Troubled Waters – The Legal Issues Inherent in the Irish Defence Forces’ Role in the Mediterranean Migrant Crisis

Forthcoming, Volume X of the Irish Yearbook of International Law

UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 06/17

18 Pages Posted: 4 May 2017  

Patrick Burke

Defence Forces Ireland - Legal Service

Date Written: April 11, 2017

Abstract

After an emergency European Council meeting to deal with the migrant crisis in the Mediterranean following the loss of over 800 people from a boat off the coast of Sicily in April 2015, An Taoiseach, Enda Kenny T.D. announced that Ireland would send a naval ship to assist with the humanitarian rescue mission then led by the Italian authorities. Amongst the planning factors to be considered by Defence Forces Headquarters staff were the legal complexities inherent in sending a naval ship to engage in search and rescue humanitarian operations in waters outside those of the State. This included the necessity for a potential Memorandum of Understanding (MOU) with Italy and also perhaps Malta, who control adjacent maritime search and rescue regions, as well as command and control of the ship and any asylum obligations that Ireland would have towards persons rescued by its navy in international waters. Ireland was clear in declaring its intent from the outset that it would not be participating in any form of border-control; the focus was on search and rescue and humanitarian tasks. The wording of Section 3 of the Defence (Amendment) Act 2006 precluded any members of the Defence Forces being despatched to form part of any other force operating within the Mediterranean. While this mitigated some of the legally complex issues surrounding status of forces agreements and the kind of command and control issues raised by the Defence Forces’ participation in UN or EU-led missions, the lack of a standardised legal framework also created its own operational difficulties.

This paper will seek to explore the complex legal imperatives that underpin what on the surface appears to be a straightforward humanitarian operation and to outline the role that law continues to play in planning for and conducting contemporary military operations. It will consider how the moral imperative of saving lives in peril at sea has been overtaken and codified by law, in particular international law of the sea, and latterly by international human rights law. The paper will also explore how both moral and legal imperatives have coalesced to place an onus on both rescuers and States to ensure that those rescued are taken to a place of safety. While reflecting on the competing legal and moral issues involved in operations of this nature, the paper will outline how relevant strands of international law were utilised in the military decision-making and planning process for the deployment of the Defence Forces in support of an international humanitarian rescue mission in the central Mediterranean. Finally, it will also reflect on some of the critical challenges encountered in this deployment, in particular the threat posed by a sophisticated migrant smuggling network and the need for more effective burden sharing in the reception and resettlement of migrants that have made the perilous journey across the Mediterranean.

Keywords: Ireland, Navy, Migrant Crises, Defence Forces, humanitarian, military

Suggested Citation

Burke, Patrick, Troubled Waters – The Legal Issues Inherent in the Irish Defence Forces’ Role in the Mediterranean Migrant Crisis (April 11, 2017). Forthcoming, Volume X of the Irish Yearbook of International Law ; UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 06/17. Available at SSRN: https://ssrn.com/abstract=2962312

Patrick Burke (Contact Author)

Defence Forces Ireland - Legal Service ( email )

National Maritime College of Ireland NMCI
Ringaskiddy
Cork
Ireland

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