Issue link: https://maltatoday.uberflip.com/i/1276949
7 maltatoday | SUNDAY • 9 AUGUST 2020 OPINION AS the summer lull hits the countries bordering the Medi- terranean, the problem of ille- gal migration continues to ex- acerbate. The concern of many Maltese about this problem is palpable. Some are genuine in their comments, others are just plain racist. To complicate matters, there is no doubt that human traffickers are making money out of this phenomenon. Meanwhile, gen- uine NGOs out to rescue those whose sea crossing turns out to be a dangerous venture are ac- cused of co-operating with the traffickers. This year 13,000 migrants have already entered Italy – 5,000 of them via the island Lampedusa where the situation is nearing boiling point. Malta and Spain have also registered a dramatic increase in the number of im- migrants that they have had to accept. To complicate matters, the entry of such immigrants into Malta has contributed to a recent sudden misleading spike in the number of COVID-19 in- fected persons in Malta. An agreement tailored in Malta by a small number of EU member states to create a burden sharing mechanism has been practically rejected by other member states who do not want to accept any migrants at all. A recently formed local an- ti-immigrant NGO – Malta tal-Maltin – is organising a pe- tition asking the Maltese Parlia- ment to decide to refuse all entry of such immigrants into Mal- ta. The wording of the petition leaves no doubt that it puts the blame for this problem on the EU. Some apparently think that if Malta were to leave the EU, the problem would be solved and pushbacks would be possible. This is utter nonsense and mis- leading. Malta's responsibility for accepting refugees does not stem from our EU membership but from the fact that Malta is a signatory to the Refugee Con- vention or the Geneva Conven- tion of 28 July 1951 to which we acceded in 1971, making it part of our international obligations. This predates even Malta's re- quest to become an EU member. Article 33 of the convention – Prohibition of expulsion or re- turn ('refoulement') says that: 1. No Contracting State shall expel or return ('refouler') a ref- ugee in any manner whatsoev- er to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, mem- bership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been con- victed by a final judgement of a particularly serious crime, con- stitutes a danger to the commu- nity of that country. Malta's EU accession in 2004 simply encoded the existing in- ternational obligations to apply to all members states into EU law. Before the 1990s the EU did not even have a migration policy as such and its current migra- tion policy is mainly about how the member states cooperate to implement the overriding inter- national obligations that remain in force. The principle of non-refoule- ment is seen by many legal ex- perts as 'jus cogens', or interna- tional customary law, which is so essential, that it requires no treaty or contract but applies to all states as natural law. The principle itself came into effect after World War II when many states had refused to accept Jew- ish refugees with the tragic con- sequences that we all know. It is obvious, however, that the circumstances regarding refu- gees today are completely differ- ent from what they were in July 1951 when the Geneva Conven- tion was originally signed. Contrary to what many seem to think, therefore, Malta exiting from the EU (Maltexit) does not make any difference to our in- ternational obligations to accept refugees. One can argue that many of these migrants do not qualify as refugees. If this is the case, Mal- ta has every right to send them back to their country of origin. We do not need Maltexit to do this. Here the issue of whether these migrants qualify as refugees be- comes important. In fact, the EU law regarding refugees re- fers to the obligation to examine whether migrants have a right to political asylum. This law deter- mines which EU member state is responsible for the examination of an application for asylum, submitted by persons seeking international protection within the European Union under the Geneva Convention and the EU Qualification Directive. The so-called Dublin System establishes a Europe-wide fin- gerprinting database for un- authorised entrants to the EU. The Dublin Regulation aims to determine rapidly the member state responsible to consider an asylum claim and provides for the transfer of an asylum seeker to that member state. The idea is to prevent an ap- plicant from submitting applica- tions in more than one member state and to reduce the number of asylum seekers, who are shut- tled from member state to mem- ber state. The country in which the asylum seeker first applies for asylum is responsible for ei- ther accepting or rejecting the claim, and the seeker may not restart the process in another EU state. This has resulted in an unfair burden on the countries on the periphery of the EU such as Mal- ta, Italy, Cyprus and Greece but other states such as Hungary, Slovakia and Poland have offi- cially stated their opposition to any possible revision or enlarge- ment of the Dublin Regulation, leading to the eventual introduc- tion of burden sharing via new mandatory or permanent quotas for reasons of solidarity. Currently, the move for the re- vision of the Dublin Agreement has festered into a stalemate. The irony of the local anti-EU stance is that it is only because Malta is an EU state that we can insist on burden sharing with other EU states. If Malta were not an EU member state, it would have no right to insist for burden-sharing and our prob- lems would be exacerbated rath- er than solved. At the end of the day, this problem stems from our posi- tion in the middle of the Medi- terranean. For centuries, Malta has ex- ploited our geographical po- sition to benefit us as a small island with practically no re- sources. On this one, the disad- vantages seem to outweigh the benefits. Exploiting migrants Many Maltese are, unfortu- nately, not shy of exploiting mi- grants. The recent story of how a Nigerian man was attacked and left without pay after he con- fronted his employer over miss- ing wages has shocked many. But the fact is that these peo- ple are being exploited and being paid peanuts for illegal undeclared precarious work... with the responsible authori- ties shirking from their duty to ensure that laws governing em- ployment in Malta are observed by everybody and in the case of all employees. Michael Falzon The EU and Malta's migration problem micfal45@gmail.com