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EXTERNALIZING MIGRATION MANAGEMENT

Once disembarkation has taken place, a pivotal role should be played by
the UNHCR and the IOM. Under the auspices of the IOM, migrants would
be returned and reintegrated to their countries of origin. Instead, asylum-see-
kers would be channelled to existing EU resettlement schemes and legally
admitted in Europe on a voluntary basis and with the cooperation of the
UNHCR. In any event, asylum seekers «would not acquire the right to access
the asylum procedure in an EU Member State» because the EU law does not
apply extraterritorially and there is no right for a third-country national to
claim asylum outside the EU. The only way «would be by establishing [new]
EU asylum system and EU courts to process [abroad] claims» for international
protection. This option is unfeasible, at least for the time being, due to insti-
tutional transformations and financial resources that its implementation would
require(16).
The whole system would be funded and supported by the EU and its
Member States while the disembarkation centres would be set up under the
auspices of the UNHCR and would be managed in full compliance with
international maritime law, international human rights law and international
refugee law. The ‘red line’ for all the stakeholders would be safeguarding
human rights of all individuals involved in SAR events, disembarkation and
post-disembarkation processes. In their joint proposal, in fact, the UNHCR
and the IOM stated their endorsement «to implement a predictable and
responsible disembarkation mechanism that prioritizes human rights and
safety first [and shares] responsibility across the Mediterranean Basin» among
all countries(15).

7. Regional disembarkation platforms bring new problems into the legal
discourse and «have spurred a wide range of criticism and concerns»(14). As
underlined by the UN Special Procedures, for instance, «outsourcing respon-
sibility of disembarkation to third countries, in particular those with weak
protection systems, only increases the risk of refoulement and other human
rights violations» like arbitrary or indefinite detention, torture and ill treat-
ment(17). The unpredictable political situation, the legal gaps and operational
obstacles in North African countries associated with their «reluctance to
accept disembarkation of migrants rescued at sea on their territory» - to the
extent that the African Union called(18) on «African states to refuse to coo-
perate with the EU in the implementation of those plans»(14) - are issues
which put in jeopardy the feasibility of the EU strategy or, however, its future
implementation in full compliance with legal obligations under international
and EU law.

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