Friday, November 11, the 234 migrants rescued by the ship Ocean Viking were able to reach the naval base of Toulon, after three weeks of wandering at sea. Final episode of the drama of migration which is being played out in the Mediterranean and whose unfolding and then the outcome can give rise to several keys to understanding.
At the level of European politics and integration, the showdown between Paris and Rome, replaying the duel that opposed Emmanuel Macron in 2018 with the then President of the Italian Council of Ministers and current Vice-President Matteo Salvini, underlined the obstacles to the assertion of European solidarity On the question. At the level of internal policy, then, we have seen how much the situation ofOcean Viking accused the divisions between "humanists" and supporters of firmness.
Let us recall, moreover, that the remarks having been worth exclusion for two weeks of the deputy of the National Rally Grégoire de Fournas were held precisely on the occasion of the speech of a deputy of rebellious France denouncing the fate reserved for the passengers of the humanitarian ship.
The latest episode in the epic ofOcean Viking is also and among other things subject to a legal analysis.
The limits of the international law of the sea
During his wanderings, the difficulties of finding a landing place again underlined the limits of a law of the sea struggling to impose on a clearly defined state to open its ports to welcome the survivors. The decision to let the passengers of theOcean Viking landing in Toulon is also significant. It certainly signs their temporary support by France, but does not entail, at least initially, their admission to French territory (in the legal sense). What the Minister of the Interior did not do for lack of underline).
This situation then makes it possible to highlight one of the singularities of the legal conception of the territory, in particular with regard to the situation of foreigners. waiting areas are a clear illustration of this.
The "waiting areas"
Airports were the first spaces where these areas appeared, considered as not legally falling within the territory of the host State. The film Terminal, in which Tom Hanks portrayed an Iranian who had lived for several years in Roissy – where he died this Saturday November 12 –, in 2004 brought this situation to the attention of the general public.
In France, the "international zones", initially shrouded in vagueness as to their legal basis and within which the authorities therefore claimed not to be subject to respect for the rules protecting human rights, gave way to " waiting areas" thanks to the Law of July 6, 1992).[Nearly 80 readers trust The Conversation newsletter to better understand the world's major issues. Subscribe today]
A situation of exclusion – at least, alleged by the authorities – from the law was then replaced by an exceptional regime: the people kept there were still not considered to have legally entered French territory.
No longer – allegedly – placed “outside the law” as the international zones were, the waiting zones nevertheless remained “above ground”. One of the consequences of this is that any asylum applications lodged there then come under the heading of “asylum at the border”. They are therefore subject to a regime, in particular procedural, much less favorable to applicants (Code for the entry and stay of foreigners and the right to asylum CESEDA, Title V, articles L.350-1 to L.352-9).
The “legal fiction”
The “legal fiction” constituted by waiting areas now extends, among other things, to railway stations open to international traffic, to ports or close to the place of disembarkation (CESEDA, article L.341-1). These "enclaves" within the territory, around a hundred now, may also include, including "near the station, port or airport or near the place of disembarkation, one or more places of accommodation providing the foreigners concerned with hotel-type services" (CESEDA, article L.341-6).
“for the period from November 11 to December 6, 2022 inclusive, a temporary waiting area on the right-of-way of the Toulon naval base and on that of the CCAS EDF Holiday Village 1654, avenue des Arbanais 83400 Hyères (Giens) ".
Welcomed in this Holiday Village whose "hotel-type services" do not seem to correspond to the caricature opportunely portrayed by some, the survivors remain, legally, at the borders of France.
At the gates of French territory
They do not therefore find themselves in a zone of lawlessness: placed under the control of the French authorities, they must be guaranteed by them the respect of their human rights. At the gates of French territory, migrants rescued by theOcean Viking nonetheless fall under the French "jurisdiction" as recalled by the European Court of Human Rights. France is thus bound to observe its obligations, in particular with regard to the conditions of their forced maintenance within the zone.
Some of the survivors will recover their freedom by being allowed to legally enter the territory of France. This is the case of unaccompanied minors, whose it is announced that they will be cared for by Child Welfare.
This is also the case for those who have been authorized to file an asylum application on French territory and will have been issued, for this purpose, an eight-day regularization visa. Among them, the majority (175) should be sent to European States which have undertaken to receive them, presumably so that their applications for international protection can be examined. Expression of a European solidarity at a minimum of which it will however be necessary to see the suites.
Finally, for all the others, those to whom a refusal to enter French territory has been notified and who will not be supported by any other State, the Minister of the Interior specifies that they will be forced to leave the area of waiting for a destination that still remains for the less uncertain. These will then have been (very) temporarily welcomed by France but will be considered as never having entered French territory.