'Does the EU Commission believe EU states may break international law?' - a response to a letter
Updated: Dec 22, 2021
Dear Ms. Boulehouat,
Many thanks for your response on the issue of Greece’s Nea Dimokratia government attempting for 56 hours from 28th October 2021 to carry out the largest single pushback – of 382 men, women and children – in documented history.
We genuinely appreciate your having taken the time to read our concerns and to reply to them.
We must, however, address one paragraph in particular, which raises some significant concerns and questions.
And we must stress that these are not rhetorical questions: we really do need answers to them, because these are matters of the absolute utmost importance to every person in the world.
Please allow us to explain.
In your response, dated 20 December 2021, the third paragraph reads – in full:
‘The Commission would like to point out that Member States are competent to decide which vessels can enter a country's territorial waters, as well as to coordinate SAR events and indicate places for disembarkation.’
We may in a moment come to the issue of ‘competence’.
But before we do, we must ask - in the light of this paragraph – whether the Greek government has been entirely accurate in its reporting of this incident to the Commission.
The reason we ask is because the Greek government had already allowed the vessel into its waters. It was travelling from Turkey to Italy when it broke down a few kilometres south of Crete. That is, it broke down and was in distress in Greek waters. Not ‘close to them’ or ‘while requesting access to them’.
Given that, Greece’s ‘competence’ in deciding which vessels may enter its territorial waters is on display: it decided the vessel could enter its waters, and allowed it to do so. We would be distressed to believe that the Commission was unaware of this pertinent fact, and are happy to steer you correctly on this point if that was the case.
And we must ask a slightly deeper question: had the incident taken place as your response suggests the Commission believes it may have done – that is, had the vessel requested entry to Greek waters and the Greek government had for some reason denied it the right to do so – under which law does the Commission believe this decision would have been justified?
To put it a slightly different way, the Universal Declaration of Human Rights, the Refugee Convention of 1951 and the Refugee Protocols (1967) – to all of which Greece and every other EU member state are signatories – are all extraordinarily clear that men, women and children are allowed to cross borders in order to claim asylum.
A nation state can deny these people access only under very specific and extraordinary circumstances, specifically if there are genuine and significant threats to national security posed by allowing them in. We are certain you will agree that there was no such threat in this incident.
So, once again, we must ask:
As the entirety of international law is built upon and must not – indeed, by definition, cannot – negate any part of the Universal Declaration of Human Rights, and as the entirety of refugee law is laid out in the Conventions and Protocols, and as this is clearly the issue upon which this entire incident was based, does the EU Commission believe, and is its fundamental position, that there is an EU or international law under which any country within the EU would be justified in refusing access to, or expelling, any vessel containing men, women and children seeking asylum?
If this is the Commission’s position, please can you let us know which law ‘enables’ a country to do so, and how this is not in direct contravention of any or all of the Universal Declaration of Human Rights, the Refugee Conventions (1951) and the Refugee Protocols (1967)?
In this incident, as noted, the Greek government did not deny access to the vessel in question, and indeed only showed any desire to expel it from Greek waters when it became clear that it contained 382 men, women and children who wished to exercise their right to apply for asylum.
But your response appears also to argue that the Greek government was perfectly within its rights to take these people literally wherever it wanted to.
Even if we were to ignore the fact that what it attempted to do was convince Turkish authorities to take the ship to Turkey, all the while towing it towards Turkish waters, while denying its Coastguard had even located the ship, and only allowed it to land after realising there was no possibility it could either legally or illegally force it into those waters – which is in fact exactly what happened – international law once again seems to directly contradict your statement.
Once again, maybe we have misunderstood.
But to explain, under the regulations contained in the UN Convention on the Law of the Sea, and subsequent Maritime Safety Committee Guidelines on that Convention, it is in fact the duty of any state to rescue any ship in distress (and its passengers) in its territorial waters, and to treat them humanely.
The ship in distress in this case was 7.2km from a safe port, with a further six safe ports within 50km, and nine within 100km (this is if we only count large coastal towns and cities). Any or all of these could have been reached within 20 minutes to four hours. There were at least a further two – arguably four – within a further 100km radius (so now, 200km).
Any or all of these ports could have been reached within an absolute maximum – and this is an extraordinarily conservative and generous estimate – of ten hours.
Where the Greek government instead allowed the ship to land and people to disembark was more than 280km from its point of distress, in Kos. To reach here, a maximum of 11 hours would perhaps – even were the ships to have travelled at an inexplicably low speed – have been needed.
Instead, the Greek government ordered its Coastguard to tow the ship and its 382 passengers for more than 500km, spending 56 hours in the water – more than five times as long as could possibly have been necessary – and did not provide water, food, or medical assistance throughout the journey.
The only possible reason it could have chosen to keep the boat circling slowly in Greek territorial waters next to those of Turkey could not have been a desire to ‘assist’ the people on board, nor indeed to treat them humanely, as the law demands.
Please can you let us know whether the EU Commission considers that this was acceptable, and if so, under which law?
In terms of ‘competence’, we agree that the Greek government, in common with all EU member states, is indeed ‘competent’ to decide whether to allow a vessel into its waters. It decided to do so.
But having received a distress call from that vessel, may we ask whether the Commission believes towing that vessel, its crew and all its passengers for more than 56 hours over a distance of more than 500km was genuinely ‘competent’? Or even legal?
Once again, we thank you for having read and considered what we sent, and for your response to it.
As always, we believe in the EU’s stated aim to protect and promote international law, and we trust that this aim will become increasingly apparent in coming months and years in its activities on its borders.