Classe accademica di Scienze Sociali
Settore di Scienze Politiche
O
PERATION
S
OPHIA
The controversial involvement of the EU in the
Central Mediterranean
FILIPPO ROMANENGO
Anno Accademico 2018 – 2019
Docente relatore:
Prof. A. de Guttry
Docente tutor:
Prof.ssa M. Alabrese
2
S
UMMARY:
INTRODUCTION ... 3
I. OPERATION SOPHIA’S BACKGROUND – NATIONAL AND INTERNATIONAL OPERATIONS IN THE CENTRAL MEDITERRANEAN SINCE THE OUTBREAK OF THE LIBYAN CRISIS ... 7
II. GENESIS OF AN OPERATION ... 15
1. OPERATION SOPHIA IN THE FRAME OF THE CSDP ... 15
2. STRUCTURE AND CONTENTS OF THE MANDATE ... 21
3. THE OPERATION IN THE LIGHT OF UNRESOLUTION 2240 ... 24
III. THE IMPLEMENTATION ... 32
1. THE SIX MONTHLY REPORT AND THE FIRST DIFFICULTIES ... 32
2. TOWARDS THE EVOLUTION OF THE MANDATE: ... 43
A. The Council Decision (CFSP) 2016/993 of June 20th, 2016 ... 43
B. The Council Decision (CFSP) 2017/1385 of July 25th, 2017 ... 49
IV. THE LAST PHASE ... 54
1. 2018’S NEW EQUILIBRIA: PROMOTERS AND DETRACTORS ... 54
2. TOWARDS THE END OF THE OPERATION ... 58
V. CRITICAL ASSESSMENT OF THE OPERATION ... 65
CONCLUSION ... 74
3
I
NTRODUCTION
Since the beginning of the XXI century the issue of irregular migration across the Mediterranean Sea to the European shores has played a primary role in influencing and orienting the policy agenda of the Southern European Countries and of the European Union as a whole. Until the first half of the second decade of the century, this problem was primarily seen as a national one. The turbulences that since 2011 affected a significant part of the Middle East and North Africa (MENA) region completely changed this state of things. The Syrian civil war originated an immense outflow of asylum-seekers aiming at applying for the status of refugee in the European Union. In the meantime, the Arab Spring and the subsequent international intervention plunged Libya into a turmoil from which is has not emerged yet. The almost complete lack of a central government and of law enforcement authorities allowed the transformation of Libya into the main hub for migrant launch activity. Thus, while with Syria it had been possible to tackle the problem of the human flows with the – controversial – agreement signed with Turkey in March 2016, such a strategy could not be adopted with respect to Libya and the Central Mediterranean. Until 2014 Italy tried to deal with the human fluxes across the Central Mediterranean on its own, while simultaneously trying to achieve a more significant involvement and contribution by its European partners. A first sign of an enhanced European involvement was given by the launch of Frontex Operation Triton in Autumn 2014. Nevertheless, such an operation appeared to be blatantly
inadequate due to the increased number of deadly shipwrecks, culminated by the disaster of April 18th, 2015. This opened the way to a seemingly significant change of policy and approach by Brussels.
With the launch of Operation Sophia, the European Union seemed willing to demonstrate its
credibility as a security actor capable of conducting autonomous actions in areas of primary interest for the Union itself, while at the same time remaining true to its identity and values. In formal terms, the Operation represented an innovative format if compared with the EU’s previous maritime security and defence missions. Indeed, it combined the Union’s internal and external security dimensions, it included the possibility of the EU engaging in peace enforcement-type of activities and it aimed primarily to the disruption of the human trafficking system, instead of focusing on the rescue of migrants themselves1. Moreover, in operational terms, Brussels – in an
1 Cf. K. FRANKENTHAL, The EU as a Maritime Security Actor in the Mediterranean Sea, Institute for Security Policy at
4 uncommon display of cohesion and speed – was able to quickly elaborate a mandate, to organise an Operation that collected the contribution of 25 Countries and to subsequently deploy it in the concerned area. Apparently, this showed to its international allies its willingness to give its contribution to global security and its increasing importance as a maritime security and defence actor in the region. In view of the above, Operation Sophia is to be considered a crucial turning
point of Europe’s foreign policy strategy and activity of the last years. Moreover, the Operation could be seen as a kind of acid test of the Union’s performance in the area of security, both in its internal and external dimension.
Four years after the launch of this Operation, it is to be noted that the outcomes appear to be rather deluding. On April 20th, 2015, at the end of a Meeting of the Council of the European Union it had been proclaimed that the forthcoming Operation’s work would be taken forward along three different strands: a) the fight against organised crime networks and human traffickers; b) more effective efforts to save lives at sea; c) a fairer sharing of responsibilities regarding resettlement and relocation projects2. When a few weeks later the Operation was launched, it was
given a mandate in accordance with these goals. This notwithstanding, in the years that followed the mandate was modified on multiple occasions. Both in 2016 and in 2017 new tasks were added to the original mandate, something that ended up by distorting the original aims of the Operation. In the end, last March, after almost a year of harsh political confrontation within the EU, the Operation was deprived of all its naval assets – quite an odd situation for naval mission with the abovementioned original goals.
Through a comprehensive analysis of Operation Sophia’s development and a chronological and
systematic study of its mandate’s evolution, in this work it will be argued that the roots of the failure of the Operation are to be found in its very mandate. Indeed, despite the encouraging impressions of the initial steps and declarations by the Brussels authorities, the mandate the Operation was given soon turned out to be ill conceived and especially defective with respect to several crucial factors on which the Member States were never really able to find an agreement. Moreover, it will also be argued that even the additional tasks the Operation was subsequently given were a direct consequence to the mandate’s original defectiveness. Indeed, they merely represented an attempt to address the growing difficulties and the impasse in which the Operation started to find itself shortly after its starting. As the months passed, more and more criticalities –to
5 a large extent due to the inadequacy of the mandate – came up. The incapacity to properly address them resulted in growing disunity among EU Member States and eventually led to the virtual end of the Operation. Contrarily to the initial enthusiasms and forecasts, it can be argued that with Operation Sophia the European Union did not actually demonstrate a particularly significant
degree of credibility, nor of effectiveness, as a security actor. In short, although apparently overcoming its internal divisions, Eunavfor Med’s flawed mandate arguably reflected them almost entirely.
With the aim of giving a comprehensive analysis of Operation Sophia and its mandate, in this work
a chronological and systematic study of their development is done. The time frame spans from 2013 to 2019. In fact, even though a background introduction concerning the situation that preceded and immediately followed the 2011 turbulences is made, the bulk of the work is devoted to the period between the launch of Operation Mare Nostrum in 2013 and the virtual end of
Operation Sophia in 2019. Needless to say, in order to show what led to the crucial decisions of
the winter of 2019, a special focus is dedicated to the elaboration, launch, implementation and evolution of Operation Sophia and its mandate.
This work consists of introduction, five chapters, conclusion and bibliography. The first chapter contains an historical background regarding the situation that preceded 2011, especially focusing on the relationship existing between Mr Berlusconi’s Italy and the Libya of the then Quaid Muammar Gaddafi with respect to the management of the human flows. It is then given an account of the national and international operations in the Central Mediterranean since the outbreak of the Libyan crisis. The second chapter contains an analysis of the diplomatic processes that led to the elaboration of Sophia’s mandate, as well as a detailed scrutiny of the original mandate itself with
respect to its structure and contents. The chapter ends with an account of the international reception of the Operation, especially within the UN. The third chapter is dedicated to Operation
Sophia’s implementation and to the difficulties that started to emerge with respect to the
implementation of the second part of the mandate. In the light of the individuated problems, it subsequently analyses the first steps (2016 and 2017) aimed at the modification of the original mandate that led to its significant extension and arguable distortion. The fourth chapter is devoted to the last phase of the Operation which was characterised by a harsh confrontation between its promoters and detractors and by a political dispute that eventually led to Sophia’s virtual end. In
the fifth chapter, a detailed and critical assessment of the Operation is given, concerning the mandate, the first phase of the implementation and the subsequent evolution. In the conclusion, it
6 is argued that the critical and original vulnus of the entire operation is to be considered its
essentially flawed mandate. Indeed, it is suggested that – reflecting a situation of disunity and of divergence of interests among EU Member States, rather then cohesion and coordination – Eunavfor Med’s mandate was more an emotional response to the need «to do something» in the face of the humanitarian tragedy that was taking place in the Central Mediterranean (while at the same time trying to curb the migrants’ inflow) than a manifestation of a serious and reasoned strategic thinking proper to a global Power.
7
C
HAPTER I
Opera tion Sophia’s ba ckground – National and international operations in the Central
Mediterranean since the outbreak of the Libyan crisis
Since the beginning of the XXI century the issue of irregular migration across the Mediterranean Sea to European shores has played a primary role in influencing and orienting the policy agenda of the Southern European Countries and of the European Union as a whole. The three main routes that have been used for irregular migration across the Mediterranean Sea are the western Mediterranean route, which reaches Spain from North West Africa, the central Mediterranean route from North Africa to Italy and Malta, and the eastern Mediterranean route from Turkey to Greece. Depending on the various phases of the evolution of the trans-Mediterranean migration process, and on the related international or bilateral agreements, one or the other has been preferred to the others.
Despite some minor interventions by the EU, at least until the outbreak of the Arab Spring, the issue was largely a national one. Accordingly, Italy and Spain tended to deal bilaterally with Libya and Morocco, respectively. The aim was to find a way to curb the influx of irregular migrants by paying to the North-African Countries large sums of money. With particular respect to the Italo-Libyan relation, since Berlusconi’s election as Prime Minister in 2001, the Italian Government started to negotiate some minor agreements on migration containment. As a matter of fact, the issue was becoming central in Italian internal politics and Gaddafi cleverly used it to push for obtaining major concessions, especially in terms of colonial reparations. After several years of back-and-forth and the succession of four Italian Governments3 an agreement was finally reached.
On August 30th, 2008, the Treaty of Friendship and Cooperation between Italy and Libya4 was finally signed by Berlusconi and Gaddafi in the veranda of the former Residence of the Italian Governor of Cyrenaica in Benghazi. Although the Treaty needed some time in order to be fully implemented – with respect to the migration issue – as early as two years after, its achievements
3 The second Berlusconi’s Government (XIV Legislature) lasted from June 11th, 2001, to April 23rd, 2005; the third
Berlusconi’s Government (XIV Legislature) lasted from April 23rd, 2005, to May 17th, 2006; the second Prodi’s
Government (XV Legislature) lasted from May 17th, 2006, to May 8th, 2008; the fourth Berlusconi’s Government
(XVI Legislature) lasted from May 8th, 2008, to November 16th, 2011.
4Trattato di Amicizia, Partenariato e Cooperazione tra la Repubblica Italiana e la Grande Giamahiria Araba Libica
8 were judged by the Italian Ambassador rather positively. As a matter of fact, it was recognised that «with a further supply of six patrol boats, Libya ha[d] begun to engage seriously in the control and interception activities on land and at sea. The results [had been] immediate and even exceptional, with the reduction between May 2009 and the first half of 2010 of more than 90% of the number of illegal immigrants from Libya5». Between May 2009 and February 2010, the Italian
Government delivered 6 “Bigliani” class boats from the Guardia di Finanza produced by Sarzana’s Intermarine shipyards. Minister Maroni, commenting on the implementation of the Treaty in January 2010, said he was very satisfied by declaring that the number of non-EU landings, between May 2009 and the end of the year, decreased from 31,281 to 3,195, compared to the same period of the previous year6. Moreover, the Treaty envisaged the realisation of a control
system on southern Libyan borders and its construction was entrusted to the Italian company Selex Sistemi Integrati. To finance the project, Italy and the European Union allocated EUR 300 million, in two equal parts. The Italian Ambassador noted: «In this sector, while it is still expected a real and substantial commitment from the European Union, a consolidated cooperation relationship has now been established at bilateral level, cemented by the repeated visits to Tripoli by Minister Maroni [and by the work of the Embassy]. Furthermore, the first legislation on illegal immigration, the fight against criminal organizations responsible for trafficking in human beings, as well as the trials [recently] launched for the first time Libyan against citizens involved in the trafficking of irregular migrants can be traced back to our cooperation with Libya». It should be noted that the opinion of several international bodies – such as the U.N. High Commission, the Council of Europe and, to a lesser extent, the EU – and external observers – such as the U.S. Embassy – sharply contrasted with the positive evaluations of Italian officials. The way in which the Italian-Libyan collaboration to combat clandestine immigration had evolved was severely criticised both domestically and internationally, exposing Italy to considerable embarrassment. In August 2009, after the top UNHCR official in Tripoli had voiced concern about some migrants having been forcibly and violently returned by Italian officials, leaving several migrants in need of urgent medical care, the American Ambassador noted: «Stemming the flow of migrants to Italy was a key component of the Italian-Libyan “Friendship Treaty” signed last August. In recent G-8 coordination meetings with the UN, Italian diplomats boasted that they had finally gotten Libya to
5 Cf. F.P. TRUPIANO, Un Ambasciatore nella Libia di Gheddafi, Greco & Greco Editori, Milan, 2016, p. 566.
6 Cf. G. IACOVINO, I rapporti bilaterali tra Italia e Libia alla luce del Trattato di Amicizia, Note No. 8, Osservatorio di
9 fulfill that obligation; this incident seems to indicate the [sic] Italy may be pushing Libya to do so at
the expense of both countries’ obligations regarding the protection of UN-protected asylum seekers7». The accusations coming from Europe and from the international community centred on the principle of “non refoulement”, the well-established rule under international law that refugees
and other persons cannot be sent back to States where they run the real risk of being subjected to torture or cruel, inhuman or degrading treatment8. As a matter of fact, on many occasions the U.N. High Commissioner for Refugees accused the Italian executive of violating the rights of migrants, expelling people who would be entitled to benefit from political refugee status9. The Italian
Government in turn retaliated by accusing the EU of lacking a realistic common policy on the issue of immigration10. Moreover, during a visit to Tripoli, Minister La Russa harshly attacked the U.N.
High Commission, which, according to his judgment «did not amount to a hill of beans11». The closure of the offices of the UNHCR in Libya in June 201012 further heightened this criticism and
raised even greater concerns towards Italian behaviour13. Disregarding all these considerations and criticism, the Italian Government continued to point out the great achievements of its policies and its success in drastically reducing the arrivals of irregular migrants on Italian shores.
The migration issue continued to hold an important role in the Italo-Libyan relation after the signature of the Treaty, to the extent that even Rome’s stance in the face of the 2011 turmoil and the subsequent intervention in Libya which ended with Gaddafi’s ouster and death critically depended on it. Libya represented the most significant transit point of the North African migration
7U.N. Official says Libya, Italy shirking human rights responsibilities, 09TRIPOLI637_a, U.S. Embassy in Libya,
Tripoli, 5.VIII.2009.
8 I.e. Article 33 of the Refugee Convention and Article 3 of the Convention against torture and other cruel, inhuman
or degrading treatment or punishment; 10 December 1984 (Vol. 1465 UNTS No. 24841). Non-refoulement is
inherent in the general terms of Article 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms; Rome, 11 August 1950 (Vol. 213 UNTS No. 2889) (ECtRM 7 July 1989, Case of Soering
v. United Kingdom, Judgment, Application No. 14038/88, para 88) [Source: F.J. MARCHAL and J.E.D. VOETELINK,
Legal Challenges Surrounding Maritime Operations in the Mediterranean Sea: Focus on Migrant Flows, in H.
MONSUUR, J.M. JANSEN, F.J. MARCHAL (Eds.), NL ARMS Netherlands Annual Review of Military Studies 2018.
Coastal Border Control: From Data and Tasks to Deployment and Law Enforcement, T.M.C. Asser press, The
Hague, 2018, pp. 27-28].
9 I.e., cf. U.N. Official says Libya, Italy, 09TRIPOLI637_a, cit.
10 G. BONVICINI, A. CARATI, A. COLOMBO, R. MATARAZZO and S., SILVESTRI, Italian Foreign Policy in 2010:
Continuity, Reform and Challenges 150 Years after National Unity, Working Paper No. 39, Istituto per gli Studi di
Politica Internazionale, Milan, July 2011, p. 8.
11 I. LA RUSSA, in M. FRANZINELLI and A. GIACONE, La Provincia e l’Impero, Giangiacomo Feltrinelli Editore, Milan,
2011, p. 175.
12 A. EDWARDS, UNHCR says ordered to close office in Libya, United Nations High Commission for Refugees,
Geneva, 8.VI.2010.
13 Cf. G. BONVICINI, A. CARATI, A. COLOMBO, R. MATARAZZO and S., SILVESTRI, Italian Foreign Policy in 2010, cit.,
10 route. This issue had enormous political importance in Italian internal politics. Since that, Rome had wanted to – whatever the cost – reach an agreement with Tripoli in order to prevent African migrants from seeking shelter in Italy. Consequently, it was definitely not in Italy’s national interest to alter such a positive and hard-won situation. Nevertheless, the events took their course and Italy was eventually “forced” to do its part.
Inevitably, the fall of Gaddafi’s regime, the civil war and the subsequent dissolution of the Libyan State nullified all the anterior work made by the Italian and the European authorities to curb the influx of migrants and to control the borders. In late 2013, the number of migrants crossing the Mediterranean surged due to increased chaos in Libya. This resulted in several major incidents because the migrants made the crossing in rickety, crowded vessels that could capsize, sink or catch fire. The worst accident of 2013 took place on October 3rd, when a boat sank off the Italian island of Lampedusa, resulting in the deaths of 366 migrants. A day later, 36 migrants lost their lives off Malta. Calls for action by the Pope14 and other opinion leaders urged Italian decision-makers to undertake more proactive search and rescue (hereinafter SAR) activities. As a result, Italy strengthened its maritime surveillance, patrol, and search and rescue capabilities. The operation, named Mare Nostrum, involved an amphibious vessel, two frigates, helicopters, a
marine brigade team, a coastal radar network and Automatic Identification System shore stations, a Maritime Patrol Aircraft (MPA), a Predator A+ unmanned aerial vehicle (UAV), an MM P180 aircraft, two Camcopter S-100 UAVs), and a forward logistic site (FLS). It was meant to scare off people smugglers and, as then Defence Minister Mario Mauro explained, «help those in trouble at sea15». In fact, Mare Nostrum should have contributed to the Italian effort aimed at reinforcing
controls on navigation and migration in the Mediterranean by deterring human smugglers and reducing migration flows. This should have made Italy better protected against the negative consequences of Libyan instability. However, the operation also served Italy’s security interests by hedging against the threats posed by the increased instability in Libya. Indeed, due to its geographical proximity to the country, Italy was concerned about the threat of Islamic radicalism. In substance, during approximately a year of operations, Mare Nostrum rescued almost 150,000
people while seizing nine smuggler mother-ships and 366 traffickers16.
14 Cf. Pope Francis urges Church to focus on helping poor, BBC News, London, 4.X.2013.
15 D. THUBURN, Italy deploys drones, warships after refugee tragedies, AFP News, Paris, 14.X.2013.
16 L. PERUZZI, Challenge at Sea: Italy Seeks Naval Power to Match Strategic Need, Jane’s Navy International Online,
11 However, Italy wanted its partners to share the burden of dealing with the migration problem. In late 2013 Italy’s Permanent Representation to the EU proposed to Rome that the Union should launch an anti-trafficking naval operation that would replace Mare Nostrum17. Having this proposal the support of Foreign Minister Bonino and Defence Minister Mauro, Italy tried to make the case for a EU joint operation during the 18-19 November meeting of the Foreign Affairs Council. Unfortunately, the partners responded unenthusiastically, as they subsequently did during the European Council on 19–20 December. Indeed, it was largely believed that such a proposal could blur the distinction between external and internal politics and suspected it was a smoke screen for Italy to fight the migrants rather than the traffickers. Most importantly, the situation in the Mediterranean was seen as a national issue for Italy to resolve. Thus, the idea of a CSDP operation was buried for the time being18.
Nevertheless, Italy continued to pressure the Union to get more involved in dealing with the migration problem. As a matter of fact, Mare Nostrum was becoming both expensive and
domestically unpopular. Moreover, Italy was struggling to run the operation by itself. Although it was initially estimated that its monthly running costs would be €1.5 million, they ended up climbing to €9.5 million19. Additionally, Mare Nostrum was increasingly unpopular at home
because it was seen as a pull factor that incentivised migrants to cross the Mediterranean. Due to these pressures, then Interior Minister Angelino Alfano explained that Mare Nostrum «[could not]
last forever» and that «Europe [had to] replace Italy» in the effort20. However, the problem of the
three biggest EU member States’ opposition still remained. London wanted Mare Nostrum to end
because of the idea of the operation acting as an unintended pull factor that encouraged migrants to cross the Mediterranean, thereby causing more deaths. Similarly, for Berlin the operation was nothing more than a bridge to Europe for migrants and it wanted the EU focusing more on border security than on SAR. Also Paris was inclined to a surveillance and border control operation, possibly closer to Europe’s shores than Mare Nostrum.
Despite – and as a result of – all these different and frequently conflicting concerns, in August, it was announced that Frontex Plus, an expanded operation based on the EU border agency’s
17 Interview made in February 2016, quoted in N. NOVÁKY, The road to Sophia: Explaining the EU’s naval operation
in the Mediterranean, European View 2018, Vol. 17(2), Wilfried Martens Centre for European Studies, Brussels,
2018, p. 200.
18 Cf. N. NOVÁKY, The road to Sophia, cit., pp. 200-201.
19Tidal wave, The Economist, London, 5.VII.2014.
12
Hermes and Aeneas operations21, would replace Mare Nostrum. Actually, Frontex Plus – later
renamed Triton – could by no means effectively replace Mare Nostrum as it had much more limited
funds at its disposal and lacked the competence to specifically aim at search and rescue22. While
Mare Nostrum had had a monthly budget of €9.5 million and a mandate that allowed it to conduct
search and rescue operations throughout the Mediterranean, Triton’s monthly budget was only
€2.9 million and its patrols were restricted to EU Member States’ territorial waters. As a result, the UN and several non-governmental organisations warned that replacing Mare Nostrum with Triton would increase the death toll in the Mediterranean23. Despite these warnings, Italy continued to portray Triton as Mare Nostrum’s replacement because it wanted to bring the
expensive and unpopular operation to an end. Thus, Mare Nostrum ended on October 31st and
Triton was launched on November 1st.
Operation Triton was the first Joint Operation to which the new Sea Border Regulation (EU
Regulation No. 656/2014)24 was applied. The latter was the outcome of a long process aimed at replacing the earlier Council Decision 2010/252/EU25, which had been entirely annulled by the
European Court of Justice in September 2012. During the legislative process that eventually led to the adoption of the said new Regulation of 2014 the Member States crucially accepted the EU’s involvement in SAR activities, but only as far as it remained limited to Frontex Joint Operations.
21 Frontex Operation Hermes was officially deployed on February 20th, 2011 following a request from Italian
Government. It assisted the Italian authorities in managing the inflow of migrants from North Africa, particularly arrivals from Tunisia, on the island of Lampedusa. In accordance with the host States’s request, sea borne assets in the joint operation come from Italy (Coast Guard and/or Guardia di Finanza); other Member States contributed with one
surveillance aircraft and guest officers on land to help with screening/debriefing. Joint Operation Aeneas was
coordinated by Frontex with Italy as host State. It was launched in 2011 and it mainly focused on migratory flows from
Egypt and Turkey (via Greece) to Italy. They were both replaced by Triton [Sources: Statement by Commissioner
Malmström announcing the launch of the Frontex operation “Hermes” in Italy as of 20 February 2011,
MEMO/11/98, European Commission, Brussels, 20.II.2011; Memo Frontex Joint Operation ‘Triton’ – Concerted
Efforts for managing migrator flows in the Central Mediterranean, European Commission, Brussels, 31.X.2014]
22 Cf. J. RIJPMA and M. VERMEULEN, EUROSUR: Saving lives or building borders?, European Security, Vol. 24(3),
Taylor & Francis Online, London, 2015, p. 467.
23 I.e. cf. L. DAVIES, UN warning over Mediterranean crossing patrol force from EU, The Guardian, London,
29.VIII.2014.
24 See Regulation (EU) No. 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing
rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, in Official Journal of the European Union, L 189/93, Luxembourg, 27.VI.2014.
25 See Council Decision of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the
sea external borders in the context of operational cooperation coordinated by Frontex at the external borders of the Member States of the EU, 2010/252/EU, in Official Journal of the European Union, L 111/20, Luxembourg,
13
Triton was initially conceived as a limited, temporary measure26. It acted in the sea south of Sicily and the Pelagic islands, as well as the coastal areas around Calabria. It co-ordinated the deployment of the assets of 26 Member States, which included two fixed wing surveillance aircraft, three patrol vessels, two coastal patrol vessels, two coastal boats and one helicopter. Five debriefing teams supported the Italian authorities in collecting intelligence on the people-smuggling networks operating in origin and transit countries, alongside two screening teams27. Despite its initial reduced ambitions, in the aftermath of two grave shipwrecks in April 2015, Frontex adopted a new operational plan. Triton was expanded with an increased budget, additional
assets and an extended operational area from 30 up to 138 nautical miles south of Lampedusa, almost reaching the extent that had been covered earlier by Mare Nostrum. In practice, however,
the Operation remained primarily a border control operation, while SAR activities continued to be incidental and a secondary task of this principal mission28.
In the meantime, as a result of the prolonged Syrian Civil War, the migratory pressure on Europe’s borders had significantly increased, becoming a continental problem. Greece initially bore the brunt of the problem. Hundreds of thousands reached the Greek Islands from Turkey across the Aegean. Moeover, in August 2015, Chancellor Angela Merkel made her bold «No limits» statement which permitted all migrants free access into Germany and triggered a further increase in movement up the corridor through the Balkans. The following months saw the official figures of migrants moving through Greece increase dramatically: 54,899 (July 2015); 107,543 (August 2015); 147,123 (September 2015); to its height of 211,663 (October 2015)29. At the height of
the crisis, in 2015–2016, over one million people crossed the sea border between Turkey and Greece arriving at one of the Greek islands, such as Lesbos and Chios30. The migrants reaching
the islands initially moved on to mainland Greece on their way to North-Western Europe, but this route became increasingly difficult as time passed. In the end, in the midst of fierce criticism, the
26 Cf. G. BEVILACQUA, Exploring the Ambiguity of Operation Sophia Between Military and Search and Rescue
Activities, in G. ANDREONE (Ed.), The Future of the Law of the Sea, Springer, Berlin, 2017, p. 168.
27 Cf. Operation Sophia, the EU’s naval mission in the Mediterranean: an impossible challenge, HL Paper 144, House
of Lords of the United Kingdom of Great Britain and Northern Ireland, London, 13.V.2016, p. 23.
28 Cf. G. BEVILACQUA, Exploring the Ambiguity of Operation Sophia, cit., p. 169.
29 Cf. P. ROBERTS, The Militarisation of Migration: From Triton to Sofia: Assessing the Credibility of the EU’s Naval
Interventions Against Migrant Smuggling in the Mediterranean, in T. REITANO, L. BIRD RUIZ-BENITEZ DE LUGO and S,
JESPERSON (Eds.), Militarised Responses to Transnational Organised Crime, Palgrave Macmillan, Cham, 2018, p.
223.
14 European Union concluded a controversial deal31 with Turkey (March 2016), causing the number
of migrants attempting the Eastern Mediterranean route to drastically fall. The EU also empowered Frontex «to ensure European integrated border management at the external borders with a view to managing the crossing of the external borders efficiently32». Specifically, Frontex implemented Operation Poseidon «at the external sea borders of the Eastern Mediterranean
region in order to control irregular migration flows towards the territory of the Member States of the EU and to tackle cross-border crime33».
31 On March 18th, 2016, EU Heads of State or Government and Turkey agreed on the EU-Turkey Statement to end
irregular migration flows from Turkey to the EU, ensure improved reception conditions for refugees in Turkey and open up organised, safe and legal channels to Europe for Syrian refugees. Three years later, irregular arrivals remain 97% lower than the period before the Statement became operational, while the number of lives lost at sea has decreased substantially. The EU has supported Turkey in its efforts to host refugees with the €6 billion Facility for
Refugees in Turkey [Source: EU-Turkey Statement. Three years on, European Commission, Brussels, 2019, p. 1].
32Regulation (EU) No. 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the
European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC, in Official Journal of the European Union, L
251/1, Luxembourg, 16.IX.2016.
33 J.P. KALKMAN, M.T.I.B. BOLLEN and E. DE WAARD, Helping Migrants While Protecting Against Migration: The
Border Security Team in Crisis, in H. MONSUUR, J.M. JANSEN, F.J. MARCHAL (Eds.), NL ARMS Netherlands Annual
15
C
HAPTER II
Genesis of a n opera tion
1. Operation Sophia in the frame of the CSDP
As mentioned above, in the first half of 2015 it started to become increasingly evident that the measures adopted both at the national and at the Union level were definitely not enough to effectively deal with the occurring migration crisis. The scale of the flows reached previously unseen levels in 2014 and 2015, as did the number of deaths. The year 2014 marked a particularly lethal year with over 3500 fatalities, but by early spring of 2015, it was clear that this number was going to be surpassed within a few months34. While the flow on the Western
Mediterranean Route remained rather low (less than 1% of the total), the number of migrants using the Eastern Route had surpassed all other routes, with 771,237 migrants crossing from Turkey mainly to Greece. This route had seen a 1664% increase in the number of migrants from the previous year, with the majority of migrants being of Syrian nationality and representing the 83% of the entire flow. The Central Route – though only representing the 16% of the total flow (154,725 people) – had the sad record of the highest death toll: 2% of those crossing, as opposed 0.1% on the Eastern Mediterranean Route. The vast majority – 91% – of the ones who crossed the sea using the Central Route launched from Libya (in particular from the Tripolitania area), while only 8% arrived from Egypt35.
Frontex joint operations mostly focused on border control. As a result, hundreds of unauthorized migrants, while attempting to cross the European external sea border were forced to return to the State from which they departed or were presumed to have departed. The increasing fluxes of migrants and asylums seekers, together with the increasing number of deadly shipwrecks showed that the European migration control practice was being ineffective. According to the International Organization for Migration, between the years 2000 and 2015 close to 25,000 migrants had
34 W. SPINDLER, UNHCR calls for urgent action as hundreds feared lost in the Mediterranean boat sinking, UNHCR,
Geneva, 20.VI.2015.
35 Figures for the period January-December 2015 [Source: EUNAVFOR MED - Operation SOPHIA Six Monthly
16 perished in the Mediterranean, making it the world’s deadliest border36. The turning point
occurred in the night of April 18th, 2015, when a ship carrying over 800 migrants capsized off the coast of Libya. While this was not the first of such incidents, it marked the largest loss of life in a single incident in the Mediterranean. It was the worst maritime disaster in the Mediterranean since the Second World War. As such, it provoked generalised public outrage and made necessary a more decisive European common answer. The EU’s answer was twofold. The first move was the adoption of the already mentioned second edition of the Triton Operation. The second one was
the deployment of a novel and previously unseen undertaking at sea. Indeed, for the first time, migration concerns started to be dealt with in the framework of the EU’s Common Security and Defence Policy (CSDP).
CSDP is the operational arm of the EU’s intergovernmental area of Common Foreign and Security Policy (CFSP). Action is, thus, subject to the unanimous approval of all Member States. Accordingly, due to its association with national sovereignty, as well as the differing capabilities and political willingness of individual states to participate in joint military action, CSDP has always been a particularly difficult area in which to develop EU inter-state cooperation37. Prior to the launch of Operation Sophia in 2015, the possibility of the CSDP used as an additional instrument
for the EU to tackle the causes of irregular migration and to deal with human trafficking was not particularly popular, although – as outlined by Niklas Nováky38 – some indications could be found
in the Union’s normative documents. The 2003 document A Secure Europe in a Better World: European Security Strategy39 identified five key threats to the EU’s security, the last of which was organised crime. It explained that organised crime often had an impact that went well beyond the regions directly involved because cross-border trafficking in, among others, women and irregular migrants, «account[ed] for a large part of the activities of criminal gangs40». The 2008 Report on the Implementation of the European Security Strategy41 elevated the status of organised crime –
including trafficking in human beings – by placing it in the same category as terrorism and listing it
36Fatal Journeys. Tracking Lives Lost during Migration, International Organization for Migration, Geneva, 2014, p.
20.
37 Cf. N. NUGENT, The Government and Politics of the European Union, Palgrave Macmillan, London, 2010, pp.
380-384.
38 Cf. N. NOVÁKY, The road to Sophia, cit., pp. 199-200.
39 See A Secure Europe in a Better World: European Security Strategy, 15895/03, PESC 787, Council of the
European Union, Brussels, 8.XII.2003.
40Ibidem, p. 6.
41Report on the implementation of the European Security Strategy. Providing security in a changing world, S407/08,
17 as the second key threat to the EU’s security. With regard to irregular migration, the report saw it mainly as a negative spill-over effect of State failure. However, neither document specified how the EU would actually deal with threats linked to irregular migration. The far-reaching consequences of irregular migration were also highlighted in the EU’s internal security documents. According to the 2010 Internal Security Strategy, organised crime was the second key threat to the Union’s
internal security, while human trafficking was one of the main crime-related threats facing the EU42. Furthermore, the 2005 Communication A Strategy on the External Dimension of the Area of Freedom, Security and Justice emphasised that the growing sophistication of organised crime,
including human trafficking, «[could] only be countered through improved law enforcement and judicial cooperation, both within the EU and externally, and through support for capacity-building in third countries43». With respect to «illegal immigration», it was stated that – as it was «set to continue» - the EU had to «address not only issues such as admission and reception, but also the root causes of immigration and its impact on countries of origin and transit44». By taking into consideration the possibility of addressing organised crime through capacity building in third countries it was showed an increased European willingness to address the causes of irregular migration beyond the Union’s borders. Although not mentioned explicitly, it is clear that such capacity-building efforts also included civilian CSDP missions. Irregular migration to the EU has also an important maritime dimension. As the sea constitutes the EU’s largest external border, accounting for a coastline of over 70,000 km, maritime border protection is fundamental to prevent external security threats from entering the Union. Whereas the deployment of naval forces has traditionally been associated with the projection of military power and presence abroad, the rise of transnational threats, including cross-border crime and terrorism has resulted in the growing participation of navies in policing operations45. Therefore, the Union developed several
documents and strategies aimed at tackling also this specific aspect. The 2014 Maritime Security Strategy listed cross-border and organised crime as a key threat to the EU’s maritime security46. It explained that the Union could respond to maritime threats through a variety of instruments,
42 Cf. Internal security strategy for the European Union: Towards a European security model, Council of the
European Union, Brussels, 2010, p. 7.
43A strategy on the external dimension of the area of freedom, security and justice, COM (2005) 491 final,
Commission of the European Communities, Brussels, 12.X.2005, p. 4.
44Ibidem.
45 Cf. B. GERMOND, The Maritime Dimension of European Security: Seapower and the European Union, Palgrave
Macmillan, London, 2015, pp. 78-92.
46 Cf. European Union Maritime Security Strategy, 11205/14, Council of the European Union, Brussels,
18 including the CSDP47. The 2012 EU Concept for Maritime Security Operations under CSDP
exposed the specific ways in which the CSDP could deal with maritime threats. Substantially, it explained that the member States’ maritime forces engaged in CSDP operations should be able to carry out five core and three additional tasks, several of which were suitable for dealing with irregular migration and the related problems48, such as using naval forces to keep the migration
routes under surveillance.
The EU’s ability to agree on a CSDP operation within a relatively short time span was unprecedented and not only showed Brussels’ interest in becoming a strategically autonomous security actor in its direct neighbourhood (indeed, the EU did not simply react to a UNSC resolution or wait for Tripoli’s invitation to establish Sophia), but it was also a demonstration of
the increasing concerns and internal threat perceptions of the members States49. Traditionally, issues related to irregular immigration, human trafficking and external borders management were tackled through the EU’s Area of Freedom, Security and Justice institutions and procedures. The Council’s decision to add a CSDP mission was therefore signalling a change in the Union’s approach. Arguably, such a change resulted from the composition of the different European Countries’ instances and positions – notably Italy, France and Germany.
As already underlined, Italy had always had strong geostrategic interests in the Mediterranean Sea basin, for geographical and historical reasons. Moreover, considering its geographic position, Italy continued to be the most severely affected EU Member State by the maritime refugee crisis in the Central Mediterranean Sea, thereby launching Mare Nostrum and pressuring the other European
Countries.
Similarly to Italy, France had its geopolitical interests in the Mediterranean Sea basin, due to its geographical proximity as well as its ties to its former colonies in Northern and Western Africa. Despite being less affected by migration flows at its external sea border, France’s internal security situation had been indirectly affected by the large influx of irregular immigrants to Europe. Due to the insecurity that followed the Islamist terrorist attacks, the French Government had become particularly sensitive to the prospects of illegal immigration. Additionally, the increasing feeling of discontent among many French citizens regarding the illegal immigration issue had led to the
47 Cf. European Union Maritime Security Strategy, cit., p. 9.
48EU Concept for Maritime Security Operations under CSDP, EEAS 00572/12, European External Action Service,
Brussels, 10.IV.2012, pp. 11-12.
49 Cf. M. ESTRADA-CAÑAMARES, Operation Sophia Before and After UN Security Council Resolution No 2240
19 rising popularity of the National Front (the French far-right anti-migrant party). Accordingly, France perceived that the «déstabilisation du bassin méditerranéen contribue à augmenter la menace contre nos intérêts et à la rapprocher de l’Europe et de la France50». Acknowledging that
human trafficking activities at the North African coasts fuelled illegal immigration to Europe, the French Government underlined the necessity of a common European response. Additionally, Paris stressed its willingness to act within the common framework established under the EU’s Maritime Security Strategy, thereby, promoting a strategically autonomous EU maritime security response on the basis of shared capabilities among EU Member States and strengthened cooperation and coordination between the EU and NATO51.
Despite not being located at the Mediterranean Sea, Germany’s traditional geostrategic interests assumed that maritime security in the region was essential to guarantee both Europe’s and Germany’s tranquillity and prosperity. Therefore, Germany had done its part as a promoter of peace, stability, human rights and democracy in the region. During the refugee crisis, Germany had become the number one destination for migrants and refugees in Europe, accounting for 202.815 applications for asylum in 2014 and 476.649 in 201552. Despite the positive economic and demographic benefits, the massive flow of refugees had also posed strains on the Country, both in logistic and popular discontent terms. As a result, Germany had emphasized the role of the protection of the EU’s external borders as an essential tool to overcome the crisis internally. Hence, Germany started to advocate stronger cooperation and coordination.
Overall, besides their individual strategic interests and concerns, Germany, France and Italy developed a common interest in enhancing European maritime security and defence cooperation. Having Operation Triton demonstrated that a policing force in national territorial waters was not
enough, a more comprehensive and wider security approach turned out to be necessary. Thus, considering that the three “leading” Member States were not the only countries affected by Europe’s worsening security situation, the EU was able to mobilize itself entirely to set out a CSDP approach, as well as to provide the respective capabilities for action53.
50Stratégie nationale de sûreté des espaces maritimes, Government of the French Republic, Paris, 22.X.2015, p. 6.
51 Cf. ibidem, pp. 50-51.
52 It is noteworthy that, whereas these numbers merely reflect the officially registered refugees, overall immigration –
illegal and legal – has resulted in a total of more than three million people entering Germany in 2014 and 2015
[Source: K. FRANKENTHAL, The EU as a Maritime Security Actor, cit., p. 89].
20 In short, faced with the blatant inconsistence and inadequacy of its previous policies, after the April 18th disaster, the European Union eventually opted for resorting to its most resolute and daring measures. Two days after the tragedy, the Foreign Affairs and Home Affairs Councils held a joint session whose conclusions confirmed «a strong commitment to act so as to prevent tragedies like the recent events in the Mediterranean». It was said that work would be taken forward along three different strands: a) the fight against organised crime networks and human traffickers; b) more effective efforts to save lives at sea; c) a fairer sharing of responsibilities regarding resettlement and relocation projects. With regard to the first strand, the Council discussed several options «including stepping up work on the routes of travel used by migrants and enhanced police cooperation on counter-measures against smugglers54». At the meeting, Dimitris Avramopoulos –
the European Commissioner for Migration, Home Affairs and Citizenship – presented a 10-point plan on the immediate actions to be taken in response to the migration crisis. The Ministers gave the plan their «full backing55». One of the points included in the plan referred to a «systematic effort to capture and destroy vessels used by the smugglers56». Additionally, the document
contained an explicit reference to the positive experience of Operation Atalanta57, whose example
was suggested to be taken as an inspiration for the forthcoming operation. The plan also contained a point concerning a naval operation. It was only intended as something to be possibly taken into consideration but it quickly became a major focal point, and High Representative Mogherini pushed hard for it. The joint Council meeting was followed by an extraordinary European Council on April 23rd. Despite the fact that initially not all the members of the Council responded enthusiastically about the naval operation, it would have been difficult for anyone to oppose it openly due to the extreme seriousness of the situation in the Mediterranean and the public outcry. The European Council argued that the situation in the Mediterranean was a «tragedy» and
54Outcome of the Council Meeting. 3385th Council meeting. Foreign Affairs and Home Affairs, 8146/15, Council of
the European Union, 20.IV.2015, p. 3.
55 Press release Joint Foreign and Home Affairs Council: Ten point action plan on migration, IP/15/4813, European
Commission, Luxembourg, 20.IV.2015.
56Ibidem.
57 Being the European Union concerned with the effect of Somali-based piracy and armed robbery at sea off the Horn
of Africa and in the Western Indian Ocean, as part of its Integrated Approach to Somalia, it launched the European
Union Naval Force Atalanta (Eunavfor) in December 2008 within the framework of the European Common Security
and Defence Policy and in accordance with relevant UN Security Council Resolutions and International Law. Forces
of Operation Atalanta deter, prevent and repress acts of piracy and armed robbery, as well as they protect vessels of
the World Food Programme delivering aid to displaced persons in Somalia. On July 30th, 2018, the Council of the EU
extended the Mandate of Operation Atalanta until December 2020 [For more information, see: European Union
21 promised that the EU would «mobilise all efforts at its disposal to prevent further loss of life at sea» as well as to tackle the root causes of the «human emergency». The immediate priority, however, was «to prevent more people from dying». Accordingly, it was decided to strengthen the EU’s presence at sea, to fight the traffickers, to prevent irregular migration flows and to reinforce internal solidarity and responsibility. As far as the human traffickers were concerned, the European Council’s intention was to «disrupt trafficking networks, bring the perpetrators to justice and seize their assets» but also to «undertake systematic efforts to identify, capture and destroy vessels before they [were] used by traffickers». Therefore, the Heads of States invited the High Representative to «immediately begin preparation for a possible CSDP operation [to undertake] systematic efforts to identify, capture and destroy vessels before they were used by traffickers58». The idea was to discuss the matter at the May 18th meeting of the Foreign Affairs Council. As a matter of fact, having regard to Art. 42 of the EU Treaty and to the proposal from Ms Mogherini, on that day the Council adopted Decision No. 2015/778 (Council Decision) approving the Crisis Management Concept for a Common Security and Defence Policy operation. Its purpose was to «conduct a military crisis management operation contributing to the disruption of the business model of human smuggling and trafficking networks in the Southern Central Mediterranean (EUNAVFOR MED), achieved by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers, in accordance with applicable international law, including UNCLOS59 and any UN
Security Council Resolution60».
2. Structure and contents of the mandate
As with all EU civilian missions and military operations, decisions on Eunavfor Med fell under the
special CSDP intergovernmental procedures, whereby – as has already been said – Member States decide unanimously on proposals from the Member States or the High Representative for Foreign Affairs and Security Policy. The Political and Security Committee (PSC), composed of national
58 Press Release Special meeting of the European Council, 23 April 2015 – Statement, 204/15, European Council,
Brussels, 23.IV.2015.
59United Nations Convention on the Law of the Sea (UNCLOS), United Nations, Montego Bay, 10.XII.1982. 60Council Decision (CFSP) 2015/778 of May 18, 2015 on a European Union military operation in the Southern
Central Mediterranean (EUNAVFOR MED), in Official Journal of the European Union, L 122/31, Luxembourg,
22 Ambassadors and chaired by the EEAS, had the political control and ensures the strategic direction of crisis management operations, based on the Member States’ decisions. The Council Decision represented the legal instrument that set out the purpose of the mission, its mandate, and other practical information on how Eunavfor Med had to be handled. The Member States’ military
contribution to EU operation was voluntary, and they covered the costs themselves. Military operations were however conducted under common EU command. There was thus also a joint budget for Eunavfor Med, which was shared by the EU members, foremost covering the running
costs of the Operational Headquarter in Rome and the Force Headquarters in theatre. Since Italy had offered to serve as the operation’s framework nation, Italian Rear Admiral (UH) Enrico Credendino61 was chosen as the Operation Commander, and the Joint Operations Headquarters
in Rome were selected as the location of the Operation Headquarters.
The Crisis Management Concept, which describes how the CSDP can address particular problems, had been developed quickly. It was based on the Political Framework for Crisis Approach, which had been revised on April 10th. This framework had identified a maritime
surveillance operation as one of five options for possible CSDP action in Libya. The Concept explained that the situation in the Mediterranean «ha[d] extremely serious implications for the EU and require[d] urgent action». It laid stress, in particular, on the «security and stability implications» of the situation and emphasised «the need to prevent links between criminal networks and terrorist organisations». The Crisis Management Concept stated that the operation needed «an executive mandate and could be military and joint (e.g. naval and air) in nature». The operation was designed to unfold in three (arguably, four) successive phases, with the goal of «disrupt[ing] the business model of the smugglers» by «undertaking systematic efforts to identify, seize/capture and destroy vessels and assets62» before they could be used. The Political and
Security Committee had the power to decide on the transition between the different phases, subject to the assessment of the Council.
By design, Eunavfor Med was to progress from basic tasks to more complex operations. Phase 1’s
goal was to develop «a comprehensive understanding of smuggling activity and methods». Phase 2 consisted of two different parts (2A and 2B). The first entailed using the authority sanctioned by
61 Admiral Credendino was born on January 21st, 1963, in Turin. He was promoted to Rear Admiral (LH) on July 1st,
2011 and to Rear Admiral (UH) on July 1st, 2014. On January 1st, 2019, he was promoted to Vice Admiral [Source:
Operation Commander. Vice Admiral Enrico Credendino, EUNAVFOR MED Operation SOPHIA, Rome, 2019].
23 international law for the «board[ing], search, seizure and diversion» of vessels suspected of being used for human smuggling or trafficking, on the high seas (Phase 2A). The Operation should, moreover, conduct the activities of Phase 2A also in the territorial and internal waters of the coastal State, subject to the conditions set out in any applicable United Nations Security Council (UNSC) resolution or in the consent of the coastal State (Phase 2B). Finally, in Phase 3, the mission would have «take[n] all necessary measures against a vessel and related assets, including through disposing of them or rendering them inoperable, which [were] suspected of being used for human smuggling or trafficking, in the territory of that State, under the conditions set out in that Resolution or consent». This was, again, subject to the consent of the State concerned or any applicable UNSC resolution. The reasons for organising the Operation in phases were threefold: first, conducting it would be easier if it was divided into clearly defined phases; second, the EU needed to gather intelligence on the smugglers and their networks before it could start acting against them; and third, the Union did not yet have the necessary legal mandate that would allow it to conduct all Phase 2 and 3 activities from the very beginning. Eunavfor Med was mandated to be
deployed for one year after reaching full operational capability. The mandate was due for renewal in summer 2016. The common costs of the mission, financed by the Member States, amounted to €11.82 million for the one-year mandate.
In September 2015 the Operation was renamed after Sophia, a Somali baby born on August 24th
on board a German frigate, operating in the Central Mediterranean Sea as part of Eunavfor Med
Task Force. Rescued together with other 453 migrants and disembarked on the evening of the same day in the harbour of Taranto, Sophia was named after the ship dedicated to the Prussian Princess Louise Sophie of Schleswig-Holstein-Sonderburg-Augustenburg (1866 – 1952), which had saved her and her mother. On September 24th, Ms Mogherini, speaking in Rome at Eunavfor Med Operational Headquarters, declared: «I will suggest to Member States that we change the
name of our Operation: instead of calling it EUNAVFOR MED, I suggest we use the name: Sophia. To honour the lives of the people we are saving, the lives of people we want to protect, and to pass the message to the world that fighting the smugglers and the criminal networks is a way of protecting human life»63.
63 Cf. European Union Naval Force – Mediterranean. Operation Sophia, European External Action Service, Brussels,
24 3. The Operation in the light of UN Resolution 2240
On May 11th, 2015, the High Representative of the Union for Foreign Affairs and Security Policy
officially informed the Security Council of the need for the EU to work with its support in order to manage the Mediterranean migration crisis. On October 9th, 2015, UN Security Council adopted
Resolution 2240 (2015). All the Members of the Council voted in favour of the document, with the sole exception of Venezuela64. Indeed, Resolution n. 2240/2015 was adopted with the approval of both Moscow and Peking, the two most reluctant Security Council members when the authorisation to use force is concerned. The Russian representative, immediately after the vote, explained that his Country’s position was a direct consequence of the need to do something to save lives in the Mediterranean. However, he also stressed that the real solution to the crisis was the tackling of the causes of migration, through collaboration with the Countries of origin and transit flows, as well as with all international partners in order to create effective response mechanisms. The Russian delegate finally asked the Countries that were taking charge of the implementation of the resolution (namely, the Members of the Union) to guarantee the safety of migrants and to act in compliance with international law, and in particular with the UNCLOS, since «[a]ny expansive interpretation of the text [would have been] unacceptable, as it already provided for clear requirements. Measures sanctioned by the text should [have been] in line with specific situations, and only as part of addressing those entities involved in illegal smuggling and human trafficking65». It is noteworthy that these rather sceptical statements were consistent with the positions taken by Russia in recent years (from NATO’s intervention in Libya in 2011 onwards), generally opposed to interventions under Chapter VII and to the authorisation to use the force on behalf of the Security Council to the benefit of Western States.
64 While motivating his decision, the Venezuelan delegate observed: «This serious problem is being addressed in a
completely wrongheaded way and that, far from resolving the tragedy that is being experienced by these human beings, it will instead deepen the problem by addressing it from a military perspective and not from a preventive and multidimensional perspective. Creating the possibility of applying Chapter VII of the Charter from which today’s resolution is derived — that is, the use of military force to deal with the humanitarian situation of migrants — is a serious mistake; in so doing, the Security Council sets a dangerous precedent by turning its back on the General Assembly, usurping the Assembly’s authority and addressing issues that fall within its competence» [Source: R.D. RAMÍREZ CARREÑO, in Meeting record 7531st meeting. Friday, 9 October 2015, 10 a.m. Maintenance of international
peace and security, S/PV./7531, United Nations Security Council, New York, 9.X.2015, p. 5].
65 E.T. ZAGAYNOV, in Adopting Resolution 2240 (2015), Security Council Authorizes Member States to Intercept
Vessels off Libyan Coast Suspected of Migrant Smuggling, SC/12072, United Nations Security Council, New York,
25 Also the Chinese Government welcomed the resolution, in the hope that it could have helped to resolve the situation in the Mediterranean. Peking’s delegate, stressed that «States would implement the text in a comprehensive and accurate manner, respecting the independence, sovereignty and territorial integrity of the countries concerned, and prioritizing the safeguarding of life66».
The Resolution was adopted pursuant to Chapter VII of the UN Chart and concerned the use of force in the fight against smuggling and human traffic in the Mediterranean Sea. In the preamble, after having expressed its concern for the proliferation of tragic events in the Mediterranean, the Council reaffirmed the necessity «to promote and protect effectively the human rights and fundamental freedoms of all migrants, regardless of their migration status, especially those of women and children, and to address international migration through international, regional or bilateral cooperation and dialogue67». To deal with this situation, in the last recital it was argued
that action would be taken pursuant to Chapter VII. Nevertheless it is noteworthy that, unlike the resolutions concerning Somalia in the context of piracy as well as other more recent resolutions concerning Libya68, Resolution 2240 (2015) made no reference to the situation in Libya as representing a threat to international peace and security. Instead, it was the «recent proliferation of, and endangerment of lives by human trafficking and migrant smuggling in the Mediterranean Sea off the coast of Libya» that was regarded as the situation that needed to be addressed through the Security Council’s action under Chapter VII. Additionally, the Council underlined its «concern for the repercussions of this phenomenon on the stability of Libya and of the Mediterranean region». In fact, it was recognised that the phenomenon had negative repercussions on the stability of the region, but it was not expressly qualified as a threat to the peace, nor was it presented as a consequence of the instable Libyan situation. Some authors have observed that it is the repression of these crimes and its impact on human lives that seemed to be used as justification for the Security Council’s powers69. Nevertheless, it should be noted that –
having the Resolution been adopted under Chapter VII – this very fact means that the Security Council had considered the situation a threat or a violation of the peace. Arguably, the absence of
66 J. LIU, in Adopting Resolution 2240 (2015), cit.
67Resolution 2240 (2015), S/RES/2240 (2015), United Nations Security Council, New York, 9.X.2015, p. 2.
68 See Resolution 2213 (2015), S/RES/2213 (2015), United Nations Security Council, New York, 27.III.2015 and
Resolution 2238 (2015), S/RES/2238 (2015), United Nations Security Council, New York, 10.IX.2015.
69 See M. BO, Fighting Transnational Crimes at Sea under UNSC’s Mandate: Piracy, Human Trafficking and Migrant
