Statement by the Special Rapporteur on the human rights of migrants, François Crépeau, and the Chair of the UN Committee on the Protection of the Rights of Migrant Workers and Members of Their Families, Francisco Carrión Mena

23 October 2015

“We are deeply concerned by the recent adoption by the United Nations Security Council of a resolution which allows the European Union to inspect, possibly seize and use “... all measures commensurate to the specific circumstances in confronting migrant smugglers and human traffickers in full compliance with international human rights law” against boats off the coast of Libya in cases where reasonable grounds exist to suspect that such boats are being used for the smuggling of migrants from that country.

International cooperation is certainly needed to combat organized criminal enterprises from engaging in such activities, but the Security Council resolution misses the mark.

Attempting to seal borders and the over-emphasis on the securitisation of borders is not going to reduce irregular migration in the long run. EU Operation Sophia – which allows for EU naval vessels to board, search, seize and divert vessels suspected of being used for migrant smuggling on the high seas– is an example of the States’ naivety in thinking that sealing borders can work.

This operation cannot succeed at reducing the smuggling operations, as long as prohibition policies and practices create a lucrative market for smuggling operations. It might slow down the smuggling operations for a time, as smugglers reorganise, but they will reorganise and much faster than expected. What is likely to happen is that smuggling operations will simply be diverted to other borders. Smugglers will continue to skillfully adapt, as long as there is a market to exploit.

Strengthening the capacity of transit countries to stop irregular migration on their territory and resorting to military means, without offering migrants long term mobility solutions, and without effective human rights guarantees, does not change the conditions that create the market and can only compound the human rights violations.

Taking over the mobility market from the smugglers, by offering safe, regular and cheap mobility solutions to migrants, is the only long term plan through which States could make a real dent in this criminal activity, until such time as the root causes of irregular migration, such as conflict, violence, poverty and poor governance, can be eliminated.

The Security Council decision is another example of States missing a key opportunity to protect the rights of migrants.

The EU could have used this as an opportunity to seek the support of the international community and request assistance in providing safe regular channels for migration and places for refugee resettlement. With no other regular alternative available to reach safety and the opportunity of building a future for themselves and their children, people will continue to pay smugglers and risk their lives through dangerous journeys.

A resolution under Chapter 7 authorizes the use of force. In the resolution, EU member States are authorised to use ‘all measures commensurate to the specific circumstances in confronting migrant smugglers or human traffickers in full compliance with international human rights law’.

It is extremely difficult to imagine how EU member States will take action against smugglers’ vessels without putting at risk the lives of the refugees and migrants on board. It is also not clear how such actions will not amount to ‘push-backs’ or collective expulsions, and how using such force will be compatible with the EU member States’ international human rights and humanitarian law obligations which require that they respect the principle of non-refoulement and allow for proper individual assessments.

As for refugees, and as the present situation now stands, only a handful of countries are accepting them, either as transit countries or as destination countries. Such countries should be praised for their efforts, their determination and their capacity to articulate a meaningful long term vision of how to respond intelligently to the challenge, but they cannot be expected to continue to shoulder this responsibility all by themselves.

What is required is a commitment by all EU member States – and hopefully many more countries in the Global North and in the Global South – to resettle over a certain number of years a meaningful number of refugees (most probably in the millions) directly from transit countries, thus offering them a real alternative to seeking risky and costly mobility services from the smugglers. EU member States would then reclaim this mobility market from the hands of the smugglers.

The EU must also acknowledge and adequately respond to the needs of its low-wage labour market. We call on European and national authorities to quickly open many more regular migration avenues for migrants at all skills levels, and to firmly repress labour exploitation through the effective implementation of the employer sanction directive and the strengthening of labour inspections.

Whether considered migrants, asylum seekers or refugees, all are entitled to a protection response based on international law, in particular the human rights law, humanitarian law, and refugee law treaty framework. All policies and practices aimed at effectively responding to this phenomenon of increasingly mixed migration movements, as well as at addressing the situation of migrants in transit and destination countries, must be fully in line with these norms and principles established by the international community.

We urge the EU to take, as a matter of urgency, the important step of opening creative, regular and safe channels for migration – for both migrants and refugees – thereby ensuring that they are incentivised to avoid having recourse to smugglers and that the precariousness of their situation no longer leads them to risk their lives and suffer exploitation or human rights abuse at the hands of recruiters, smugglers, or unscrupulous employers or landlords.”