Pushing people back across borders; turning asylum seekers away from shores. When such tactics were openly adopted and used with impunity by Australia’s navy and border force, it caused outrage and concern in the maritime community and pricked the interest of border protectionists the world over.
Disgust and outrage have, in time, been replaced by admiration at the sheer chutzpah of Australian governments such as Tony Abbott’s, who introduced a turn-back-the-boats policy as part of an electoral promise to better secure borders. This meant that vessels heading for Australia could be literally turned back towards Indonesia without a care in the world. The drownings would not stop, nor would the danger to the passengers be alleviated; they would simply take place in international waters or the waters of another country.
Other countries duly followed. Greece and Italy fashioned their own turn-back policies at sea. The UN Special Rapporteur on the Human Rights of Migrants Felipe González Morales spoke despairingly in June this year that the practice should end. “In the absence of an individualized assessment for each migrant concerned and other procedural safeguards,” he told the Human Rights Council, “pushbacks are a violation of the prohibition of collective expulsion and heighten the risk of further human rights violations, in particular refoulement.”
He also stated what all pupils of international human rights know: “States have an obligation to respect, protect and fulfill the human rights of everyone on their territory or within their jurisdiction or effective control, irrespective of migration status and without discrimination of any kind.”
The concept of control is important in matters of interception, rescue and forcible return. As the European Court of Human Rights found in Hirsi Jamaa v Italy, which saw the forcible return by Italian authorities of migrants to Libya, the applicants remained under the “continuous and exclusive de jure and de facto control of the Italian authorities” during the course of their transfer, triggering the obligation to protect their human rights. “Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.”
The International of the Law of the Sea 1982 outlines the obligation of every state’s vessels to “render assistance to any person found at sea in danger of being lost”. The International Convention for the Safety of Life at Sea and the International Convention on Maritime Research and Rescue affirm the obligation.
The LOSC also has a range of other relevant provisions on incursions of foreign vessels. Innocent passage into the state’s territorial sea is permitted under Article 17; in cases where such passage is not innocent – for instance, the breach of domestic immigration laws – states may take measures to halt passage. But under Article 18, a vessel, if deemed in distress, can also enter the territorial sea of the state in question even if migration laws have been breached.
Such thinking is bound to come across as soppily legal for the UK’s Home Secretary Priti Patel, who has been coming up with her own turn back the boats model. This has formed part of an arsenal of hostile measures against migrants including the proposed Nationality and Borders Bill (Bill 14 of 2021-22), introduced on July 6. Having gone through two readings of the House of Commons, it now rests with the Public Bill Committee, which is due to release a report on November 4.
In moving that the Bill be read a second time, Patel told Members that Britons had “had enough of open borders and uncontrolled immigration; enough of a failed asylum system that costs the taxpayer more than £1 billion a year; enough of dinghies arriving illegally on our shores, directed by organised gangs; enough of people drowning on these dangerous, illegal and unnecessary journeys […].”
The Bill came into being despite warnings from various Australian lawyers, doctors and former civil servants that their country’s refugee model was hardly the sort of thing that should inspire imitations. In the view of Australian Greens Senator Nick McKim and Benali Hamdache of the UK Green Party, the “New Plan for Immigration imports all the worst parts of the Australian government policy.” This includes the possible establishment of offshore processing (read detention) centres to places ranging from Rwanda to the Isle of Man and the creation of a temporary protection scheme.
The Bill takes the battering ram to a range of maritime practices, proposing to criminalise the practice of offering voluntary assistance at sea by targeting “those assisting persons to arrive in the UK without a valid clearance”. That good Samaritan service provided by such bodies as the Royal Lifeboat Institution, which has been accused of being a “migrant taxi service” by its detractors, promises to be roped in.
Last month, it was revealed that Patel was already busily urging the Border Force to get into the pushback business in ways that would pass muster under maritime law. According to “sources” within the Home Office, as reported by The Guardian, Patel had effectively become “the first home secretary to establish a legal basis for the sea tactics, working with attorney general Michael Ellis and expert QCs”.
Pushing back boat arrivals is not only lacking in humanitarian spirit but filled with monstrous danger. The Straits of Dover, for instance, is the busiest shipping route in the world. One suggestion moving its way through the ranks is the targeting of certain boats, keeping the issue of safety in mind. Dinghies are unlikely to fall within the scope of expulsion, as tempting as these might be. Larger, sturdier migrant vessels are likelier prospects.
France, being the country where most of the migrants depart from, has been particularly vocal on the issue. Pierre-Henri Dumont, the MP for Calais, has suggested that Patel’s policy “tears apart the UN Geneva conventions giving the right to everyone to apply to any country for asylum.”
Interior Minister Gérald Darminin also expressed his displeasure at the new approach, warning Patel that his country “will accept no practices contrary to the Law of the Sea, and no blackmail.” Righteously, Darminin also claimed that “safeguarding human lives at sea takes priority over considerations of nationality, status and migratory policy”. While this is very much in the spirit of protection, it is an attitude that is looking worn and tired. Patel, for her part, hopes her cross Channel colleagues will see good sense and take up a promise of UK funding to prevent the migrant crossings taking place. They may well do just that.