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Lost at Sea

Published online by Cambridge University Press:  06 March 2019

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This essay aims to expand the definitional contours of the “lost generation” discussed in this special section of the German Law Journal. A reflection on the existential loss experienced by many young Europeans must also acknowledge, for the record and for reasons of relative salience, those who have literally drowned in the waters of southern Europe in their quest for a better future. Their youth has been lost in a true—not just metaphorical or metaphysical—sense. The per-day death toll reached its peak on 3 October 2013, when over three hundred bodies were retrieved off the coast of Lampedusa by Maltese and Italian rescue forces. The just-concluded summer brought another tragic surge in Mediterranean migration, including more deadly shipwrecks.

Type
Special Section: Europe and the Lost Generation
Copyright
Copyright © 2014 by German Law Journal GbR 

References

1 See Webber, Frances, The Cradle or the Grave? EU Migration Policy and Human Rights, 23 State Watch J. 3, 4 (2014) (providing details of the tragedy).Google Scholar

2 Migrants Drown as Libya Boat to Italy Sinks, BBC News (May 12, 2014), http://www.bbc.com/news/world-europe-27379493; Tidal Wave, The Economist (July 5, 2014), http://www.economist.com/news/europe/21606301-more-horrific-deaths-mediterranean-tidal-wave; Nuova tragedia a Lampedusa. Affonda gommone, diciotto morti, Il Corriere della Sera (Aug. 24, 2014), http://www.corriere.it/cronache/14_agosto_24/nuova-tragedia-lampedusa-affonda-barcone-diciotto-morti-282e2882-2b5c-11e4-9f19-fba1b3d7cb6f.shtml.Google Scholar

3 See Thym, Daniel, EU Migration Policy and Its Constitutional Rationale: A Cosmopolitan Outlook, 50 Common Mkt L. Rev. 709 (2013) (“Europe's mission of promoting transnational freedom is not replicated in the Area of Freedom, Security and Justice. Instead of dismantling borders, EU activities re-confirm the relevance of borders towards third States.”).Google Scholar

4 By focusing on the subset of migrants that reach the coast of Lampedusa by means of make-shift boats, this essay excludes from its scope visa-based or otherwise pre-authorized immigration. It is meant to reflect on short and medium term reception policies, as opposed to the possibilities for inclusion that open up for some TCNs in the long term. See, e.g., Council Directive 2003/109, 2003 O.J. (L 16/44) (EC) (concerning the status of third-country nationals who are long-term residents); Council Directive 2003/86, 2003 O.J. (L 251/12) (EC) stating the right to family reunification).Google Scholar

5 See Consolidated Version of the Treaty on the Functioning of the European Union art. 125, Oct. 26 2012, 2012 O.J. (C 326) 47 [hereinafter TFEU].Google Scholar

6 See TFEU art. 79, paras. 1, 2(c); Directive 2008/115/EC, of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 2008 O.J. (L 348).Google Scholar

7 See Strumia, Francesca, Supranational Citizenship and the Challenge of Diversity 105 (2013) (highlighting the fact that EU law promotes the internal mobility of citizens but at the same time “immobilizes” migrants). Notably, even if granted refugee status, immigrants must often remain in the state of first entry if they care to obtain long-term residence permits.Google Scholar

8 See infra Part C. Minimum standards of reception have recently been specified in greater detail. See Directive 2013/33/EU, of the European Parliament and of the Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection, 2013 O.J. (L 180) 96.Google Scholar

9 Gravier v. City of Liege, CJEU Case C-293/83, 1985 E.C.R. 593.Google Scholar

10 See Somek, Alexander, From Workers to Migrants: Exploring the Changing Social-Democratic Imagination, 18 Eur. L. J. 711 (2012).Google Scholar

11 Alopka v. Ministre du Travail, de l'Emploi et de l'Immigration, CJEU Case C-86/12, 2013 (not yet reported).Google Scholar

12 Marshall, Barbara, The New Germany and Migration in Europe 119 (2000).Google Scholar

13 Witte, Bruno de, Institutional Variation across Policy Fields in the Evolution of European Union Law, 20 Maastricht J. Eur. & Comp. L. 465, 467–68 (2013).Google Scholar

14 Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at Their Common Borders, 2000 O.J. (L 239) 19.Google Scholar

15 Commission Regulation 562/2006, of the European Parliament and of the Council of 15 March 2006 Establishing a Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), 2006 O.J. (L 105/1).Google Scholar

16 Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities, 1997 O.J. (C254/1).Google Scholar

17 The pillars of the Dublin System were, and still are (in revised form), Council Regulation 343/2003, Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-Country National, 2003 O.J. (L 50/1) [Dublin Regulation]; Council Regulation 2725/2000, Concerning the Establishment of “Eurodac” for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, 2000 O.J. (L 316) [Eurodac].Google Scholar

18 Council Regulation 2007/2004, Establishing the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, 2004 O.J. (L 349/1) [Frontex].Google Scholar

19 See Marshall, , supra note 12, at 119.Google Scholar

20 United Nations High Commissioner for Refugees, 2014 UNHCR regional operations profile—Northern, Western, Central and Southern Europe, http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48e5f6.Google Scholar

21 M.S.S. v. Belgium and Greece, ECHR App. No. 30696/09 (Jan. 21, 2011), http://hudoc.echr.coe.int/.Google Scholar

22 See Tsoukala, Philomila, Narratives of the European Crisis and the Future of (Social) Europe, 48 Texas Int'l L.J. 241–66 (2013) (analyzing and critiquing the common depiction of Greece as a profligate and immoral country in the context of the Euro-zone crisis).Google Scholar

23 Hirsi Jamaa and Others v. Italy, ECHR App. No. 27765/09 (Feb. 23, 2012), http://hudoc.echr.coe.int/ [hereinafter Hirsi].Google Scholar

24 Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR 2728/13, para. 41 (Jan. 14, 2014), https://www.bundesverfassungsgericht.de/en/decisions/rs20140114_2bvr272813en.html (“[F]iscal redistribution [is] not entailed in the integration programme of the European Treaties. On the contrary, independence of the national budgets, which opposes the direct or indirect common liability of the Member States for government debts, is constituent for the design of the monetary union.”). See Dagmar Schiek, The German Federal Constitutional Court's Ruling on Outright Monetary Transactions (OMT) - Another Step towards National Closure?, 15 German L.J. (2014).Google Scholar

25 Commission Communication Examining the Creation of a European Border Surveillance System (Eurosur), COM (2008) 68 final (Feb. 13, 2008).Google Scholar

26 Italy, for instance, was no longer able to enforce its bilateral agreements with Libya, concerning prevention of clandestine immigration, following the Libyan revolution which broke out in of 2011. Hirsi Jamaa, ECHR App. No. 27765/09 at para. 19-21.Google Scholar

27 Hansen, Peo & Hager, Sandy Brian, The Politics of European Citizenship 162-64 (2010) (comparing the Tampere Program of 1999 and the Hague Programme of 2004).Google Scholar

28 The Stockholm Programme—An open and secure Europe serving and protecting the citizens, 2010 O.J. (C 115/1). See also Communication on Delivering an Area of Freedom, Security and Justice for Europe's Citizens: Action Plan Implementing the Stockholm Programme, COM (2010) 171 final (Apr. 20, 2010) [Stockholm Action Plan].Google Scholar

29 The Stockholm Program yielded two revised regulations (Dublin III and Eurodac) and two revised directives (Conditions of Reception and Asylum Procedures, 2013 O.J. (L 180) and the revised Qualification Directive, 2011 O.J. (L 337)).Google Scholar

30 Commission Regulation 1052/2013, of the European Parliament and of the Council of 22 October 2013 Establishing the European Border Surveillance System (Eurosur), 2013 O.J. (L 295/11) [hereinafter Eurosur].Google Scholar

31 Council Eur. Union, Council Adopts Regulation Establishing the EUROSUR System ( 2013), http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/139099.pdf.Google Scholar

32 Eur. Comm'n, Implementation of the European Neighbourhood Policy in 2013, Regional Report: A Partnership for Democracy and Shared Prosperity with the Southern Mediterranean Partners (2014), http://eeas.europa.eu/enp/pdf/2014/regional/pdsp_en.pdf.Google Scholar

33 See the EU mobility partnership agreements signed with Morocco (June 2013) and Tunisia (March 2014).Google Scholar

34 See Eurosur, , supra note 30 (“Eurosur will contribute to improving the protection and the saving of lives of migrants. The Council recalls that search and rescue at sea is a competence of the Member States which they exercise in the framework of international conventions.”).Google Scholar

35 Caprara, Giovanni, L'Operazione Mare Nostrum, Eurasia (Nov. 4 2013), http://www.eurasia-rivista.org/loperazione-mare-nostrum/20335/ (noting that assistance has come from Finland first, and then France and the Netherlands).Google Scholar

36 Gaiani, Gianandrea, Mare Nostrum, una nave da guerra da mezzo miliardo per i soccorsi, Il Sole 24 Ore (June 7, 2014), http://www.ilsole24ore.com/art/notizie/2014-06-07/mare-nostrum-nave-guerra-mezzo-miliardo-i-soccorsi-101032.shtml?uuid=ABXMFoOB&fromSearch.Google Scholar

37 Euro-Mediterranean Human Rights Network, Tunisia-EU Mobility Partnership: A Forced March towards the Externalization of Borders (2014), http://www.euromedrights.org/eng/wp-content/uploads/2014/03/PR_Tunisia_17-03_EN.pdf.Google Scholar

38 Strumia, , supra note 7, at 105.Google Scholar

40 XIII, Leo, Rerum Novarum (1891): Leonis XIII P. M. Acta, XI, 97 (1892).Google Scholar

41 See most recently the joint IOM, UNHCR and ICMC project entitled “Strengthening the response to emergency resettlement needs,” available at http://www.resettlement.eu/page/emergency-resettlement-project.Google Scholar

42 Council Directive 2001/55/EC, of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts between Member States in Receiving Such Persons and Bearing the Consequences Thereof, 2001 O.J. (L 212/12). Chapter VI of this directive, under the heading “Solidarity,” contemplated the possibility for member states to volunteer as receivers in the event of a mass influx of displaced persons. This would imply that immigrants would not be confined to the port of first entry. However, as the DG Home Affairs states on its website, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/temporary-protection/index_en.htm, the provisions within this Directive have not been triggered so far.Google Scholar

43 UNCHR, EUREMA I and II: Pilot Project for Intra-EU Re-allocation from Malta, http://unhcr.org/4ef338859.pdf.Google Scholar

44 Eur. Parl. Ass., Resettlement of Refugees: Promoting Greater Solidarity, Doc. 13460 (2014).Google Scholar

45 Witte, Floris De, EU Law, Politics, and the Social Question, 14 German L.J. 581, 588 (2013) (“Answers to the social question that presuppose different, or more stringent regulatory or redistributive commitments, are structurally less likely to be implemented successfully in Europe.”).Google Scholar

46 Council Decision 2000/596/EC, of 28 September 2000 Establishing a European Refugee Fund, 2000 O.J. (L 252/12) (subsequently renewed). See also Council Decision 2007/435/EC, of 25 June 2007 Establishing the European Fund for the Integration of Third Country Nationals for the Period 2007 to 2013 as Part of the General Programme Solidarity and Management of Migration Flows, 2007 O.J. (L 168).Google Scholar

47 Strumia, , supra note 7, at 291–300.Google Scholar

48 Regulation 604/2013, of the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person (Recast), 2013 O.J. (L 180/31).Google Scholar

49 TFEU art. 78(2)(e).Google Scholar

50 Kennedy, Duncan, A Semiotics of Legal Argument, in 3 Collected Courses of the Academy of European Law (Yearbook) 1992, Vol. III – Book 2: The Protection of Human Rights in Europe 309 (Academy of European Law ed., 1994).Google Scholar

51 Nicolaïdis, Kalypso, ‘Southern Barbarians‘? A Postcolonial Critique of EUniversalism, in Echoes of Empire: Memory, Identity, and Colonial Legacies 247, 249 (Kalypso Nicolaïdis, Berny Sèbe & Gabi Maas eds., 2014).Google Scholar

52 Id. at 249–53.Google Scholar

53 Hansen, Peo & Jonsson, Stefan, Building Eurafrica: Reviving Colonialism through European Integration, 1920-1960, in Echoes of Empire: Memory, Identity, and Colonial Legacies 184, 185 (Kalypso Nicolaïdis, Berny Sèbe & Gabi Maas eds., 2014).Google Scholar

54 Id. at 185 (“[I]t was widely agreed that Europe was overpopulated, an imbalance that could be resolved by the emigration and resettlement of surplus population in the ‘empty’ territory south of the Mediterranean.”).Google Scholar

55 Id. at 195.Google Scholar

56 The case of the rise and fall of the wine industry in pre- and post-independence Algeria is very much on point. See Daniela Caruso & Joanna Geneve, Trade and History: Commerce between the EU and Algeria in the Wake of Camus's Centennial (Boston Univ. School of Law, Public Law Research Paper No. 14-49; Boston Univ. School of Law, Law and Econ. Research Paper No. 14-49, 2014).Google Scholar

57 See Nancy Fraser & Alex Honneth, Redistribution or Recognition?: A Political-Philosophical Exchange (2013).Google Scholar

58 See, e.g., Pogge, Thomas, World Poverty and Human Rights (2002) (arguing that affluent societies are at least partly responsible for others' poverty). Cf. John Rawls, the Law of Peoples (1999).Google Scholar

59 Thym, , supra note 3.Google Scholar