The Council of the European Union (Council constituted by the Heads of State and / or Government), in May of 2015, established the operation of the European Union's Mediterranean naval force or EUNAVFOR-MED II, which has been called SOPHIA, from the name of a Somali girl born on a warship, flying the German flag, who was on a rescue mission near the shores of Libya, 24 2015 August.
It is part of the comprehensive EU framework for migration and is the answer in the purely military action plan of the common security and defense policy (CSDP) against trafficking and trafficking in human beings, in the whole of the Mediterranean sea. This operation was thus designed to address the problem of trafficking in migrants and the trafficking of individuals organized in Libya. Remember that the operation SOPHIA, in addition, represents the second operation of the sea of the CSDP, after the operation ATALANTA, which consists of the European Union's military action against piracy off the coast of Somalia.
According to the decision of the EU Council, about the EU military operation in the South Central Mediterranean area, this operation aims to identify, stop and disable vessels and vehicles used or suspected of being used by smugglers or come on traffickers. It will take place in three successive phases - with probability also a fourth - and the Political and Security Committee has the power to decide on when to make the transition between the various stages of the operation, subject to evaluation by the European Council. In fact, the 6 article, 1 paragraph, of the 2015 / 778 decision, states that "The PSC exercises, under the responsibility of the Council and the HR, the political control and strategic direction of EUNAVFOR MED. The Council hereby authorizes the PSC to take the relevant decisions pursuant to Article 38 TEU. This authorization includes the skills necessary to modify planning documents, including the operational plan, the chain of command and the rules of engagement. It also includes the necessary skills to take decisions on the appointment of the EU Operation Commander and the EU Force Commander. Decision-making powers concerning the objectives and the conclusion of the EU military operation remain with the Council. Without prejudice to the 2 article 3 of this decision, the PSC has the power to decide when to make the transition between the various stages of the operation ".
Remember that the operation is structured in successive phases, where, in the first stage, that started the 22 Jun of the 2015, the operation SOPHIA supports the identification and monitoring of migration networks by gathering information and patrolling on the high seas.
La second stage, very important, it is divided into two different parts. The operation SOPHIA o EUNAVFOR-MED II, which we could define as phase II of type A, will proceed to detention, inspections, seizures and hijackings of vessels on which there is a strong suspicion that they are used for trafficking and trafficking in international waters. Furthermore, this operation is implemented, according to UN Security Council resolutions or through the assent of the coastal State concerned, in its territorial sea or inland waters - this could be defined phase II of type B. Finally, in the phase III, the operation SOPHIA will adopt any necessary means in respect of a vessel, through the consent of the coastal State or on the basis of any resolutions adopted by the United Nations Security Council, suspected of being used in order to traffic or apply the trafficking in persons, including its elimination or making sure that this vessel is rendered unusable.
Starting from 22 June 2015, when the EU Council adopted the decision about the launch of the European Union military operation in the central-southern Mediterranean, until the October 7 of the same year, this operation completed its first phase concerning the collection of relevant information - necessary forintelligence - and maritime patrol on the high seas. Based on the decision taken by the Political and Security Committee, the Operation SOPHIA has been standardized in the context of phase II of type A, the latter launched in March of 2016. Since its inception, the Operation SOPHIA it has helped more than eight thousand migrants, destroyed over sixty boats and contributed to the arrest of nearly fifty traffickers and people traffickers. However, the EU wants to be allowed to do a lot, aware that, to oppose the smugglers and traffickers of human beingsclearly it is necessary to do so in the Libyan territorial sea or from its territory. This is the reason why we tried to obtain the assent of the Libyan National Government of Understanding and / or a UN Security Council resolution authorizing the activities determined in the phase II of type B and the third of the Operation SOPHIA. The only result of these negotiations is therefore the resolution n.2240 of the 9 October of the 2015, adopted by the United Nations Security Council, which does not allow the passage from phase II of type Aalthough it only provides operations in international waters, in the sense that it has been surrounded by such and such limitations and legal safeguards as to give the resolution a complex and complex meaning (...) and that the Security Council limits itself to requiring Member States to assist Libya, at the request of the latter, in the prevention and repression of the phenomenon in the territory and in the Libyan territorial sea. In the resolution de quo it is being negotiated, the Security Council authorizes the Member States - acting either individually or in the context of international organizations, including regional ones -, in derogation of international law, to inspect vessels suspected of being used off the coast of Libya for traffic and human trafficking. In the event of positive confirmation, the Security Council also authorizes to place such vessels and everything on board on-board, and to use every necessary means to counter trafficking and smuggling of migrants. Furthermore, this Security Council resolution was implemented through the Political and Security Committee decision on 20 January 2016.
The EU military operation - as stated in the 1 article of the CFSP Decision 2016 / 118 -, in the central-southern area of the Mediterranean Sea, was authorized to start from detentions, inspections, seizures and hijackings on the high seas or waters international vessels suspected of being used for trafficking and trafficking in human beings, in accordance with the conditions determined by the Security Council resolution, as already mentioned in the previous paragraph, in accordance with the 2015 / 778 / CFSP decision, for the time determined in this resolution and so on.
The activities authorized in the provision coincide with those provided for in the phase II of type A operation SOPHIA o EUNAVFOR-MED II, which was conducted starting in early October of the 2015. For the first time, it is possible to underline that the entire legal structure of the operation SOPHIA recognizes that it it goes to hit the traffic and the trafficking of people who leave the Libyan coast. Even if only in a recall, following the agreement by the Political and Security Committee, EU Member States will be able to operate on the high seas and off the Libyan coast. According to the Political and Security Committee, the Security Council resolution n.2240 / 2015 strengthens the authority to take measures against the smuggling of migrants and trafficking in human beings from the territory of Libya and always off the coast of Libya. Another further consequence of the resolution lies in the fact that the operation SOPHIA has been authorized with the express purpose of interdict not only boats not flying any flag, but also Libyan ones. Always under the UN resolution, the operation EUNAVFOR-MED II o SOPHIA requires its own authorization or the consent of the State in question in order to undertake the activities envisaged in the phase II of type A, if prohibited boats are not without nationality. Although not reported in the Sachet of the Operation SOPHIA, the distinction between non-flag and flag ships is included in the EU Council decision 2015 / 778, according to which, on the high seas, in accordance with domestic law and international law, States may block suspected vessels of migrants, in the presence of the authorization of the flag State to stop and inspect the boat or if the boat is without nationality, and take appropriate measures against vessels, persons and cargo.
The number of immigrants and traffickers on the Libyan route is unfortunately destined to increase following the closure of the Balkan route, which took place thanks to the EU-Turkey agreement. Apart from the national measures, the containment of illegal immigration is carried out by the EU mission EUNAVFOR MED, under Italian command. The mission is not a operation of search and rescue, as Mare Nostrum, but is aimed at combating the illegal trafficking of migrants, through - as has been written before - the identification, capture and destruction of vessels, after having obviously rescued the people on board. In terms of international law, the mission does not involve particular problems. The detention of the ship involved in the traffic takes place with the consent of the flag state or upon authorization of the relevant resolution adopted by the Security Council. However, if the ship is without nationality, as in most cases, the rules of international law of the sea authorize its capture.
To start the phase II of type B , phase III of the transaction, the EU has negotiated with its counterparts, id est the Member States, whether permanent or non-permanent, that make up the United Nations Security Council and the United Nations Security Council Government of National Understanding Libyan (GNA). At the United Nations Organization, during the debate for the adoption of the 2240 / 2015 resolution, there was the opposition of both the Russian Federation and the People's Republic of China. Russia, in fact, supports Egypt, for the reason that it has set itself an objective of repression of Islamism and sees with suspicion also moderate solutions like that of Tunisia and Fayez al-Sarraj. In contrast to Russia, the People's Republic of China considers Islamism a subversive force to circumscribe, but would agree with a partition of Libya. Both States could place limits within the UN Security Council on the implementation of the UN-led line, only if it were to touch their underlying interests. Bilateral negotiations with the government of national agreement they have not even achieved widespread success. Interestingly, the report for the semester from the 22 June to the 31 December 2015 of theEUNAVFOR MED II o Operation SOPHIA to the president of the Politics and Security Committee by the operations commander EUNAVFOR MED II o Operation SOPHIA as a tool for the adoption of a diplomatic strategy. The European Union is well intentioned to convince the Libyan authorities to give their consent through the tit for tat, that is, in giving Libya something in return, in order to obtain full consent for the implementation of the next phase. This must be the strengthening of the capacity of the Libyan navy and the coastguard, which the commander of operations EUNAVFOR MED II he would have suggested that it could also be done by Operation SOPHIA. This can be considered as a practical example of what the approach is, or rather, the overall picture of the EU, in the sense that the European Union itself has a set of objectives that are developed by competent institutions operating within the EU, and uses its policies as tools to implement the objectives set. This definition differs from general knowledge in the sense that it specifies both civil and military integration. The narrow interpretation limits the overall framework to crisis management, which was defined in the conclusions of the 2008 Council. We could actually believe that the Operation SOPHIA it must be focused on the dimension that falls within this overall picture through a series of points, such as developing a shared analysis, defining a common strategic vision, paying attention to prevention, mobilizing the different strengths and capabilities of the EU, engaging in the long term and so on.
The EU intervenes in international politics to make strategic use of its large container of instruments, in the sense that it wants to get the invitation of the government of national agreement (GNA), which is considered important to realize the full mandate of the SOPHIA operation, offering in turn the upgrading of the Libyan military structures.
With theEUNAVFOR MED II o Operation SOPHIA, the EU shows the propensity and ambition about its role on the world stage. Firstly, the EU did not merely react to the Security Council resolution or expected that the government of national agreement Libyan gave the invitation to determine in whole the mandate of the operation SOPHIA. The resolution n.2240 / 2015 was adopted on 9 October of the 2015, when the operation EUNAVFOR MED II had already been started for four months and had already passed to the phase II of type A. Secondly, this can be considered the first time, when an operation of the EU Policy and Security Committee foresees the possibility of being able to act in internal and territorial waters, as well as on the territory of a sovereign State, without the assent of that State, but with the sole authorization of the main body of the United Nations, id est the Security Council. Thirdly, the European Union is actively working to convince its counterparts to build up international instruments that allow it to do more than what is currently allowed to go beyond its borders.
A fundamental question concerning the legal structure of the operation SOPHIA it is in the fact that individuals have been captured and rescued by vessels participating in the Operation. The 2240 / 2015 resolution, of which I have often highlighted in my contribution, positions the individuals who have been rescued in one status at the time it justifies its authorization, in order to save the lives of migrants or victims of human trafficking on board these ships. Similarly, the resolution de quo authorizes an operation like that of SOPHIA Member States, acting individually or within regional organizations, to use all of them necessary measures (and therefore, theoretically, also measures involving the use of force), proportionate to specific circumstances, to counter traffickers of migrants and passers. In a very diversified way, the decision of the European Council n.2015 / 778 points to the reference of individuals captured and / or rescued within the operation in a very incidental manner. The only reference in the legal mandate of the operation EUNAVFOR MED II o SOPHIA is set out in the 6.2 recital of the 2015 / 778 Decision according to which the UNCLOS, SOLAS e (International Convention of Hamburg of the 1979 on the search and rescue at sea) include the obligation to assist people in distress at sea and to lead survivors to a safe place and, to this end, the boats assigned to EUNAVFOR MED they will be ready and equipped to perform the relevant tasks under the guidance of the competent rescue coordination center.
The EU Council does not mention the question of the exercise of jurisdiction over traffickers and human traffickers caught in the context of the operation SOPHIA. The operation was designed to dissuade the criminal activities carried out by a specific group of protagonists, but in any part of the legal system is established what to do with these individuals stopped. This differs widely from the other sea operation carried out by the EU, such as Atalanta - known as European Union Naval Force Somalia-EU Navfor - which was launched in 2008 in order to protect both the humanitarian aid convoys destined for the Somali population and the merchant ships of the EU States exposed to the risk of piracy. The 12 article, on the European Union military operation aimed at contributing to the deterrence, prevention and repression of piracy and armed robbery off Somalia, of the joint action, 2008 / 851 / CFSP , of the 10 November 2008 council, is dedicated to the transfer of arrested and arrested persons in view of the exercise of jurisdictional responsibilities. It should also be added that there have been a series of changes regarding the operation Atalanta which have prolonged the duration of its operation. One wonders, why are individuals captured or rescued on board ships participating in the operation EUNAVFOR MED II / SOPHIA which is given a secondary role in the 2015 / 778 decision? Regarding the migrants or victims of human traffickers who are considered, the anomaly could be examined by the reason that the EU has tried to prevent SOPHIA was considered a real rescue operation. As for the captured individuals, one possible answer lies in the reason that while you are trying to get the consent of the government of national agreement (GNA) Libyan in order to operate in the territorial sea and inland waters - the so-called phase II of type B - as well as on its territory - phase III -, the EU Council has not made extensive reference to the exercise of jurisdiction over citizens of Libyan nationality arrested in international waters.
The Operation EUNAVFOR MED II o SOPHIA raises the plaintiff question of the right choice of legal basis in the action of the European Union. In the basic tool of the Operation SOPHIA, the EU Council chose only one legal basis from the Political and Security Committee. The European Union conducts a military crisis management operation, which contributes to dismantle the business model of trafficking networks and trafficking in human beings in the central-southern Mediterranean (EUNAVFOR MED), implemented by adopting systematic measures to identify, stop and disable vessels and vehicles used or suspected of being used by smugglers or come on traffickers of persons, in accordance with applicable international law, including the CNUDM (United Nations Convention on the Law of the Sea of 1982 - called Montego Bay) and the UN Security Council resolutions. The central point, therefore, is to prevent certain criminal activities. This differs widely from the United Nations Security Council's resolution n.2240 / 2015 where to save the lives of human beings on board boats used by smugglers e traffickers of migrants, is considered the main reason that goes beyond the authorization of the United Nations Security Council to act against such vessels. As previously mentioned, the only reference to the size of the rescue of the Operation SOPHIA can be found in 6, paragraph 2 of decision n.2015 / 778 which refers toassistance compulsory, under the agreements UNCLOS, SOLAS e .
The goal of dismantle the business model of trafficking networks and trafficking in human beings in the South Central Mediterranean it does not seem sufficient to justify the choice for a single legal basis of the Political and Security Committee. Identifying the EU's maximum purpose in countering these criminal activities is therefore important. Is it only in doing so that we can prevent further loss of life in international waters or curb illegal immigration within the EU? Although not very transparent, the EU Council decision n.2015 / 778 indicates that the answer is positive in both cases, where, in 2, it highlights that the European Council has expressed its indignation about the situation in the Mediterranean , underlining that the European Union itself will use every means at its disposal to avoid further loss of life at sea and to address the root causes of this humanitarian emergency, in cooperation with the countries of origin and transit, and there priority immediate is to avoid other victims at sea. This is different than giving a relief purpose to the Operation SOPHIA. The idea, in this case, lies in the reason that the Operation de quo aims to counter the various networks of traffickers of human beings need smugglers in order to prevent many people from boarding boats, where their lives are in serious danger. Furthermore, it is recalled that the EU Council has committed itself to strengthening the presence of the European Union at sea, in order to prevent it illegal migratory flows and to strengthen solidarity and internal responsibility. Since the operation SOPHIA to a large extent deals with stopping illegal immigration within the EU with military instruments - it is part of the overall EU framework for migration - an additional legal basis forArea of Freedom, Security and Justice it would have been favorable. Moreover, as regards the choice of the legal basis, there are other questions concerning the normative dimension of the legal system of the Operation SOPHIA. In a nutshell, the EU Council Decision n.2015 / 778 does not award a rescue mission to EUNAVFOR MED II o SOPHIA. It does not even refer to those who migrate, attempting to cross the Mediterranean Sea as potential asylum seekers or the existence of a refugee crisis. While recognizing the existence of an emergency of humanity in the Mediterranean, the crisis is treated as uniquely migrant crisis. The United Nations Security Council resolution n.2240 / 2015, by contrast, recognizes the fact that migrants may be individuals who fall within the definition of refugee, also referring to asylum seekers, and mentions that migrants should be treated according to the right of the refugee, that is to say the 1951 Geneva Convention relating to status refugees as well as the principle of non-refoulement and international human rights law. The principle of non-refoulement is set out in the 1 paragraph of the 33 article of the Refugee Status Convention - Geneva Convention of the 1951 -, according to which no contracting State will expel or repel, in any way, a refugee to the borders of territories where his life or his freedom would be threatened because of his race, his religion, his his citizenship, his belonging to a social group or his political opinions.
The EU Council can not be blamed for the negative regulatory aspects in the legal context of the Transaction SOPHIA (which are particularly evident when read jointly with Security Council Resolution 2240/2015). In addition to the many different political sentiments among the member states regarding the EU response to the human emergency in the Mediterranean, the Council faces important constitutional constraints. The EU Council is not inattentive to the views of the European Court of Justice regarding the double use of the legal foundations of the CFSP or non-CFSP.
Using only one legal basis of the CFSP, and ergo, which rejects an additional legal basis for theAFSJ (Dell 'Area of Freedom, Security and Justice), the EU Council is certainly safer from the repeal of the 2015 / 778 Council Decision.
Be that as it may, considering the small role migrants (not to say refugees!) Play in the legal framework of SOPHIA, perhaps the EU should have avoided renaming the operation as SOPHIA, after the name of a refugee girl, born on board a ship flying the German flag that participates in the operation.
(photo: EUNAVFOR-MED)
