[T. Alexander Aleinikoff is the UN Deputy High Commissioner for Refugees.]
Irregular maritime movement raises complex issues of “mixed migration” flows, life-risking sea crossings, varying state policies, well-ingrained smuggling and trafficking networks, and emerging regional processes. Movement of migrants, refugees and asylum-seekers by sea is a world-wide phenomenon, with Afghans, Sri Lankans, Rohingyas, and Bangladeshis, among others, travelling by boat in the Indian Ocean and Andaman Sea; more than 60,000 persons a year (mostly Ethiopians) arriving in Yemen; sub-Saharan Africans and now increasingly Syrians and Palestinians from Syria seeking to cross the Mediterranean from North Africa to Europe; and several thousand Cuban and Haitian migrants interdicted each year in the Caribbean.
The central goal of UNHCR is that states adopt policies and practices that are protection-sensitive. A protection-sensitive approach would, at a minimum, embrace the following core principles:
- The norm of non-refoulement, which prevents forcible return of a person in need of protection, applies wherever a state has de jure or de facto jurisdiction (that is, whether the individual is encountered on the high seas or within the territorial water of a state).
- Effective application of the non-refoulement principle requires fair and timely procedures for assessing whether an individual in an irregular situation is in need of international protection.
- During the time that refugee claims are being examined, persons must not be subject to arbitrary detention or inhumane or degrading treatment.
- Persons recognized as in need of international protection should ultimately be afforded a solution (such as third country resettlement or lawful presence in the state in which their claim is assessed).
Rescue at Sea
The vessels used by irregular migrants are often unseaworthy, and search and rescue efforts are frequently required in order to save lives. “Rescue at sea” standards are embodied in number of international instruments, but important gaps remains—particularly related to (1) where rescued migrants should be disembarked, and (2) how best to ensure the processing of asylum claims and the provision of solutions. A UNHCR-hosted experts meeting on Refugees and Asylum-seekers in Distress at Sea (held in Djibouti in 2011) supported a Model Framework for Cooperation for rescue at sea operations. The aims of the Framework are to reduce loss of life, ensure predictability regarding disembarkation, preserve the principle of non-refoulement, and foster burden-sharing. The expert group also supported the establishment of mobile protection teams that can respond in rescue at sea situations, including by providing assistance with the reception and processing of rescued persons.
In November of 2013, UNHCR launched the Central Mediterranean Sea Initiative (CMSI), which proposes a comprehensive strategy for the region that would strengthen search and rescue by E.U. authorities and private ships, identify safe places for disembarkation, and provide screening of migrants to assess protection needs and other grounds of vulnerability. As to burden-sharing, the CMSI recognizes that the location for assessment of refugee claims need not be the state of disembarkation and recommends the establishment of a joint processing pilot for persons rescued in international waters and the resettlement of persons found in need of protection. The Initiative also proposes measures to reduce irregular migration, including mass communication efforts in countries of origin highlighting the dangerousness of irregular movement at sea, the establishment of robust asylum and protection processes in North Africa, and the enhancement of legal migration opportunities.
Rescue at sea is a humanitarian response to migrants in danger on the high seas. Interdiction is a law enforcement activity undertaken to prevent irregular migration that seeks to avoid state migration rules and processes. The reasons for irregular migration are numerous: migrants for whom legal channels of migration are not available may seek to join family members or to obtain work; or persons involved in criminal activity may try to avoid detection by law enforcement officers. Of central concern to UNHCR are individuals who undertake irregular movement in order to flee from persecution, conflict or other situations of violence and seek to access international protection guaranteed by international law.
UNHCR recognizes that states have legitimate interests in law enforcement actions against smugglers and traffickers and migrants seeking entry outside of lawful avenues. But we urge states to ensure that such efforts comply with international conventions and norms relating to refugees and human rights. UNHCR’s Executive Committee has declared that “[i]nterception measures should not result in asylum-seekers and refugees being denied access to international protection, or result [in non-refoulement].” (Conclusion on Protection Safeguards in Interception Measures (Conclusion 97, 2003).)
Despite this well-recognized norm, we see alleged “tow-backs” of boats in the Mediterranean that result in the loss of life, “push-backs” in the Andaman Sea that seem to be instances of refoulement, and on-board screening and returns in the Caribbean that appear not to fully protect against non-refoulement.
Interdiction and return—without any process—raises obvious protection concerns (and was held in Hirsi Jamaa and Others v. Italy to be a violation of European human rights norms). Fortunately, it is not generally the rule, and states that intercept migrants at sea generally have policies and practices in place that they assert meet its duty to comply with international protection principles. Thus, they may (1) screen and/or process intercepted asylum-seekers on the high seas (e.g., ship-board screening by the U.S. Coast Guard); (2) undertake extra-territorial processing (e.g., United States assessments of “screened-in” Cubans in Guantanamo), or (3) transfer interdicted asylum-seekers to other states for processing (the transfer of asylum-seekers by Australian authorities to Papua New Guinea and Nauru is one of several measures undertaken by Australia to deter irregular migration). (more…)