflects on why the laws are built and broken in these ways.
Subsequently, this thesis then recommends pathways to reform the laws in-line with human rights
norms.
Keywords: Policy Analysis; Mediterranean Sea; European Union; Laws; Norms; International
Law; State Law; Irregular Migrant; Asylum-Seeker; Refugee; Human Rights; Accountability;
Reform
1Acknowledgements
The author would like to acknowledge firstly the dedication and thoughtfulness of his supervisor,
Peo Hansen. Peo has been an incessant source of creative inspiration and tactful writing
development, and for that I am extremely grateful. I would also like to thank Eleni Karageorgiou
for their invaluable contributions to this work. This thesis would not have been possible without
Eleni’s considerate feedback and meaningful research developments. Next, the author would like
to thank Kaya Hasslinger, who kindly provided insightful and well-researched critique at several
key moments in this thesis’ development. I would also like to thank several professional
connections: Simon Adams, for introducing me to the world of atrocity prevention; Jens Petersson,
for serving as a kind mentor and a stalwart support; and, the Arizona Flinn Foundation, for
allowing me to create the path I am on today. In addition, I would like to thank Silja Gerhard, Agi
Ziegler, Paul Schuler, and countless others for their unwavering personal support. Penultimately,
I would like to thank my family: my father, for his unwavering love and for being an endless
personal inspiration; my mother, whose unyielding optimism allows me to find the good in the
darkest times; my brother and my sister-in-law for giving me reasons to stay inspired; and, my
sister, for fearlessly creating her own self in this world. Finally, the author would like to
acknowledge what a luxury it is to be writing this thesis. I would also like to remember the people
who have led to this work being what it is today. I have spent many sleepless nights reading the
lists of the dead in the Mediterranean and reflecting on how similar our circumstances could have
been. To read, to write, and to pursue one’s passions are privileges which I can only hope to create
greater access to for others, and to ensure accountability for those whom such privileges have been
deprived.
21. Introduction
In the last eight years (2014-2021), more than 23,000 people have died or gone missing trying to
cross the Mediterranean Sea (IOM 2022). This conservative estimate equates to roughly eight
deaths per day, every single day, since January 1, 2014. Many of these deaths were entirely
preventable. In fact, until rather recently, there were very few people dying in the Mediterranean
Sea as a result of migration crossings (Guild, Costello, Garlick, & Moreno-Lax 2015: 4).
Moreover, in a world supposedly governed by rules of law and commitments to fundamental
rights, these deaths should not have happened. Yet, due to desperation caused by conflict and
persecution, and due to strangled asylum and migration policies, many people were left with no
choice but to embark on the perilous Mediterranean crossing in order to seek safety and asylum.
These deaths, occurring so often, have become a normalized feature of the 21st Century’s migration
façade.
This thesis seeks to find accountability for the large-scale loss of life that has been
occurring in the Mediterranean Sea. By analyzing the laws and norms relevant to the
Mediterranean, and by unraveling the complexity inherent to these systems, this study seeks to
understand how and why the Mediterranean has become a mass grave for migrant crossings. While
the literature in this field is rich already, there is a dearth of information which directly pins fault
to official laws and actions. This is partially because states are frequently acting within the bounds
of the law when operating in the Mediterranean. Yet, even in such cases where deaths in the
Mediterranean occur within the bounds of laws, state actors have disregarded these laws to further
the cruelty inherent to Mediterranean crossings. As just one example of this cruelty, The Guardian
has linked illegal pushbacks by European Union (EU) forces to more than 2,000 deaths in the Sea
(Tondo 2021). Consequently, the purpose of this thesis is to directly link the disasters of the
Mediterranean with current international, EU, and state laws. The rationale for this linkage is to
concretize the seriousness and circumstance of deaths in the Mediterranean. Equally, this thesis
works to establish a tool for holding states accountable to their fundamental legal and normative
obligations. Finally, this thesis attempts to understand how these laws and norms function together
in relation to action; despite an apparent hierarchy between the different laws (international, EU,
and state,) the various legislations exist in contention with each other. This disconnect makes
3deaths permissible under one lens but not another. As such, this thesis seeks to piece these lenses
together.
Despite this mass death, the loss of life in the Mediterranean is frequently overlooked
within international and national media.1 The reasons for this are numerous. Perhaps one of the
most critical reasons is because of what sort of lives are being lost. Too often, black bodies are
swept away by frigid ocean currents as a result of policies aimed to exclude these outsiders from
the EU inner. Moreover, the situations which these people flee can practically all find their roots
in colonial European violence.2 This phenomenon has been made abundantly clear in the recent
developments in Ukraine, where Ukrainians are being welcomed with open arms while other types
of migrants have been systemically forced out of Europe. Indeed, there is much that could be said
about the identity and positionality of migrants forced to cross the Mediterranean Sea, and how
they are inherently disenfranchised from an unwelcoming Europe Union. However, this thesis only
mentions this circumstance to remind readers of the historical legacy upon which Mediterranean
deaths are built, and to demonstrate the complex socio-cultural world in which these people’s lives
are lost.
1.1. Theoretical Basis and Methodology
This work is written through the lens of humanist, interdisciplinary studies. While the sovereign
state may be the purveyor of rights and the arbiter of its populations,3 this thesis removes itself
from a state-centric lens to focus on the on-ground impacts of policies and norms. Moreover, if we
are to be serious about human rights, then we must be serious about their applicability for all, not
just the privileged few whose fundamental rights are generally secure by nature of their position
on the globe. As such, this thesis is posited between states and people; it exists in the nexus of the
two wherein peoples’ minds and actions may be shaped by the state, but not necessarily controlled
by it. Furthermore, this work assumes that migration of all kinds is an incessant facet of the modern
globe – an assumption in line with a growing body of migration and international relations scholars
1
This is not to say it is always overlooked. Indeed, occasional stories are posted on the Mediterranean which steal the
world’s attention for a moment but these are quickly overshadowed once again. Such stories are frequently the mass
casualty events, implying that mass death (and reaction) is what it takes to motivate the world, rather than action based
on education (by employing preventative measures instead of reactive ones.)
2
See histories of Libya and Syria, for example (History.com Editors 2017; Wright 1989).
3
This grounding comes from well-developed sovereign power research. See, for example, (Foucault 1978; Weber
1964).
4(Sheller & Urry 2006; Wimmer & Glick Schiller 2002). Consequently, to understand how laws
and norms intersect positively and negatively for peoples’ actions, and to understand why the laws
are created around such actions, is of paramount importance to understand how the modern era is
being shaped.
Thus, the theoretical starting point for this thesis is a universalist, protection-minded
perspective, as described by Noll (2000: 193). Without too much analysis on how or why the
world/states operate, this thesis assumes that there is a power imbalance between the actors in
society: the sovereign state officials, the ‘insiders’ of a state – people who have their own
motivations and have their motivations supposedly dictated by the state, in the sense that
government officials speak on behalf of the ‘people’ -, and the people a state has deemed
‘outsiders’ – those excluded from the state’s security. From this power dynamic, this thesis
embarks to analyze the contentions between laws, norms, and practices via a comparative analysis
approach. After all, as Guild writes, summarizing Cohen, “it is through the deconstruction of the
mechanisms of authority in state-centric and media discourses that we can understand how society
operates” (2009: 5). This thesis draws its legal grounding in authors such as Noll (2000),
Karageorgiou (2018), Mann (2018), and Guild (2009). The laws emphasized within this thesis are
chosen because of their importance and their precedence as primary laws in application for the
Mediterranean Sea.4 As a result, this importance has made these laws highly salient among the
previously mentioned legal scholars as well. Yet, this thesis is not written as a legal case study but
rather as a narrative and policy analysis piece. As such, the thesis draws theoretical roots from
authors such as Lindqvist (1997), Sartre (1944), Balibar (2015), Brown (2010), Fanon (1967), and
Foucault (1978). Moreover, because this thesis is designed with practical application in mind, it
also draws inspiration from the well-developed format of situation background, analysis, and then
action, as exemplified by Hansen, Karageorgiou, and countless organization papers (Amnesty
International 2021a; GCR2P 2022a; Hansen 2021; Karageorgiou 2018).
The method for this thesis is to begin with a literature review in the context of how and
why Mediterranean migrant deaths are rationalized. From this basis, policy is consulted in
complement with real-world events and published reports of Mediterranean crossings. This also
4
Because of the scale and complexity of Mediterranean migration situations, it would be impossible to provide
reference to all relevant laws within this thesis. As such, this thesis chooses several core laws to reference in the case
studies and further analyses. More is said on the selection of laws on Page 6.
5entails a consultation of literature on the Mediterranean Sea policy, on the development and
propagation of state/EU/international systems, on current events, and on historical writings of
migration policy and attitudes. As will be seen, news reports and investigative journalism provide
support for the case studies within this thesis, while the policies and laws serve as a cross-reference
to compare what should happen on paper with what actually happens in practice; the two (laws
and case studies) then form a dialogue to compare action and policy. The laws in focus in this
thesis are selected from the aforementioned literature consultation. These laws have been chosen
for three reasons: for their precedence in the development of other laws; for their overarching
applicability in the Mediterranean; and, for the purpose of unraveling patterns within legal
precedence and legal hierarchy. Consequently, attention is given to more ‘primary’ laws – meaning
foundational laws from which other decisions (case law, norms, etc.) have been developed. These
laws are then directly pinned to case studies for the sake of establishing accountability in action.
Moreover, reflections and critiques of the policy are furnished. Within these reflections, norms are
also consulted.5 The purpose of this amalgam is to make concrete the abstract nature of these laws
and norms while also ensuring the information from this work is digestible and actionable.
There are several ways in which this method could be improved through future work. This
method would benefit by the inclusion of interviews with policymakers and non-government
organizations (NGOs) to further understand the question of, ‘Why do these deaths occur?’
Furthermore, this study could be improved by increased specificity in case studies or more
exhaustive analysis of laws and norms. However, this work is limited by its nature as a master’s
thesis. More recommendations for future analysis are provided in the Conclusion too.
As a final note, literature for this thesis was chosen carefully based on what best practices
are being done in the field of Mediterranean migration research. After thoroughly consulting
existing research in this field, theoretical works were used as a launching point in consultation
with existing research to create a foundation of incisive, rich, and critical source material for this
thesis. Experts in this field, or in parallel fields, were also consulted for best practices and
developments of thesis literature. Yet, this thesis is in no way exhaustive. It is fundamentally
5
The two norms highlighted in this thesis are the Responsibility to Protect (R2P) and the Sustainability Development
Goals (SDGs). These come from the author’s personal experience working in the field of international atrocity
prevention. While the content and global relevance of these norms is discussed further in the thesis, other norms could
be highlighted in future studies to demonstrate other facets of international normative protections.
6critical of, yet indebted to, Eurocentric analysis as a result of its topic material and locale.
Moreover, this thesis glosses over many theoretical constructions for the sake of analysis –
ignoring questions such as, “Who belongs” and, “Why only them,” to focus instead on how
migration can be made less dangerous in the future. Thus, there is ample opportunity for follow-
up research beyond this thesis. Interesting questions to develop further would be: “Why does the
state/EU/world invest so many resources into delimiting who is a citizen/European;” “What, if
any, are the real threats posed by Mediterranean migrants – in comparison with how they are
perceived politically;” or, “How can policy be reshaped to be fundamentally inclusive, rather than
exclusive?” This thesis leaves these questions on the table, though they will require further scrutiny
to support the world’s quickly growing migrant population. With these concessions out of the way,
let us begin by examining the recent situation in the Mediterranean Sea.
1.2. Situational Overview
As conflicts and crises have erupted across the Middle East and North Africa region (MENA),
concurrent with an obsession by EU states to ‘strengthen’ their border security, the Mediterranean
has become an increasingly common space to attempt entry into the EU for desperate people from
the MENA. In fact, for many, crossing the Mediterranean Sea has become the only possible way
to enter the EU, as embassies have shut down and land borders have become impassable (Ghaedi
2022; Karageorgiou 2018: 170; Médecins Sans Frontières 2022). The people attempting to cross
the Mediterranean have been dubbed as irregular migrants, refugees, ‘would-be’ asylum-seekers,
or illegal migrants – depending on who is discussing these people and what effect the discussant
wishes to have (Frontex 2022; IOM 2017; UNHCR 2015). Each of these terms comes with its own
normative precedents. Moreover, the distinction between, and the usage of, these different terms
is of paramount importance because it impacts what rights these people may access and how other
populations may perceive these voyagers. For the sake of this work, the term, ‘irregular migrant,’
is typically used. However, it is important to note that this term is not wholly accurate. Individuals
traveling on a vessel across the Mediterranean may not have designated themselves into legally-
and normatively-packed categories yet, such as ‘irregular migrant.’ Instead, as will be discussed
later, these people may be forced to become asylum-seekers, irregular migrants, refugees, or some
other category of migrant. No single term could encapsulate the positionality of every person on-
board a migrant vessel sufficiently; these vessels contain a mixed group of migrants. There is much
7literature one could consult for a more thorough analysis on the variations of terms and why
different actors use each – and why irregular migrant will be the dominant term in this thesis.6
As a consequence of these conflicts and closed-borders, the Mediterranean Sea has seen
more than 1 million people attempt to cross its waters since 2015 (IOM 2022). There are three
main crossing routes in the Mediterranean: the central route, separating Northern Africa from Italy
and Malta; the Western route, separating Northern Africa from Spain and France; and, the Eastern
route, separating the eastern MENA region from Greece and Italy (see Fig. 1). For the purpose of
this thesis, these routes are aggregated. While the original locales for many of these migrants vary
– historically, these migrants have been Syrians (17.3% of 2020 crossings), Moroccans (13.7%),
Algerians (10.6%), Tunisians (10.5%), and more, depending on the contemporary country
circumstances – in recent times, the majority have a shared destiny in Libya once they reach the
MENA shores (European Commission 2021; Médecins Sans Frontières 2021). Medecins San
Frontieres (MSF) documents this shared destiny well, writing: “[t]he vast majority of people
attempting the Mediterranean crossing pass through Libya, where they are exposed to horrific
levels of violence, including kidnapping, torture and extortion” (Médecins Sans Frontières 2021).
MSF goes on to describe how people in Libya are also likely to be detained indefinitely in detention
centers and to become victims of Libyan regime violence as well, such as armed conflict and
airstrikes. Yet, as discussed further in this thesis, this violence is also something that the EU is
very well-aware of. Indeed, the EU has helped institute aspects of this violence so as to keep
outside migrants off EU shores. This violence also stands in stark contrast to what exists on the
other side of the Mediterranean shores. As irregular migrants die or face torture in Africa, the
President of the European Commission, Ursula von der Leyen, arrived in Greece in 2020 to say:
“I want to thank the Greek border guards and the coast guards… I thank Greece for being our
European ασπίδα [English: shield] in these times” (von der Leyen 2020). Given the political
conditions and the time of the statement, it is reasonable to infer von der Leyen’s comments refer
to Syrian asylum-seekers. Thus, on the European side, these irregular migrants are seen as threats
to be shielded against. On the MENA side, these migrants are people to be detained, extorted, or
killed. Their very existence is generalized as a threat to be repelled.
6
Refer to (Balibar 2015; Brown 2010; Butler 2004) generally, for example. Moreover, see (Guild 2004) for a
discussion on the legitimacy of different terms, and for an understanding of why ‘irregular migrants’ is the chosen
term for this thesis.
8Image Source: Courtesy of the Migration Policy Institute (Katsiaficas 2016).
Fig. 1: A map demonstrating the three primary crossing routes for migrants attempting to enter
the EU from across the Mediterranean Sea. While the Eastern Route was the most popular
crossing route in 2015, all three are still heavily traveled and highly dangerous (InfoMigrants
2021).
The Mediterranean itself has also come to represent a very dark and nebulous space in the
modern era. It is a border without continuously defined walls, a securitized space without a
standing military, a graveyard without tombstones. At a time when critical border studies are
absent from, and, “wall fetishism,” is an essential feature of, modern politics, the indefiniteness of
the Mediterranean makes it unique (Khosravi 2019: 409). This mystery is further complicated by
the fact that defense operators in the Sea, such as the EU’s Border and Coast Guard Agency,
Frontex, do not have to share their mandates nor disclose their actions. And as a massive, open
water, the Mediterranean is one of the few places where there is a lack of overarching surveillance
and monitoring. On land, states have become obsessed with surveilling their borders. Tracking
who moves where has become both a major investment opportunity for defense companies and a
major talking point for security-minded political pundits. However, the Mediterranean represents
a void of these state-surveillance techniques. Facts and surveillance on the Mediterranean come
9from what Frontex chooses to disclose, or from what non-government actors can observe. Because
sovereignty over the sea varies drastically from sovereignty on land, and because the Sea has
pockets beyond state control, the space is truly a monitoring vacuum (European Parliament 2010:
22; UN General Assembly 1982). This also means that states and actors may be able to operate in
undetectable ways. As such, circumstances where Frontex has been caught conducting
‘pushbacks,’ or other illegal operations must not be considered as an exception, but rather
questioned as a norm for which the actors were simply caught in these particular instances. The
Mediterranean Sea has been made a mystery by states, but it has also become the matter of
investigative journalists and activists to uncover this enigma. Saving lives and holding people to
account can be seen like a needle in the haystack in the Sea because of the practical and physical
limitations imposed by the space. Even still, journalists and activists risk a great deal of personal
safety and professional standing to unveil government actions in this region. This reality thus
comprises the basis for the case studies further in this thesis.
Finally, it is worth taking a moment to consider more deeply what situations many people
are fleeing, such that they would subject themselves to the precarity and danger inherent to
Mediterranean crossings. In Syria (17.3% of 2020 crossings,) the United Nations conservatively
estimates that over 350,000 people have been killed due to conflict since 2011; countless others
have been tortured, disappeared, subjected to chemical warfare, or otherwise, both in
contemporary times and in the past under the al-Assad regime (European Commission 2021;
Khalifa 2016; United Nations 2021). Across parts of Africa, conflict has been waging for ages as
colonial powers meddled in sovereign affairs all throughout the 20th century, leading to
interventions in Libya, Mali, Somalia, Sudan, and others. This has resulted in innumerable
casualties and millions of displaced persons. Violence, combined with the existential threat of
climate change – which exacerbates conflict regions as arable and habitable land disappears across
the Sahel – is forcing people to move (Brottem 2021; People’s Coalition for the Sahel 2021). In
fact, there are more forcibly displaced people in the world today than at any other time in history,
estimated at 82.4 million people at the end of 2020 (UNHCR 2021). Finally, it is of paramount
importance to remember that each of these 82.4 million people, of which more than 1 million have
attempted the Mediterranean crossings, are their own human beings: with lives, with families, with
dreams, and supposedly with access to rights and laws. Thus, let us next examine what policies
come together to impact these peoples most in the Mediterranean.
101.3. Policy Overview
The relationship between the types of law relevant to the Mediterranean (namely, international
law, EU law, and state law) remains both complex and transient. Moreover, a law does not
necessitate complaint action – and government actors have become masters at finding loopholes
among these legal overlaps, or in crafting their laws to create voids of coverage. There is also the
more philosophical conundrum of if the judicial system is ‘real’ or even relevant if its statements
are not binding through force. This section aims to introduce answers to these pressing questions
through general overviews of the policies relevant to Mediterranean migrant crossings. This
section is in no way exhaustive, nor could it be given the nature of the material. However, more
in-depth analyses are furnished in the case studies following.
As a primer, perhaps one of the most difficult considerations relevant to the legality of
migrant crossings is the relationship between the various laws (international, regional, and state.)
These laws conflict and supersede each other; the three exist in contestation, but also without clear
hierarchy. Noll defines this predicament as a, “compliance conflict,” meaning that there are
numerous conflicts of precedence and priority among the variations of international law, EU law,
and state law (Noll 2000: 24, 56). Moreover, different legal practitioners may interpret laws
differently. This interpretation crisis becomes particularly salient in the case of international law,
which uses general wording that is open to diverse readings and applications. A change in
interpretation results in a change of application, despite the letter of the law remaining the same.
Often, this thesis will use a universalist, protection-minded stance when interpreting the law.
However, many other angles could be, and have been, considered in other applications too – these
are shown in the International Laws subsection (Noll 2000: 386). Consequently, this brief
introduction attempts to elucidate some of these theoretical contradictions before the case studies
put the laws in context.
As such, this section is divided into four parts: an overview of international law, an
overview of EU law, an overview of state law, and an introduction to relevant international norms.
1.3.1. International Law
There are several nuances of international law which must be addressed before one can embark on
an analysis of, and a call for accountability with respect to, international law. This section seeks to
11forefront these nuances before the case studies demonstrate how international law works in
practice. Of particular interest for the EU are the following questions: what is international law in
relation to the EU; when is international law applicable; how is the law interpreted; and, what are
the most foundationally salient laws?
First, it is helpful to understand the relationship of international law to other types of law
or norms. Despite international law being global in name, it is not practically advantaged in
application nor ability over regional (i.e., EU) or state law.7 Without getting too embedded in the
details,8 Noll writes, “international law is relativist by nature, tolerating states regardless of their
conduct, as long as they tolerate others by refraining from aggression” (Noll 2000: 83). This
relativist nature means that international law may act as a recommendation for action, but may not
always be actionable, particularly at the individual level. Moreover, the extent to which
international law – which is comprised of more interpretative but human-rights-friendly language
– permeates into state/regional law varies. However, as Guild mentions, there is power in
international law: “States are forced to obey the international courts and tribunals or lose
legitimacy both internally and within the international community” (2009: 22). While legitimacy
may not seem of paramount importance, it is ultimately much of what holds a state together on the
international stage.9 Thus, international law may not be prioritized over domestic law (again, note
Footnote 7,) but it may also have a strong impact on how states operate and how accountability is
generated. In other words, international law may not be the determinant of action, but it can shape
and influence behaviour.
It is next important to consider when international law is applicable. While one might
expect the answer to be a firm, “Always!” this is not so much the case. Just as national law requires
the presence of a state, so too does international law have an inseparable relationship with states.
Human rights obligations, “are understood to include extraterritorial obligations,” but only in cases
7
Technically, international law is advantaged over other types of law. The obligations that states undertake through
international treaties must be obeyed; states cannot invoke domestic law as a rationale for non-compliance. This
priority has its basis in Article 27 of the Vienna Convention on the Law of Treaties (United Nations 1969). However,
despite this priority, if there is no central authority (e.g., the UN or an international court) imposing ramifications as
a result of non-compliance, then international law is not practically prioritized.
8
One should consult Noll (2000), Chapters 1.4.1. – 1.4.3., for specific information on the relationship of international
law to other forms of law, and the justiciability as such.
9
For an extremely contemporary example, consider the ramifications Russia is facing for violating international law
by acting with aggression against Ukraine’s sovereignty (European Commission 2022b).
12where non-failed states can act (Mann 2018: 356; Milanovic 2011: 7). Put another way, if states
create conditions wherein it is infeasible for them to act, and they may argue plausible deniability
for awareness of an action, then they are not under an international legal obligation to act. Mann
demonstrates this in the Mediterranean Sea through the concept of the, “legal black hole” (Mann
2018). The idea being here that certain situations, such as crises in the Mediterranean, result in
situations where people are in situ rightless, and where states do not violate any laws by allowing
migrant deaths – despite the theoretical universality of rights. This formulation draws its origin in
the United States’ actions at Guantanamo Bay, which impacted how Australia treats migrants on
Pacific Islands, and now how the EU treats migrants in the Mediterranean. As Mann states, “States
seek to leave migrants beyond the scope of their legal duties under constitutional and/or
international human rights law” (Mann 2018: 352). So, while international law is international in
nature, it is not internationally applicable in all situations. Put another way, what Mann
demonstrates is that certain situations, such as the Mediterranean, may follow international legal
precedent while also creating a position of rightless for individuals. This concept will be explored
further through the case study of the Failed Crossing. However, suffice it to say that international
law may be applicable in all situations, but not actionable.
It is also necessary to discuss how interpretation impacts the efficacy of international law;
Put in an oversimplified way, international law creates broad parameters which domestic policy
must adapt – assuming states have signed and ratified the international laws. However, because of
these broad brushstrokes, the state is able to interpret, and thus interpellate, the specific details of
the laws. While this situation is practically logical, it drastically influences how international law
works. For example, a core tenet of international refugee law is the principle of ‘non-refoulement,’
i.e., that a state cannot, “send a refugee or asylum-seeker to a country where he or she may be at
risk of persecution,” based on, “race, religion, nationality, membership of a particular social group
or political opinion” (UNHCR 2007). This principle finds its grounding in the 1951 Refugee
Convention, which all EU states have signed onto. However, Guild notes how the EU has created
exceptions to this principle while Karageorgiou describes how the EU and states have violated the
seemingly core principle too (Guild 2009: 81; Karageorgiou 2018: 211). What this demonstrates
is that international law can be contrived depending on the way in which it is framed. There are
many ways of conducting these contrivances; two general frameworks presented by Noll are that
of the, ‘universalist,’ and the, ‘particularist’ (Noll 2000: 73-96). Very briefly and in this context,
13the ‘universalist’ approach is one wherein the examiner accounts primarily for the safety and
security of the precarious migrant over the community which will host them; the ‘universalist’
position is inclusive in approach (Noll 2000: 75). The ‘particularist’ approach, on the other hand,
states that a community only has finite resources and that migrant body is a threat to these
resources; this approach is exclusive (Noll 2000: 79). This thesis generally takes the position of
the universalist, which is a humanistic view aimed at expanding access to safety and asylum
measures. Yet, neither angle is fundamentally wrong when examining the law lex lata – that is to
say, as the law is written explicitly. As such, there is this inherent vagueness when considering
international law.10
Finally, it is helpful to understand which international bodies are most relevant for
developing legal protocols in relation to the Mediterranean Sea. There are a few that could, or do,
involve themselves: the United Nations General Assembly (UNGA); the United Nations Security
Council (UNSC); the United Nations Human Rights Council (HRC); and, the International Court
of Justice (ICJ – also known as the CIJ, or World Court).11 In very brief terms, the UNGA is the
world’s most democratic body; it is a collection of 193 member states, each with a single voice
and vote, and all of which are able to propose motions for discussion. The UNGA creates
resolutions, which are non-binding statements. Moreover, UNGA resolutions confer substantial
diplomatic pressure. The UNGA may also refer situations to the UNSC or other international
bodies. The UNSC is a collection of fifteen member states, ten of which rotate and five of which
are permanent. This body can create binding resolutions against states and has the primary
international responsibility for ensuring the maintenance of peace and security across the globe.
Next, the HRC is composed of 47 member states, again on a rotating basis. This organ’s task is to
serve as the ultimate body for promoting universal respect for human rights and for addressing
violations of human rights. Finally, the ICJ is the highest worldly court for resolving legal disputes
amongst states through binding action. The ICJ can also provide advisory opinions on legal
questions, such as the legality of Mediterranean operations, if these questions are referred to it by
10
The official guidelines for interpreting international law stem from Articles 31-33 of the Vienna Convention on
the Law of Treaties (United Nations 1969).
11
There are other institutions, but this thesis focuses on these four for their primary authority in international legal
proceedings.
14certain United Nations bodies or other authorized international organs. While there are many other
international groups, these four provide the foundation for practically all international law.
Consequently, these four bodies have produced the primary legal architecture necessary
for considering deaths in the Mediterranean Sea. The primary articles of relevance for the
Mediterranean are the 1945 UN Charter, the 1948 Universal Declaration of Human Rights
(UDHR), the 1951 Refugee Convention (RC), the 1982 UN Convention on the Law of the Sea
(UNCLOS), and the 1984 Convention Against Torture (CAT). Of additional interest is a 2015
UNSC Resolution, Resolution 2240(2015), which legitimized Frontex action between 2015 and
2016. The first five of these laws were developed out of the UNGA, while the UNSC resolution is
a by-product of the UNSC. These five are legally binding by the nature of them being foundational
parts of the United Nations – the EU states have also signed and ratified all of these laws.12
Meanwhile, the UNSC is a body capable of creating binding laws without the need for signatories
or ratification. As such, this Resolution is binding as well. Again, it is worth highlighting that there
are additional salient laws, but these ones will be in focus because of their primary importance in
the Mediterranean – a method supported by other authors too (G. Butler & Ratcovich 2016; Noll
2000).
With these international bodies in mind, it is next necessary to examine the EU’s legal
architecture.
1.3.2. European Union Law
Much of the foundation of the EU’s asylum and immigration policies stem from two policies: the
Dublin Regulation and the Schengen Agreement (Karageorgiou 2018: 123-126). Yet, while these
two hold foundational authority, there are numerous other laws at play which affect the EU’s
relationship with irregular migrants. Indeed, there are far too many to even address specifically.
Several others will be further explored throughout the case study examples. However, the purpose
12
The legally binding nature of these laws is not without contention. For example with respect to the UDHR, Noll
states explicitly: “the UDHR generally… [does not] possess the quality of binding international law” (Noll 2000: 362).
Noll’s expertise and research on the matter makes this point hard to argue. Yet, one must also realize that the UDHR
stands as the foundation for the (soon to be discussed) European Convention on Human Rights (ECHR), which is also
the cornerstone of the European Court of Human Rights (ECtHR). Because of their inclusion in EU legal architecture,
the UDHR and the other international laws mentioned could be considered binding within the European Union context.
Noll’s point speaks more generally to their universal application (i.e., beyond European Union borders – for example,
the UDHR might not be legally applicable in Antarctica.)
15of this section is to provide overviews to three key aspects of Mediterranean migration which have
their roots in EU law: firstly, the practicalities of EU migration stemming from Dublin and
Schengen; secondly, the (questionable) right to immigrate into the EU; thirdly, the stance of the
EU’s border protection agency, Frontex.
As mentioned, the core of EU migration law has its root in two main policies: Schengen
and Dublin (Karageorgiou 2018: 123-124). Yet, these two can be seen somewhat in contest: while
the Schengen Agreement exists to include certain populations, the Dublin Regulation seeks to
exclude other populations. The purpose of the Schengen Agreement is to guarantee four freedoms
for the economic communities involved in the ‘Schengen area’ – an area which encompasses much
of the EU so as to effectively provide the four freedoms to EU citizens. These freedoms are: free
movement of goods, free movement of capital and payments, free movement of services, and free
movement of people. This final freedom is of the most interest to this thesis, and it is also the only
freedom which remains in flux since the foundation of the Schengen Agreement. A core foundation
of the Schengen Agreement, the 1957 Treaty of Rome initially only granted free movement of
workers within the European Economic Community (Rome 1957). It was not until the European
Community became the EU in 1992 via the Maastricht Treaty that citizens of EU member states
were granted unfettered freedom of movement (Maastricht 1992). Despite the supposed free-ness
of this freedom, freedom of movement is both contentious and precarious among the Schengen
states. Hansen describes this precarity, quoting Blauberger et al., by writing: “a ‘shift has taken
place in the [European Court of Justice (ECJ)]’s case law on EU social citizenship… The Court
has not only stopped extending cross-border welfare access to further categories of EU citizens,
but it has partly reversed its legal doctrine towards a more restrictive approach’” (Blauberger et al.
2018; Hansen 2021: 191). Indeed, the unchecked freedom of movement for EU citizens has
brought upon new levels of migration control through increased surveillance and securitization
measures. This surveillance comes in both digital and physical forms, at external borders through
Frontex (discussed below) and at internal borders through police checks and cross-border police
collaboration (European Commission 2022a). All this to say that the foundations of the EU’s
seemingly most-open migration policy have their roots in economic matters first and foremost.
Moreover, the EU has been investing increasingly in surveillance and securitization as more
countries envelop themselves in the open-borders agreements – this investment ultimately has
ramifications for irregular migrants and asylum-seekers as well.
16On the opposite side, the Dublin Regulation is fundamentally a policy to decry migration.
The Dublin Regulation (also known as Dublin III, Dublin, or the Dublin Convention) is a pact
among the EU states to determine who is responsible for asylum seekers entering the EU. This
Regulation arose out of Schengen, as EU states needed new controls over the movement of asylum-
seekers in a borderless EU. While Dublin has gone through several iterations, the general core of
the regulation is that whichever state a migrant sets foot in first once having entered the EU is the
state that is responsible for that individual’s asylum application, regardless of where the individual
may live when filing the application (Migration and Home Affairs 2020). Put in context, if a vessel
sails the Mediterranean and lands in Italy, and then a migrant from the vessel journeys to Germany
and files for asylum, Germany is under obligation by the Dublin Regulation to deport this
individual to Italy, and Italy is under obligation to examine the migrant’s asylum application. One
can see quickly how this regulation breaks down when considering how only states on the
periphery are liable for asylum-seekers in the event of rapid mass migration movements, such as
the start of the Syrian civil war or the Russian aggression against Ukraine.13 This fact has lead
Karageorgiou to refer to Dublin as a punishment against the states that allow asylum-seekers to set
foot on their soil (Karageorgiou 2018: 126). As a result of the regulation’s penal nature, Dublin
rewards states for having harsh border controls and restrictive entry practices because these
practices mean states will receive fewer asylum applications and thus spend less money, using the
often-cited misnomer of people being a financial burden to states. This punishment system can be
seen playing out in how the EU states tend to handle visas. While no visa is needed to travel from
one EU state to another, or between an EU state and an ally country, EU states will typically14
impose visa requirements on states when they suspect a large asylum-seeking population might be
generated from that country in the future (Hansen & Brian Hager 2010: 147). In this manner, EU
states stop asylum-seekers from even getting near their country by vetting them with a visa before
13
There are nuances to the Dublin Regulation not being discussed here, as they do not pertain to the Mediterranean
situation. However, for the sake of thoroughness, it is important to note that central countries (as opposed to those on
the periphery) may still be liable for asylum-seekers principally. Through Dublin, this can occur if an asylum-seeker
is able to fly a plane directly to an interior country, or if someone seeks asylum while inside an interior country after
overstaying a visa, for example. Moreover, this ‘breaking down’ is further evidenced through the modern Ukrainian
case, wherein a Temporary Protection Directive has been filed to re-home asylum-seekers beyond the EU periphery
because the asylum systems in Poland are unsuitable to handle the crisis (Government Offices of Sweden 2022).
14
‘typically’ is used here because this has been the case for practically every conflict situation in the modern era,
except for the extremely contemporary example of Ukraine (Hansen & Brian Hager 2010: 147). At the time of writing,
visa restrictions have been waived for certain Ukrainians to enter the European Union under the ‘Temporary Protection
Directive’ (Government Offices of Sweden 2022).
17the would-be asylum-seeker could travel. Thus, border controls are hard-lined, core states may
avoid accountability, and periphery states are left with the fallout of mass migration events. There
is much more to be discussed in relation to the Dublin Regulation and its ramifications on
Mediterranean deaths – further nuances are discussed below, under State Law.
As can be hinted at by the inclusionary façade of Schengen in contrast to the exclusionary
position of Dublin, EU policy as a whole is not made for welcoming outsiders. While freedom of
movement is a right enshrined in foundational EU treaties, policies, and international declarations,
the type of movement is not always specified, and who that movement is for varies drastically. EU
citizens have the right and freedom to move throughout the EU, although even this is changing.
However, for third-country nationals (TCNs), people who are not from the EU and are attempting
to enter the EU (such as the case for a Syrian attempting a Mediterranean crossing from Libya) the
EU provides no guarantees whatsoever that the TCNs may enter. EU policy – and international
policy – provide a right to emigration, to leave one’s own country, but they provide no right to
enter another country. Noll points out this predicament through two legal documents: in the
international context, through the International Covenant on Civil and Political Rights (ICCPR);
in the EU context, through the 1963 Fourth Protocol to the European Court of Human Rights
(ECtHR). Both documents state similarly that there is always a right to leave any given country,
but there is no right to enter another country (Noll 2000: 378-379). Logically, one might think that
a right to leave one place must necessitate a right to enter another, or else a person is made stateless.
Yet, according to a particularist interpretation of these laws, this is simply not the case (Noll 2000:
386). This phenomenon is at the heart of most tensions between the EU, human rights groups, and
prospective migrants. Moreover, it is this arbitrary tension which EU states seize hold of as they
develop exclusionary policy.
Penultimately, before discussing several other relevant EU migration laws, it is necessary
to introduce the physical arm of all this legal doctrine: Frontex. Frontex is the EU’s Border and
Coast Guard Agency. Founded in 2004, the agency is the spearhead for European operations in
the Mediterranean. While the agency has always existed in a controversial, gray area, Frontex truly
came into focus in 2014 when it launched Operation Triton to replace an Italian border program,
Mare Nostrum, in the Mediterranean (ECRE 2014; Mann 2018: 354). The most notable differences
between the Italian program and that of Frontex are that Operation Triton neither had an obligation
18to patrol any waters beyond Italy’s search-and-rescue zones nor did it have a rescue mandate
(Mann 2018: 354). Rather, the Operation was singularly focused on border protection. This limited
directive of Operation Triton is complemented by the fact that, beyond the Italian (or Greek, etc.)
jurisdiction, there were no duties for the European authorities to act to protect human rights and to
save human lives (Mann 2018: 356). And, as Besson notes, “[t]here can be no human rights duties
without human rights, and the existence of human rights depends on jurisdiction in the first place,”
(Besson 2012: 868). As such, when Operation Triton was constrained into a smaller patrol area as
opposed to Mare Nostrum, the EU and Frontex were effectively shrinking the range of space within
which asylum-seekers may access their ‘fundamental’ human rights. In the present day, Operation
Triton has now been replaced by an Operation Sophia, an Operation Themis, and an Operation
Irini.15 There are nuances to each Operation, but they all exist under similar veils and mandates.
Consequently, without getting too involved in the demarcations of territorial waters and outside
policies at this point (more to be discussed in examples), one sees already how the EU’s
manifestation of policy is inherently designed to avoid rescue operations and to ignore human lives
altogether.
As with the international laws, there are several EU laws which are of particular salience
to discussions of the Mediterranean Sea. Foremostly is the European Convention on Human Rights
(ECHR), which is the primary source material for the European Court of Human Rights’ (ECtHR)
judicial rulings (Council of Europe 1950). The ECHR is generally aligned with the Universal
Declaration of Human Rights (UDHR) – the ECHR even references the UDHR as its primary
source. Then, the ECtHR is able to make binding decisions against states based on its
determinations in-line with the ECHR. Next, the Common European Asylum System (CEAS) and
the Dublin Convention are of importance – the CEAS being a set of binding directives stemming
from Article 78 of the binding Treaty on EU, and the Dublin Convention having already been
explained (European Commission 2008: 76-77; Migration and Home Affairs, European
Commission 2020). Of most importance in the aforementioned Article 78 is a guarantee of non-
refoulement and a commitment that all states party to the EU will handle asylum-seeker cases in
an equitable manner. Next, of critical importance are the operation mandates which the EU has
15
Note that these Operations are not in sequential order per se, as their mandates and search areas have varied. Yet,
these are all similar Frontex Operations which can be amalgamated generally to discuss EU actions in the
Mediterranean. It is made clear later in the paper where or when there are substantial differences in the mandates of
these operations.
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