Protection At Sea And The Denial Of Asylum

Protection At Sea And The Denial Of Asylum [Ch 26 Handbook] Presented by: Prof. Dr. Violeta Moreno-Lax Date: May 24, 2022 Overview 1. Context: Facts & Figures [Sea Migration & 'Boat Refugees'] 2. International Law Framework: State Powers / State Obligations 3. Interdiction [Creating Spaces Of Non-Protection]: Direct / Indirect / By Omission 4. Consequence: Rescue De-Naturalized And Transformed Into A Denier Of Asylum Context: Sea Route - The maritime borders are the deadliest in the world  - > The maritime route is not 'new' despite emergency discourse  - [Most persons crossing are from top refugee-producing countries] Modalities of sea interdiction are evolving  - [First Vietnamese 'boat people' recorded in the 1970s] Maritime route is predominantly an 'asylum route'  - [Compared to a 'mass grave'] [Becoming more sophisticated and justified on humanitarian grounds] Nearly 50,000 Deaths Since 2014 (Source: IOM, Missing Migrants)  61% AT SEA  29,417 Drowning Int'l Law Framework: State Obligations At Sea - Flage State 'Every State shall require the master of a ship flying its flag ... to render assistance to any person found at sea in danger of being lost and to proceed to the rescue of persons in distress' Art 98 UNCLOS and Chap V Regs 10(a) SOLAS - Costal State 1. Coast watching + rescue of persons in distress at sea round its coasts. 2. Develop SAR services. 3. Definition of SAR regions OBJECTIVE= Preserve human life - 'Within each so defined SAR region, State responsible has primary responsibility for ensuring coordination and cooperation of SAR operations so that survivors are effectively disembarked as soon as reasonably practicable and delivered to a place of safety'. 2004 Amendments to SAR and SOLAS Conventions PERSONAL Every person found in distress at sea, without discrimination according to status - Rescue ≈ delivery to 'place of safety' - Rule 3.1.9 SAR Annex: 'particular circumstances' of survivors must be considered = place of disembarkation SCOPE OF SAR MATERIAL cannot be a place of OBLIGATIONS persecution or of exposure to a 'real risk' of ill treatment < Principle of Nonrefoulement must be respected - IMO Guidelines = SAR Obligations must be taken together with IHRL/IRL TERRITORIAL Everywhere at sea, regardless of jurisdictional zones Territorial Sea (12 Miles (Quasi-)plenary jurisdiction Arts 2, 18, 19 UNCLOS from baselines) (except innocent passage) Full police powers as in dry land. Contiguous Zone (24 Miles Limited police rights (incl.Art 33(1) UNCLOS from baselines) interdiction) to prevent breach of customs, fiscal, immigration or sanitary laws. High Seas (beyond CZ) - Right of visit to Art 110 UNCLOS establish ship's nationality ≠ interdiction power - Rule = exclusive flag State jurisdiction | Exception: flagless vessels? ALL POWERS REMAIN SUBJECT TO OTHER RULES Arts 2(3), 87(1) UNCLOS OF INT'L LAW' (SAR/IHRL/IRL) Direct Interdiction: Us Caribbean Program  Start: 1980s re Haitians (expanded to Cubans+ thereafter)  Technique: Direct, contact-based measures of detention, seizure, boarding and apprehension of survivors for repatriation or forcible transfer to Guantánamo and other locations (outside US)  Relationship to Non-refoulement: Does not apply (USSC, Sale) (Executive Order12807 (1992) as amended)  Justification: live-saving / prevents death (albeit negating rights) Interdiction By Omission: EU Mediterranean Approach  Start: 2014, after Italy cancelled its Mare Nostrum Op  Technique: accomplished by omission through withdrawal of naval assets (EUNAVFORMED Sophia), reduction of operational areas (Frontex), port closures (Malta/Italy), criminalization of SAR NGOs (all EU coastal States), or abandonment at sea (HRC, S.A. v Italy), sometimes mitigated via cooperation with third countries alerted and passed on the info of shipwrecks so they can intervene (e.g. Italy-Libya MoU / Frontex-Libya MoU)  Relationship to non-refoulement: supposedly not engaged  Justification: 'save lives by reducing crossings' (EEAS, EUNAVFORMED Sophia, 15 Sept 2016) Consequence / Conclusions - Modalities of interdiction have evolved over time to circumvent legal responsibilities, while keeping control - Shift from direct to indirect interdiction, increasingly performed by proxy or by omission - Based on expansive interpretations of State powers and reductive interpretations of State obligations - Justified through reliance on rescue / live saving rhetoric - Converting rescue into a denier of international protection by equating it to interdiction NEWEST DEVELOPMENTS → UK Channel crossings policy & Rwanda Plan (Nationality & Borders Bill) - Prohibitively expensive & unworkable - Inhumane, cruel, arbitrary, racist, neo-colonial - In direct violation of int'l obligations and domestic HR protections