Malta must uphold international principle of non-refoulement

The People for Change Foundation today launched the results of its project: 'Access to Protection: A Human Right', calling on Malta to heed rulings of the European Court of Human rights that place an obligation on the country to proactively prevent the return of people to countries in which their human rights are at risk.

The report presents the final results of the 'Access to Asylum: A Human Right' Project in Malta, a 12-month research project that includes legal analysis, desk research and a round table discussion with various stakeholders held in May 2013.

The research comes at a time when issues of access to the territory and to protection could not be more prominent, after the attempted pushbacks of 2013.

"The primary argument is that the principle of non-refoulement applies irrespective of the classification of the act in question, including whether it is an interception or a rescue operation, and whether it is carried out by official vessels or by private vessels coordinated  by the State," the foundation said.

In their an analysis of the Salamis incident, the PFC foundation said this clearly highlighted that Malta, and Italy, could not evade their non-refoulement obligations by instructing rescuing vessels to return rescuees to places of disembarkation, to which their own official vessels are precluded from disembarking.

"Any such actions would amount to de facto refoulement and would be in violation of their  obligations under international law."

The report also identifies the challenge to countries from the Search And Rescue Convention regime, which does not effectively designate a default state of disembarkation. "These challenges cannot, however, justify the return of individuals to countries where they face persecution or any form of inhuman or degrading treatment or punishment," the foundation said.

In its recommendations, the foundation calls on the Maltese government to consistently respect the principle of non-refoulement, and that saving of lives at sea is always the first and main priority of any interception or rescue mission. "Persons rescued [should] not be returned to a place where they might face human rights violations including torture and cruel and inhumane treatment and punishment."

The foundation said the government should clarify that 'a place of safety' refers not only to the physical safety of the individual but must also be such a place where his/her human rights are protected and there is an effective opportunity to seek international protection.

"Sending people back to Libya, directly or indirectly, is in breach of Malta's international legal obligations," said Jean-Pierre Gauci, director of The People for Change Foundation. "We hope that the analysis undertaken in this report and project can help promote an informed discussion on these issues."

Social dialogue and civil rights minister Helena Dalli said that for over a decade migrants have arrived in Malta, "often seeking sanctuary from oppression."

She added that this has triggered a number of challenges for the country, politicians, NGOs, and society at large.

"Intolerance, racism and prejudice feature whenever migration issues crop up or are mentioned in the media," Dalli said, adding that most of the discussions and initiatives taken by NGOs, usually focus on how migrants and the Maltese people can live together. 

The minister said that much of the anxieties are not only related to people migrating to Malta but also about how migrants and Maltese people live together and attempt to overcome cultural differences, employment issues, different religious beliefs and other challenges.

"Therefore it makes a lot of sense that your project is aimed at attaining a shift from a perspective that focuses mainly on security and on combating irregular immigration flows to an approach which balances these exigencies with respect for human rights," Dalli said.