Controversial Malta plan mooted ‘legal way’ of pushing back migrants

The Maltese presidency of the European Council mooted a plan for the European Commission to explore a controversial way to send migrants and refugees back to Libya, by suspending the international principle of ‘non-refoulement’ in times of crisis.

The proposal, carried in a non-paper presented to home affairs ministers, contained a stunning suggestion to suspend the international humanitarian rule that prohibits pushbacks of migrants fleeing persecution, in times of particular crisis.

Malta was said to enjoy not only the backing of Mediterranean EU states, but also those northern countries who will have elections this year and are facing an onslaught from far-rightists and nationalist populist parties.

In an aide-memoire that was later evaluated by the European Commission, Malta was told that suspending non-refoulement would raise “complex legal issues” under European and international, as well as inside the European Court of Justice and the European Court of Human Rights.

“The Commission could examine how to interpret and apply this principle [to] take into account the circumstances prevailing in crisis situations,” Malta was told ahead of this week’s meeting of EU home affairs ministers.

On Sunday MaltaToday also reported that Malta was mooting the idea of striking a deal with other North African countries such as Algeria and Egypt, after paying Libya to stem the flow of migrants leaving its shores by boat, so that the EU could organise “humanitarian safe passages and corridors, that would get recognised asylum seekers to Europe safely.”

The idea of striking a deal with Algeria and Egypt – countries with poor human rights records – was also mentioned by foreign minister George Vella, who however recognised the difficulty of implementing such a plan.

The proposals were part of a non-paper presented by Malta, as a starting point for discussion.

But this week, as EU interior ministers met in Malta to discuss the issue, EU Commissioner for Migration Dimitris Avramopoulos made it clear that the replication of a ‘Turkey-style’ deal with Libya was not possible.

“The member states fully agree with the EC that we should treat every case separately,” he said. “Libya is not Turkey and what we did in Turkey cannot be replicated in Libya.”

Ministers said on Thursday that if no further action is taken, uncontrolled irregular migration flows along the Central Mediterranean route will continue at the very high level recorded in 2016.

“As the vast majority of migrants attempt to cross the Mediterranean from Libyan shores, the EU Member States, notably those most affected by the flow, Italy and Malta, are working closely with the Libyan authorities to control these flows and save lives at sea.”

An ongoing project in Southern Libya by the International Organisation for Migration has been under way since May 2016, to addresse host communities, internally displaced persons and migrants. Ministers want to see whether the project should be extended and replicated elsewhere.

The EU already has a training mission in Mali for border control, and in Niger to support authorities fighting human trafficking. The plan is to expand these missions across Mauritania, Burkina Faso and Chad.

READ MORE European Commission: Managing migration flows

The ministers want to stop trafficking at the Niger-Libya border, but to do that means displacing communities whose livelihoods depend on migrant smuggling.

“A European Migration Liaison Officer and a European Border and Coast Guard Agency liaison officer will be shortly deployed to Niger to help the EU further step up its capacity to discuss and develop cooperation with Nigerien authorities in tackling irregular migration and in better organising the migration management.”