People have been adopting various modes of dangerous travel to reach a destination by way of 'sea migration' for a long time. Tampa incidents in Australia and incidents in Mediterranean regions are still young in our minds. Recent unfortunate deaths in the oceans surely saddened our hearts. Owing to various practices and policies of the coastal and flag states, many travellers' efforts to reach the targeted destination fail, and many of them, consequently, are compelled to drown in the ocean waters. International legal instruments oblige the coastal and flag states to undertake necessary measures to 'search and rescue' the 'persons in distress' at sea. Despite the existence of international legal instruments, unfortunate incidents of death atsea are still happening. How could the international legal instruments help prevent such happenings?
Let me share some relevant portions from a 'policy brief' authored in 2017 ( POLICY BRIEF 4, The Interdiction of Asylum Seekers at Sea: Law and (mal)practice in Europe and Australia, Violet Moreno-Lax, May 2017, Kaldor Centre for International Refugee Law) where the policies, practices and strategies in Europe and Australia (in existence at that time) were mentioned and analysed.
According to this policy brief, "The increasingly securitised and militarised measures to counter maritime flows adopted by European Union (EU) Member States and Australia, among others, appear misplaced when considering the type of movements that occur. Overreliance on interdiction powers, which go beyond what is permitted under the law of the sea (section 3), coupled with a selective approach towards rescue obligations and human rights and refugee law standards operating at sea (sections 4 and 5), compound rather than resolve the situation. These approaches arguably overstep the limits of State sovereignty to the detriment of international protection for refugees and other vulnerable migrants (section 6)".
We find some important provisions in the international legal instruments, including United Nations Convention on the Law of the Sea (UNCLOS) on 'search and rescue' responsibilities in relation to the 'persons in distress' at sea. We further know that the principle of non-refoulement has already attained the norm of jus cogens.
One could see the interdiction/rescue through the lens of the principle of non-refoulement. According to the policy brief above," Interdiction measures, such as those allowed under Frontex regulations and Australian law, need to comply with the principle of non-refoulement (among others) and protect survivors from any action that exposes them to a well-founded fear of persecution or a real risk of serious harm. This covers instances of 'chain' or 'indirect refoulement' via intermediary countries (such as returns via Turkey or Indonesia)".
One could argue that customary international law has binding force for all States. The policy brief mentioned above further states that "The prohibition of refoulement is key to the international protection system and is considered part of customary international law (thus binding all States independently of explicit treaty commitments).Consequently, provisions like section 22 of the MPA, according to which maritime enforcement powers can be exercised under Australian law without consideration of Australia's international protection obligations, are in direct defiance of this prohibition. Basic tenets of international law require States to honour their international commitments in good faith. They are specifically banned from invoking the provisions of their internal law as a justification for failure to do so. International human rights and refugee law protections apply within the territory of the State concerned, but they may also have extraterritorial application. So long as affected individuals come within a State's 'jurisdiction', that State will have an obligation to 'ensure' that the relevant rights are guaranteed. As such, and notwithstanding the Refugee Convention's silence about its extraterritorial reach, there is general consensus that 'the ordinary meaning of refouler is to drive back, repel, or re-conduct, which does not presuppose a presence in-country', thereby supporting the view that article 33(1) of the Refugee Convention includes rejection at the border, in transit (or 'excised') zones, as well as (anywhere) at sea. The same applies with respect to the non-refoulement obligation in article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), article 7 of the International Covenant on Civil and Political Rights (ICCPR), and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), all of which prohibit exposure to a real risk of ill-treatment in whatever circumstances".
Various aspects and situations were considered, analysed and evaluated in the policy brief mentioned above. It further states that "As a result, whether interdiction takes the form of contact actions (such as seizing, towing, boarding and returning a vessel, or handing people over to third countries) or contactless measures (including warning, blockading, re-routing or ordering a change of course) is immaterial. In so far as 'the effect' of the measure concerned-whatever its name or form-'is to prevent migrants from reaching the borders of the [would-be host] State', exposing them to serious harm, the prohibition will be engaged. The establishment of 'effective control', whether through 'active' or 'passive' steps, is what counts as an exercise of 'jurisdiction', giving rise to international responsibility under human rights law.Thus, direct returns to Turkey by NATO units, or to Sri Lanka, Vietnam, or the edges of Indonesian waters under Operation Sovereign Borders, for instance, as well as indirect enforcement of migration/border controls through maritime blockades, as in Operation Sophia, are incompatible with the prohibition on refoulement".
We are not ready at all to hear or see any unfortunate events of the death of migrants in the ocean waters. The international community should come forward to pressurise the states to regulate their national laws in line with the international legal instruments, and respecting the principle of non-refoulement.
The writer is a barrister-at-law, human rights activist and an advocate at the Supreme Court of Bangladesh
