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A MEDITERRANEAN PERSPECTIVE ON MIGRANTS’ FLOWS IN THE EUROPEAN UNION: PROTECTION OF RIGHTS, INTERCULTURAL ENCOUNTERS AND INTEGRATION POLICIES Edited by GIUSEPPE CATALDI Editoriale Scientifica Napoli EVALUATION SCIENTIFIC COMMITTEE EMILIO DE CAPITANI FREE (Fundamental Rights European Experts) Group, Bruxelles MARIA CRISTINA ERCOLESSI University of Napoli “L’Orientale” LUIGIA MELILLO UNESCO Chair in Bioethics, Italian Unit, Napoli LUIGI MASCILLI MIGLIORINI University of Napoli “L’Orientale” Publication realized with the contribution of the University of Naples ‘L’Orientale’, Department of Human and Social Sciences and Jean Monnet Centre of Excellence on Migrants’ Rights in the Mediterranean PROPRIETÀ LETTERARIA RISERVATA © Copyright 2016 Editoriale Scientifica s.r.l. Via San Biagio dei Librai, 39 – 80138 Napoli ISBN 978-88-6342-905-3 INDEX GIUSEPPE CATALDI, INTRODUCTION. “Economic” Migrants and Refugees: Emergencies (real and alleged) and the Law of the Sea 9 I PART Migrants’ Rights in the Mediterranean: a Juridical Overview GUY S. GOODWIN-GILL, Refugees and Migrants at Sea: Duties of Care and Protection in the Mediterranean and the Need for International Action 25 TULLIO SCOVAZZI, The Human Tragedy of Illegal Migrants 43 ROBERTO ZACCARIA, Constitutional Norms of a Common European Asylum System 49 FULVIO VASSALLO PALEOLOGO, The European Agenda on Asylum and Immigration. From the Struggle to Stop “Illegal” Immigration to the War Against Refugees 59 ANNA LIGUORI, L’expulsion des étrangers pour des raisons de sécurité nationale à la lumière de la Convention européenne des droits de l’homme 67 MARCO FASCIGLIONE, Assessing the Effectiveness of the Blue Card Directive between Challenging Transposition Processes, Lacklustre Results, and Proposals for Reform: Remarks from the Italian Perspective 95 GIORGIA BEVILACQUA, The Use of Force against the Business Model of Migrant Smuggling and Human Trafficking to Maintain International Peace and Security in the Mediterranean 119 6 MARIA CHIARA NOTO, Use of Force against Human Traffickers and Migrants Smugglers at Sea and its Limits according to the Law of the Sea and Human Rights Law 137 II PART Migrants’ Rights in the Mediterranean: a Cultural, Political, Historical and Sociological Overview ENRICO PUGLIESE, Migration Flows in the Mediterranean and the Italian Crossroad 157 IAN CHAMBERS, Colonial Objects, Postcolonial Subjects, Migrating Modernities 175 SILVANA CAROTENUTO, Hospitality, Alterity and Femininity 181 CELESTE IANNICIELLO, Changing Borders, Disorienting Maps: Mona Hatoum’s Art of Displacement 189 ANNALISA PICCIRILLO, Female Corpo-graphies in the Mediterranean Performance Zone 199 MONICA RUOCCO, Migration and Memory: Displacement Narratives of Syrian Women Refugees on Stage 207 SILVANA PALMA, Guess Who’s Coming to Dinner. Representations of Africa and Immigration Policies in Post- colonial Italy 223 IMMACOLATA VELLECCO, Immigrant Entrepreneurship in Italy 243 DANIELE FRIGERI and ANNA FERRO, The Importance of Migrants’ financial Inclusion as Part of the Integration Process 255 7 III PART The Stakeholders Point of View GIANVITTORIO CIOLLI AND FRANCESCO RUGGIERO, Operation Mare Nostrum: Causes and Development 271 AMEDEO ANTONUCCI, MARCO FANTINATO AND PASQUALE CAIAZZA, The Evolution of Enforcement Powers on the High Seas through the Air-naval Operations of the Guardia di Finanza against the Smugglers of Migrants in the Mediterranean Sea 283 PAOLO CAFARO, Migration by Sea: a “Search and Rescue” Emergency and a Big Challenge for the Italian Coast Guard 309 ANNEX The Stakeholders “Naples Charter” – From Mare Nostrum to Triton and the Way Forward to Deal with Migration in the Mediterranean Sea 319 “ECONOMIC” MIGRANTS AND REFUGEES: EMERGENCIES (REAL AND ALLEGED) AND THE LAW OF THE SEA Giuseppe Cataldi* 1. Because of the economic crisis and widespread political instability that exists throughout the African continent and that became more acute because of the ‘Arab Springs’, the departure of migrants seeking a better life in Europe has become a constant over the past few years. However, as we are well aware, the right of each human being to migrate is not matched by an equal duty on the part of the country of destination to welcome such migrants.1 Thus the massive phenomenon of unauthorized migrations, in respect of which we can make a general distinction between forced migration, determined by the need to escape political persecutions or contingent events (war, revolutions, environmental disasters) and migrations for economic reasons, the result of widespread and endemic poverty.2 The transit of these migrants through the Mediterranean is dramatic, for although migration by sea is a minority percentage of the whole it involves serious risks to human life because of the means of transportation used. It is by now a known fact that transnational criminal organizations control and profit from the entire chain of migratory movements, from initial departures, often from sub-Saharan countries, to transit across the desert, to detention in ‘clearing houses’ along the Southern shores of the Mediterranean, to embarkation on board rafts or, in some cases, ‘mother-ships’ from which migrants are then transferred to small dilapidated boats directed toward European coasts, up to the moment of the ‘assistance’ provided when, once they have reached land, they need to reach their chosen destination. The ‘corridors’ most commonly travelled by these ships are: the Channel of Sicily, the Ionian Sea, the Straits of Gibraltar. The Mediterranean is therefore the principal natural ‘wall’ obstructing migration. To this we must add the walls that the governments of several European nations have recently * Chair of Jean Monnet Centre of Excellence on Migrants’ Rights in the Mediterranean, University of Naples “L’Orientale”. 1 On the ‘Asymmetrical Right to Emigrate’ see T. Scovazzi, “Human Rights and Immigration at Sea”, in R. Rubio-Marin (ed.), Human Rights and Immigration, Oxford, 2014, p. 212 ff. 2 On the different meanings of ‘irregular migrant’ see S. Trevisanut, Immigrazione irregolare via mare. Diritto internazionale e diritto dell’Unione europea, Naples, 2012, p. 1 ff. 10 constructed, following the ‘collapse’ of Syria, to block the use of a ‘land route’ through Turkey, Greece, Macedonia, Serbia, Hungary, Croatia. How do we handle this phenomenon? The national and supranational legal tools currently available are inadequate and often obsolete. We know, for example, that responding to ‘emergency’ situations (real or alleged) is the guiding principle of the Italian policy on immigration. This is the policy implemented since 1989, when the s.c. Martelli law was approved, up to the present, to deal with the ‘North Africa emergency’, subsequent to the ‘Balkan emergency’, the ‘terrorism emergency’ and the ‘nomad emergency’. The intervention of the European Union has also been invoked in responding to these emergencies, but because of the contrast that exists among its member States it continues to provide evidence of its immobility when faced with the growing number of migratory flows through the Mediterranean and the increasing number of tragedies at sea. The challenge, for nations of the Northern shore and especially for the European Union now that it has decided to implement a common immigration policy, should be that of not denying its founding principles, and implementing the dictates of the Treaty of Lisbon and the EU Charter of Fundamental Rights. It follows that instead of building ‘walls’ (material and otherwise), we should be reconciling the humanitarian aspects, always a priority, with the need to control borders and the prevention and repression of crime, moving away from the logic of emergency. This because the true emergency is the ‘South-South’ emergency, with, for example, almost four million Syrian refugees in Lebanon and Jordan, a territory significantly smaller than that of the 28 EU Member States. It is essential that we first act on the causes that are forcing migrants to leave. Secondly, any decision regarding the management of migratory flows cannot deny the imperatives of ‘solidarity’ and respect of human rights. Finally, cooperation among States is indispensable if we are to prevent and suppress crimes connected to the traffic of migrants, managed by transnational criminal organizations. On a strictly humanitarian level, the most significant example of intervention is operation Mare Nostrum, inaugurated by Italy following the tragedy that took place off the coast of Lampedusa on October 3, 2013, an incident that caused over 350 deaths. This was a strictly national operation that lasted until the end of 2014 and was wholly compliant with the principles of the European Union. Equipment and men from various administrations, spread throughout a vast area of the Mediterranean (up to the Libyan coast) were employed, executing a 11 truly enormous number of operations and saving a great number of lives. Unfortunately, the high cost of this operation, and the criticism from numerous partners of the Union led to its conclusion. The principal criticism from domestic political oppositions and European governments (especially Spain and Greece) consisted in an alleged incentive to departures, known as a ‘calling effect’, given the likely possibility of being intercepted in a very vast area, ‘saved’ by Italian coast guard cutters and accompanied to ports of the peninsula. The validity of these claims was soon proven wrong in light of the tragic events during the months following the end of operation