The phenomenon of irregular migration by sea or ‘boat migration’ is not new, but it has drawn significant attention since the Tampa affair in Australia in 2001 and during the so-called ‘migration/refugee crisis’ in the Mediterranean in 2015–2016. Both regions have replaced proactive search and rescue (SAR) efforts with militarised border security missions, which has had detrimental effects on those seeking asylum.
This policy brief explores this evolution and critically evaluates policies and practices of deterrence at sea against the standards set by international law. It considers:
- State powers of interception, as regulated by the law of the sea for the different maritime zones, in particular as they relate to flagless (migrant) vessels;
- The duties of SAR for flag and coastal States, clarifying notions of ‘distress’, ‘rescue’, ‘disembarkation’ and ‘place of safety’ as applied to asylum seekers;
- The interaction of State obligations under the law of the sea with their obligations under human rights and refugee law, especially with respect to the principle of non-refoulement, non-arbitrary detention and due process guarantees, as well as issues of extraterritoriality and ‘effective control’.
The policy brief concludes that current strategies in Europe and Australia are not viable in the long term. It recommends that both regions abandon practices of containment without protection, engage in genuine SAR actions, and embrace a comprehensive approach to ‘boat migration’ that conforms with States’ international legal obligations and the rights of refugees and migrants.
It specifically argues that States should:
- Conduct genuine SAR missions, instead of interdiction/deterrence operations, to comply with their obligations relating to the right to life and related responsibilities underpinning the SAR regime;
- Take account of the individual circumstances of each asylum seeker encountered at sea, avoiding direct/automatic returns before considering the conditions required for their safety and respect for their rights;
- Allow disembarkation of those rescued and permit access to their territory for the purposes of refugee status determination, as this is the only solution capable of guaranteeing that any subsequent removal to a third country is safe;
- Embrace a comprehensive approach, in which law of the sea obligations are interpreted in accordance with international refugee law and human rights law, in particular the right to life, the prohibition on arbitrary detention and the principle of non-refoulement;
- Open up alternative pathways to ensure safe and legal access to Europe and Australia in humane conditions, thus avoiding asylum seekers having to resort to smuggling/trafficking rings, reducing fatalities at sea, and allowing for more orderly arrivals.