1. Introduction
In today’s globalized world, ‘boat migration’ has become an especially hazardous form of transborder movement, with the decline in the seaworthiness of vessels, the conditions on board, and the safety of the sea routes.Footnote 1 Over the last five years, it has been estimated that 11,400 people have perished in their attempts to cross the Mediterranean.Footnote 2 Other notable ‘boat migration’ pathways are in the waters north of AustraliaFootnote 3 and in the Andaman Sea.Footnote 4 Across regions, ‘boat migrants’ have been singled out for particularly harsh treatment, as demonstrated by Italy’s current refusals to allow rescue ships to dock, forcing them to voyage to other countries for safe harbour,Footnote 5 and by Australia’s ‘brutal model’ of offshore interdiction and push-back at sea.Footnote 6
Against this background, it is vital to assess the approaches of different coastal states against their international legal obligations and understand how different policy lenses are influencing the interpretation and application of binding commitments. In so doing, we intend to demonstrate how countries could better adhere to all applicable international duties (simultaneously) when it becomes necessary to save lives at sea, without adopting a self-help, ‘pick and choose’ approach.
This article sets out two case studies to examine this evolving reality and the legal frameworks that apply. Our analysis reflects the complex dynamics underpinning the decisions and responses to the phenomenon. We particularly seek to highlight the difficulties generated by the intersection of different regimes – and their solipsistic construal – including law enforcement under the law of the sea, search and rescue requirements, human rights, and refugee law principles. The regime governments purport to act under in a given instance reflects the way they choose to frame an issue and possibly exploit legal gaps in, or contested interpretations of, the relevant international obligations.
Our case studies show how the law is interpreted (or instrumentalized) in response to specific incidents of ‘boat migration’. First, we assess the legality of state action to migration across the Central Mediterranean, particularly between Italy and Libya, and highlight the resulting treatment of the MV Lifeline, which was turned away from a Maltese port on the basis that a contended rescue had occurred in Libya’s self-declared rescue zone and that Italy’s rescue authorities had directed the vessel to port in Libya. Second, we examine one of the very few instances of Australia’s response to migrants at sea that has details in the public domain, concerning SIEV 885 and the accompanying CPCF litigation.Footnote 7 The sample incidents involve different factual scenarios dealing with the application of discrete norms and principles of international law. The purpose of the comparative analysis is not to contrast the implementation of specific legal commitments in detail, but to lay bare more general commonalities in the way the governments in each jurisdiction (dis-)engage with their obligations under different (but concurrently applicable) international regimes.
Overall, we argue that the legal justification for the securitized response to each of the case study incidents involved the cherry-picking of self-serving elements by the states concerned, while ignoring others that may have led to a contrary conclusion as to the legality of government actions. Such an approach – we posit – risks the further fragmentation of international law.Footnote 8 Further, it erodes the pacta sunt servanda basis underpinning the entire system, according to which ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’.Footnote 9 In advocating a more humanitarian-focused approach, we rely on a process of systemic integration, which aims to reconcile the different legal regimes at play.Footnote 10 This approach is consistent with Article 31(3)(c) of the Vienna Convention on the Law of Treaties, which requires that account be taken of ‘any relevant rules of international law applicable in the relations between the parties’ in the interpretation of a state’s treaty obligations,Footnote 11 and it honours the UN Convention on the Law of the Sea (UNCLOS) commitment to a holistic understanding of states’ maritime powers that takes account of ‘other rules of international law’.Footnote 12
Prior to our case study analyses, we thus situate the relevant regimes in Section 2. The case studies then disclose how these operated, or should have operated, in specific examples in Sections 3 and 4. Through these case studies we confront the preponderant ‘security lens’, currently dominating state responses, to the (more comprehensive) ‘humanitarian lens’ advocated here, to show how a different outcome would have been reached for the migrants concerned, if a good faith reading of the law had been utilized compared to that actually deployed. In light of the experiences of MV Lifeline and SIEV 885, we conclude, in Section 5, that states following a selective approach of the applicable rules are actually in violation of their international legal obligations; they do not account for all relevant factors and principles in their decision-making. At the systemic level, this failure threatens the normative integrity of the legal regimes applicable to ‘boat migration’ and needlessly imperils the lives of many. Rescue, taken as part of the most ‘elementary considerations of humanity’,Footnote 13 constituting ‘a manifestation of … the universal juridical conscience’ of humankind,Footnote 14 provides the normative grounding substantiating this conclusion. Ultimately, our purpose is to demonstrate how a good faith interpretation of the relevant legal frameworks can (and should) be mobilized to save lives, and how that goal is undermined when national security concerns trump or ignore humanitarian interests. Focusing on boat migration as a laboratory in two separate jurisdictions, we thereby aim to contribute to the broader literature on systemic integration.Footnote 15
2. Legal frameworks applicable to boat migration
Migration by sea is regulated under international law and especially pursuant to international treaties, which states have implemented to varying degrees. This section focuses on the foundational texts that may concurrently apply in maritime contexts. It first addresses the law of the sea and the rights and duties that accrue to states for law enforcement purposes. It then considers the legal regime established for search and rescue under the auspices of the International Maritime Organization (IMO). Finally, it sets out key human rights principles that cut across regimes, and relevant dimensions of international refugee law.
2.1 Law of the sea and law enforcement
The UNCLOS establishes the primary rights and obligations of states in relation to different maritime areas. The greater the proximity of the maritime area to land the greater the rights of the coastal state in the area concerned. A coastal state exercises sovereignty over its territorial sea, which may extend up to 12 NM from the state’s baselines.Footnote 16 However, the coastal state’s sovereignty over its territorial sea is not unlimited and is to be exercised in conformity with the UNCLOS and ‘other rules of international law’.Footnote 17
Among others, state powers are subject to the right of innocent passage enjoyed by ‘ships of all states’.Footnote 18 This right allows for continuous cruising through a state’s territorial sea, including for the purpose of proceeding from or to a port facility.Footnote 19 However, the loading or unloading of any persons in violation of a coastal state’s customs or immigration laws may constitute an infringement of the right of innocent passage.Footnote 20 But, as further discussed in Section 3, there are some caveats, including that passage shall not be impeded in cases where it is rendered necessary due to force majeure, distress, danger, or in order to render assistance to persons or vessels in peril.Footnote 21
Beyond the territorial sea, the coastal state has authority within its contiguous zone to exercise the control necessary to prevent violations of its immigration laws ‘within its territory or territorial sea’ and has also the power to punish any infringement thereof – but only if ‘committed within its territory or territorial sea’.Footnote 22 This limited capacity to prevent and prosecute responds to the fact that, for all other means and purposes, the contiguous zone lies on the high seas, extending up to 24 NM from the coastline,Footnote 23 over which no state can claim sovereignty.Footnote 24 The freedoms associated with the high seas attach to ‘all states’,Footnote 25 including the right of navigation.Footnote 26 In this area, the principle of exclusive flag-state jurisdiction applies.Footnote 27 Therefore, coastal states have no specific rights over foreign-flagged vessels, in respect of migration or otherwise, unless the flag state expressly consents to it.Footnote 28
With regard to vessels without nationalityFootnote 29 – typically the situation of migrant boats – there is a special ‘right of visit’ to undertake a vérification du pavillon, including on board the ship. Commentators have taken different positions on what powers may be exercised over a stateless vessel and those on board.Footnote 30 The UNCLOS does not explicitly provide for a right to seize, arrest, or detain in relation to stateless vessels.Footnote 31 Thus, in the absence of an express basis, it may be inferred that the default rule of freedom of navigation continues to apply.Footnote 32 Whatever the case, the human rights obligations of officials visiting the stateless vessel remain applicable, as part of the ‘other rules of international law’ binding on the high seas discussed further below.Footnote 33
The states parties to the 2000 Migrant Smuggling Protocol may also have authority to board and search vessels flagged to other states party to the Protocol pursuant to the terms of that treaty.Footnote 34 The Protocol requires all state parties to criminalize migrant smuggling and related acts ‘when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit’.Footnote 35 In such cases, Article 8 of the Protocol allows a warship with reasonable grounds to suspect that a foreign-flagged ship is engaged in illegal migrant smuggling to request the consent of the flag state and take ‘appropriate measures’ against that ship, ‘as authorised by the flag state’. The same applies to stateless vessels, without any prior consent being required, but subject to the ‘appropriate measures’ being adopted ‘in accordance with relevant … international law’.Footnote 36 There is, however, no consensus as to whether the ‘appropriate measures’ provision provides proper legal grounding to detain the ship and/or the persons on board, especially if human rights guarantees are taken into account.Footnote 37
In fact, the Protocol does seek to ensure the compatibility of anti-smuggling provisions with international human rights law, introducing in Article 16 an obligation on states to respect the rights and protect those who are the object of smuggling operations, affording ‘appropriate assistance’ and ‘protection against violence’, focusing in particular on preserving ‘the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment’.Footnote 38 A savings clause, Article 19(1), further stipulates that the Protocol leave international commitments under other instruments of human rights and refugee law, and especially the principle of non-refoulement, intact.
States may further enter into regional or bilateral agreements that provide for additional policing powers against each other’s vessels or in each other’s territorial sea, consistent with the core rights and duties recognized in the UNCLOS.Footnote 39 Such a bilateral agreement between Italy and Libya is discussed below in relation to MV Lifeline.
2.2 Search and rescue regime
Notable in relation to law enforcement powers under the law of the sea is that there remains an expectation that human rights obligations or obligations derived from other international agreements will continue to operate,Footnote 40 including those on search and rescue (SAR). The SAR regime comprises the core obligations under the UNCLOS, as well as requirements enshrined in the Safety of Life at Sea (SOLAS) Convention and the Search and Rescue (SAR) Convention.Footnote 41 The IMO has also developed Guidelines to assist states in the interpretation and application of their responsibilities under these treaties.Footnote 42
Under the UNCLOS, states are to require the masters of their ships to ‘render assistance to any person found at sea in danger of being lost’ and to ‘proceed with all possible speed to the rescue of persons in distress’.Footnote 43 However, a master is not required to seriously endanger the ship, its crew or passengers, nor do more than may ‘reasonably be expected of him’.Footnote 44 Coastal states have, in addition, the obligation to ‘promote the establishment, operation and maintenance of an adequate and effective search and rescue service’ as a permanent structure to secure ‘safety on and over the sea’.Footnote 45
Besides the UNCLOS, the SOLAS Convention imposes an obligation on shipmasters ‘to proceed with all speed to the assistance of … persons in distress’.Footnote 46 Similarly, the SAR Convention requires parties to participate in the development of SAR services ‘to ensure that assistance is rendered to any person in distress at sea’.Footnote 47 Under both the SAR and SOLAS Conventions, the obligation to assist applies ‘regardless of the nationality or status of such persons or the circumstances in which they are found’ – thus including migrants in an irregular situation.Footnote 48 Moreover, the SOLAS Convention requires the master to treat rescuees ‘with humanity, within the capabilities and limitations of the ship’.Footnote 49
The obligation to assist is put in operation through the establishment of SAR regions and rescue co-ordination centres. Each SAR region is to be determined through agreement between the parties concerned,Footnote 50 and, ‘as far as practicable, should not overlap’.Footnote 51 SAR services are defined as ‘the performance of distress monitoring, communication, co-ordination and search and rescue functions, including provision of medical advice … assistance or … evacuation, through the use of public and private resources …’.Footnote 52
During the course of a SAR operation, it is the state responsible for the SAR region that has ‘primary responsibility’ to ensure survivors are disembarked from the assisting ship and ‘delivered to a place of safety’.Footnote 53 None of the UNCLOS, the SOLAS or the SAR Convention provisions explicitly requires a state to accept the disembarkation of rescuees onto their territory. Further, as the case studies will illustrate, in deciding on a place for disembarkation, the term ‘place of safety’ has proven difficult to define.
2.3 Human rights and refugee law
Beyond entitlements to assistance under the SAR regime, migrants are holders of human rights protections under international treaties, such as the International Covenant on Civil and Political Rights (ICCPR)Footnote 54 and the Convention against Torture (CAT).Footnote 55 In particular, the obligation of non-refoulement prevents any person who may be at risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment from being sent to a particular country.Footnote 56 Other human rights violations that may occur during maritime operations include infringements of the rights to life and physical integrity,Footnote 57 the prohibition of arbitrary detention, collective expulsion,Footnote 58 and denial of an effective remedy.Footnote 59 In addition, if a boat migrant claims to be a refugee, she or he is entitled to have that claim assessed,Footnote 60 and the various protections flowing from the Refugee Convention and 1967 Protocol become relevant as well, as the case studies below demonstrate.Footnote 61 In fact, as the European Court of Human Rights has clarified, ‘States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions’,Footnote 62 in particular, their ‘right to gain effective access to the procedure for determining refugee status’.Footnote 63
Debate has previously emerged as to the applicability of human rights and refugee law principles at sea.Footnote 64 The relevant test in extraterritorial contexts is whether the state exercises jurisdiction qua ‘effective control’ over an area or person abroad.Footnote 65 This standard applies in relation to the ICCPR,Footnote 66 the CAT,Footnote 67 and the European Convention on Human Rights (ECHR).Footnote 68 Once state authorities exercise control over a migrant vessel or the individuals on board – which may be ‘contactless control’ if nonetheless effectiveFootnote 69 – human rights obligations attach and must be observed.
While the legal framework available can thus support the humanitarian dimensions of helping boat migrants in danger at sea, the rights’ perspective has not necessarily prevailed in practice over the law enforcement and security concerns intended to protect national borders. The next section discloses how European coastal states in the Central Mediterranean have responded to recent SAR events, adopting a ‘closed ports’ strategy that criminalizes humanitarian rescues undertaken by civil society. The case of the MV Lifeline is particularly illustrative in this regard.
3. The Central Mediterranean ‘closed ports’ strategy: The MV Lifeline case
The MV Lifeline is a Dutch-flagged vessel operated by the NGO Mission Lifeline.Footnote 70 It was initially denied access to a Maltese port despite being in distress following the rescue of 234 people. As discussed in this section, the incident may be seen as a catalyst for the new ‘closed ports’ policy adopted by Italy and Malta. We first provide the general context, before detailing the situation of the MV Lifeline. The final objective is to assess state action through a security and a humanitarian lens to bring to light alternative approaches to the legal frameworks, providing guidance on how states could better adhere to their international obligations.
3.1 Towards ‘mare clausum’Footnote 71
The situation in the Central Mediterranean has been problematic for a number of years. Attempts to close it as an access route for ‘boat migrants’ date back to the early 2000s,Footnote 72 culminating in the conclusion of the 2008 Treaty of Friendship between the Gaddafi and Berlusconi governments.Footnote 73 Article 19 of the Treaty calls on both parties to intensify their collaboration in the fight against irregular migration and to promote the establishment of an integrated system of border control in Libya, for Italian actors with the required technological competence to administer it, and committing Italy to pay 50 per cent of the cost, with the EU bearing the other 50 per cent. Paragraph 3 of this provision commits parties to jointly define initiatives to ‘stem irregular migration flows’. It was under these terms that the 2009 ‘push-back’ campaign was conducted, through joint patrolling operations leading to the interception and return of migrant boats to Libya, which the Grand Chamber of the European Court of Human Rights condemned in Hirsi.Footnote 74
The Treaty had been ‘dormant’ throughout the period of the Arab Spring and ensuing war in Libya.Footnote 75 But on 2 February 2017, a Memorandum of Understanding was concluded with the UN-backed Government of National Accord ‘reviving’ it, with the specific purpose of implementing Article 19 of the agreement.Footnote 76 This is how Italy has been invested in the re-establishment of the Libyan Coast Guard (LYCG), including through the equipment, financing, and training of its officials. Italy has donated the four main assets of the LYCG and plans for an extra six patrol boats to be gifted to enhance Libyan capacity to co-ordinate maritime interventions autonomously.Footnote 77
For the time being, the LYCG has been incapable of operating at a ‘self-sustaining level’, lacking the ‘capacity for the minimum level of execution of command and control, including that necessary to coordinate SAR/SOLAS events’.Footnote 78 This is why the Italian military mission NAURAS, an extension of the Mare Sicuro Operation, active since 2015,Footnote 79 was launched in August 2017.Footnote 80 It consists of four ships, four helicopters, and 600 servicemen, of which 70 per cent are deployed at sea, with the other 30 per cent stationed in Tripoli harbour.Footnote 81 Their key mission is precisely to create the operational conditions and develop the command-and-control capabilities for the LYCG to become autonomous.Footnote 82 Moreover, the Italian Navy has assets in Libya to act as the Libyan Navy Communication Centre and main ‘logistic assistance/support hub’.Footnote 83 Since deployment, an Italian warship has played the role of a floating Maritime Rescue Coordination Centre (MRCC) in Libya, with the specific function of assuming ‘the cooperation and coordination of the joint activities of the Libyan Coast Guard and Navy, with a view to carrying out their command-and-control tasks’.Footnote 84 It is ‘thanks’ to the Italian Navy, rather than to independent action by Libya,Footnote 85 that the LYCG has performed 19,452 pullbacks in 2017,Footnote 86 arguably on Italy’s behalf, for Italy’s benefit, and via its pivotal support.Footnote 87 This level of control is clearly sufficient to trigger the extraterritorial application of the ECHR to ensure that Italy respects human rights obligations at sea.Footnote 88 Equally, this ‘effective control’ has been found to engage the ICCPR and the CAT in relation to state conduct at sea.Footnote 89 Italy, however, denies any connection to LYCG’s conduct, thereby disclaiming the applicability of its human rights obligations.Footnote 90
Since the change of government in March 2018, Italy’s stance on maritime migration has toughened considerably. Although the number of crossings has fallen by 78 per cent compared to the previous year,Footnote 91 drawing on electoral promises,Footnote 92 Interior Minister Salvini has set a ‘zero arrivals’ target.Footnote 93 This is to be achieved through a twofold strategy: closing ports to vessels rescuing migrants and discrediting SAR NGOs as ‘aiding people traffickers’.Footnote 94 In turn, pressure on Malta to accept disembarkations has increased as a result, leading both countries to complicated standoffs over responsibility for the survivors.Footnote 95
One such standoff occurred on account of the MV Lifeline, flying the Dutch flag and operated by the German SAR NGO Mission Lifeline. The vessel was carrying 234 migrants rescued between Libya and Lampedusa on 20 June 2018.Footnote 96 Apparently, the captain intervened of his own motion, responding to a distress situation he had witnessed and then informing the Italian MRCC of the rescue. Rome assigned a SAR case number and initially co-ordinated the operation, but it soon informed the captain that the LYCG had ‘taken over’ and assumed responsibility for the indication of a ‘place of safety’Footnote 97 – despite it lacking its own MRCC, being fully dependent on Italian instructions and support, and that LYCG interventions happen ‘under the aegis of the Italian navy’.Footnote 98
Considering Tripoli an unsuitable port of disembarkation,Footnote 99 in line with the widely documented cases of persecution, ill treatment, and enslavement of migrants throughout Libya,Footnote 100 the captain gauged the risks and headed north instead, where ‘all ports of safety [were] located … from [the MV Lifeline’s] position’.Footnote 101 Upon reaching the Maltese Search and Rescue Region (SRR) – but staying out of the 24 NM of the contiguous zone, the captain contacted RCC Malta, considering Valetta their next port of call and on account of ‘difficulties with the weather [and] urgent medical case’, making the decision literally for ‘safety reasons’.Footnote 102 Four members of the crew had become ill and all other members were highly stressed ‘after five days with nearly 250 people on board’.Footnote 103 Weather conditions were worsening; small riots amongst rescuees broke out, augmenting the risk of persons falling over board.Footnote 104 The captain then invoked his right to proceed to Valetta as port of refuge, deeming the situation on the MV Lifeline as one of distress.Footnote 105
Malta’s response was, however, unappreciative of the captain’s difficulties. It considered itself non-responsible for the SAR case, ‘having been carried out within the Libyan SRR’ and ‘with MRCC Rome being the first to intervene’.Footnote 106 Moreover, it accused the captain of ‘reportedly ignor[ing] instructions of the responsible authority, i.e. the Libyan Coast Guard’.Footnote 107 It recommended ‘to proceed closer to the authority responsible for issuing instructions on the Place of Safety’ and warned the captain that ‘RCC Malta will not bear any responsibility for any reckless decisions taken by [his] good self, including the disobedience to instructions of the coordinating and appropriate authorities’.Footnote 108 It added that Maltese authorities ‘[were] reserving the right to formally address the Lifeline’s Flag State authorities for any appropriate action and investigation’ and reproached the captain for his ‘loitering’ and ‘unnecessarily and unduly endangering the life of those under [his] responsibility, contrary to the applicable conventions’.Footnote 109 The solution, in their view, was to ‘await further instructions’ by the LYCG closer to Libya.Footnote 110
Ultimately, at an emergency summit, an ad hoc agreement was reached for the survivors to be distributed among eight EU Member States, with the ship being permitted to dock in Valetta.Footnote 111 However, the captain was brought under investigation, accused of ‘entering Maltese territorial waters illegally and without proper registration and a licence’, and the MV Lifeline was impounded.Footnote 112
Malta, like Italy, has since vowed to no longer allow migrant disembarkations.Footnote 113 This includes the withdrawal of landing rights to NGO aircrafts and ships, disallowing them not only to enter but also to leave Maltese ports, de facto impounding their assets.Footnote 114 Over 600 ‘boat migrants’ were reported dead off the coasts of Libya in the week following the introduction of the ‘closed ports’ strategy.Footnote 115 In a final twist of the policy, Italy, for the first time, prevented a private, Italian-flagged commercial vessel, the Vos Thassala, from docking in Sicily with 66 rescued migrants on board.Footnote 116 Interior Minister Salvini, labelling the Vos Thalassa’s intervention as ‘not necessary’, because the LYCG was in the vicinity,Footnote 117 announced he would also close Italy’s ports to ‘ships of international missions’ if they were carrying migrants, presumably including warships active within EUNAVFORMed Operation Sophia and the Frontex-led Themis mission.Footnote 118
3.2 Security lens
Italy and Malta have adopted a course fuelled by the anti-immigration rhetoric present in the national politics of both countries.Footnote 119 This is despite the sharp decline in the amount of arrivals via the Central Mediterranean since the ‘refugee crisis’ of 2015.Footnote 120 Whether on grounds of fear, opportunism or something else, both countries portray ‘boat migration’ as an extreme national security and existential concern (whatever the numbers). This, in turn, is used to justify extreme policies that seek to completely shut down the maritime entry route. The closure of their ports, the criminal investigations conducted against the crew and/or captains of NGO vessels,Footnote 121 and the seizure of their ships,Footnote 122 all respond to this line of action. But can any of these measures be justified under international law?
A security lens would centre the assessment around the interdiction powers of coastal states and the near-plenary sovereignty they enjoy within territorial waters. It would consider entry illegal and passage as non-innocent, deeming the intended ‘unloading of … person[s] contrary to … the immigration laws … of the coastal state’ as ‘prejudicial to the peace, good order or security’ of the country concerned.Footnote 123 The right of the coastal state to ‘adopt laws and regulations … relating to innocent passage’, particularly ‘in respect of … the prevention of infringement of … immigration … laws’,Footnote 124 would be invoked, and the explicit ‘rights of protection of the coastal state’ conferred by the UNCLOS provision relied upon. Indeed, Article 25 of the Convention allows coastal states to take whatever ‘necessary steps in its territorial sea to prevent passage which is not innocent’.Footnote 125 Further, if the conduct of SAR NGOs purporting to enter territorial waters and proceed to port was considered to amount to migrant smuggling or the facilitation of irregular entry, the coastal state could rely on the Smuggling Protocol to adopt such measures as considered necessary to establish criminal liability,Footnote 126 possibly including the opening of investigations and the impoundment of NGO ships.
Yet, the question emerges as to whether NGOs requesting access to ports to disembark rescued persons can be characterized as non-innocent passage. It is worth noting, in this connection, that passage ‘rendered necessary by force majeure or distress or for the purpose of rendering assistance’ ought not to be disqualified as non-innocent.Footnote 127 Rescue fundamentally involves such rendering of assistance and thus aligns with the ‘elementary considerations of humanity’ underpinning the entire law of the sea regime.Footnote 128 The ‘delivery to a place of safety’ is explicitly required by the international maritime conventions regulating SAR (in legally binding form) in accordance with which ‘passage shall take place’.Footnote 129 According to the text of the UNCLOS, coastal state powers to regulate non-innocent passage are not unfettered. They must conform not only with the UNCLOS provisions, but also with ‘other rules of international law’ that may be relevant – including SAR rules.Footnote 130 Moreover, after six days adrift, the MV Lifeline was itself in a situation that arguably reached the threshold of distress. This triggered a separate (customary) right of refuge in the nearest (safe) port in favour of the MV Lifeline that Malta was required to respect.Footnote 131
A further doubt arises as to whether subsequent entry to port, as in the MV Lifeline case, can be considered as constitutive of the criminal offences of the captain abetting unauthorized immigration or of contributing to migrant smuggling or human trafficking.Footnote 132 Since there was no intent on the part of the captain, no financial gain whatsoever, and no discernible connection to any organized crime ring, the constitutive elements of the crime under the Smuggling Protocol cannot be established.Footnote 133 The absence of exploitation also disqualifies the applicability of the Trafficking Protocol.Footnote 134 Importantly for the captain’s liability, because the transposition of these crimes into Maltese law requires similar conditions for the actus reus and mens rea elements to be fulfilled, their commission cannot be established under domestic regulations either.Footnote 135
In addition, as the rescue operations occurred beyond the territorial waters of Italy and Malta, penal jurisdiction over the master or any other crewmember at the service of the ship should be understood as expressly reserved to ‘the … authorities either of the flag State or of the State of which such person is a national’, pursuant to Article 97 of the UNCLOS, on the basis that the rescue could be viewed as an ‘incident of navigation’ under that provision and not a transnational crime. The emphasis on flag state authority further aligns with the recognition of the diverse duties of the flag state in exercising authority over its vessels, consistent with Article 92 of the UNCLOS. Accordingly, neither Italy nor Malta could validly rely on different arrangements adopted under their domestic laws as an excuse not to observe this international provision.Footnote 136 As a result, this brings into question Maltese power to prosecute the MV Lifeline’s captain for rescue incidents.
Finally, with regard to the impoundment of the MV Lifeline in Valetta’s port,Footnote 137 Article 97 of the UNCLOS may also be relied upon, to the extent it provides that ‘no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State’.Footnote 138 There is no basis for Malta to claim jurisdiction on this point when the incident is framed as a rescue situation on the high seas and, hence, an ‘incident of navigation’. In exercising jurisdiction purely by reference to the Smuggling Protocol, Malta neglects other important international legal principles that are at play.
Any accusation that the MV Lifeline was allegedly ‘illegally flying the Dutch flag’ – an accusation the captain, crew, and NGO headquarters have consistently denied – has no bearing on a coastal state’s right to exercise jurisdiction over a vessel that has entered port in distress following a rescue.Footnote 139 The contestation of the MV Lifeline’s flag seems strategic, as a move by Malta to find an alternative basis upon which to exercise jurisdiction, circumventing flag-state authorization. In relation to matters regarding registration, it is a duty of the flag state to ‘effectively exercise its jurisdiction and control’.Footnote 140 It is an exclusive prerogative of each state – the Netherlands in the case of the MV Lifeline – to ‘fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag’.Footnote 141 No other state can interfere. The only thing the UNCLOS allows is for ‘[a] state, which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised, [to] report the facts to the flag State’. On receipt of such report, then, ‘the flag state shall investigate the matter and, if appropriate, take any action necessary to remedy the situation’.Footnote 142 Yet, this does not appear to be the procedure followed by Maltese authorities, which seem instead to have selectively adhered to its international obligations.Footnote 143
3.3 Humanitarian lens
A humanitarian lens would add a different perspective and take account of the SAR regime and human rights and refugee law obligations concurrently applicable to the law of the sea and the Smuggling and Trafficking Protocols. This extra layer of law serves to elucidate the sustainability of the accusation on the MV Lifeline ‘of breaking international law by picking up migrants off the Libyan coast’.Footnote 144 Are NGOS forbidden from conducting rescues? Can states issue binding orders to rescuing ships to hand over rescued persons to the authorities of an unsafe country? Can disembarkation be denied without regard to human rights?
The suggestion that rescue by civil-society organizations somehow requires prior approval by coastal states is a relatively new development in the Central Mediterranean. Italy reacted to NGOs’ involvement in SAR by requiring them to commit to a controversial Code of Conduct in mid-2017,Footnote 145 while Malta has withdrawn landing rights to NGO assets to operate from the island, de facto disallowing their rescue activities.Footnote 146 No explicit legal argumentation has been made available in either case, which would explicate Italy and Malta’s position. Presumably, both countries implicitly rely on the fact that the SAR regime creates duties on coastal states, regarding coast watching and search and rescue of persons in distress, as a basis to invoke a right to control how SAR is performed within their respective SRR. Moreover, they also presumably rely on ambiguities around disembarkation – in the absence of clear rules, they seem to believe they can set any requirements for how and when boats can disembark rescuees in their sovereign territory.
Yet, the obligation under UNCLOS on coastal states is to ‘promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea’.Footnote 147 There is no wording in support of a reading of this clause to the effect that such ‘promotion’ need be understood as an exclusive power of the coastal state to arrange for SAR – and especially not in a manner that may be detrimental to the regime’s rationale. To the contrary, the UNCLOS explicitly foresees that SAR responsibilities be shared with flag states, on which it places the separate duty to ‘require the master of a ship flying its flag … to render assistance to any person found at sea in danger of being lost’ and, crucially, also ‘to proceed with all possible speed to the rescue of persons in distress … in so far as such action may reasonably be expected of him’.Footnote 148
The SAR regime does not create any new sovereign powers in favour of coastal states, but rather ‘area[s] of responsibility’ to be overseen in good faith to preserve the safety of human life at sea.Footnote 149 With that in mind, the UNCLOS requires shipmasters to proceed to the rescue of vessels in distress ‘if informed of their need of assistance’.Footnote 150 How that information is relayed is irrelevant. Both the SAR and SOLAS Conventions make clear that ‘[t]he master of a ship at sea which is in a position to … provide assistance on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance’. In so doing, their obligation vis-à-vis coastal states is, ‘if possible’, to ‘inform … the search and rescue service that the ship is doing so’ (as a matter of fact).Footnote 151 There is no prerequisite for shipmasters to seek prior permission to proceed. To the contrary, public authorities have an obligation (‘shall’) to ‘facilitate the arrival and departure of ships engaged in … rescue [activities]’.Footnote 152
Apart from the general accusation ‘of breaking international law by picking up migrants off the Libyan coast’,Footnote 153 one of the objections levelled against the MV Lifeline’s conduct, mentioned above, is that the captain purportedly ‘ignore[d] instructions of the responsible authority, i.e. the Libyan Coast Guard’.Footnote 154 This allegation is based upon the refusal of the Italian MRCC to co-ordinate the SAR operation, instead referring the captain to the Libyan authorities who ultimately indicated the ‘Port of Tripoli’Footnote 155 for disembarkation.
Two issues intertwine in this chain of events: first, whether a country, other than the flag state, whether Italy, Libya, or Malta, can deliver (binding) ‘instructions’ to a vessel on the high seas in the context of a SAR operation; and, second, if so, whether there are any limits as to the subject matter of those instructions and their foreseeable effects. These questions have been addressed with regard to the Italian Code of Conduct for NGOs operating within its SRR.Footnote 156 A similar conclusion can be reached in the current context. Due to the prohibition on any state claiming sovereignty over the high seas, no jurisdictional powers, different from those explicitly recognized by the UNCLOS or other relevant international treaties, can validly be established to deliver orders with legal effect to foreign ships.Footnote 157 Freedom of navigation and the rule of exclusive flag-state jurisdiction support this interpretation.Footnote 158 What is more, in the specific context of SAR interventions, the SOLAS Convention makes clear that no ‘other person … shall … prevent or restrict the master of the ship from taking or executing any decision which, in the master’s professional judgement, is necessary for safety of life at sea’.Footnote 159 Such level of discretion is essential to respond promptly and adequately to changing circumstances.
Therefore, as Gombeer and Fink have noted, on the high seas, contrary instructions could only be considered as ‘requests for cooperation’, intended to foster compliance with SAR obligations. Indeed, ‘the search and rescue service concerned … has the right to requisition [assisting] ships [so that they] render assistance’ and ‘it shall [then] be the duty of the master [of the ship] requisitioned to comply with the requisition by continuing to proceed with all speed to the assistance of persons in distress’.Footnote 160 But that does not seem to allow for the a contrario reading of an implicit power to impede or prohibit SAR by NGO vessels – especially where they are objectively ‘best able to render assistance’.Footnote 161 At most, the state with responsibility for the SAR region in which the vessel is located could seek to issue orders to a master of a vessel on the basis that the state concerned is fulfilling its primary responsibility to ensure co-operation in disembarking survivors and delivering them to a place of safety.Footnote 162 In case of any dispute, a MRCC may denounce unco-operative behaviour on the part of the foreign vessel concerned to its flag state, but can claim no enforcement powers of its own.Footnote 163 So, for Italy and Malta to claim disobedience by the MV Lifeline captain when on the high seas as the basis for his prosecution has no grounding in international law.
However, this is different from the question of whether orders (intended as such) may amount ‘to acts of [the contracting state’s MRCC] authorities [adopted onshore but] which produce effects outside its own territory’,Footnote 164 thus triggering human rights jurisdiction capable of leading to the establishment of responsibility of the state concerned.Footnote 165 ‘What is decisive in such cases is the exercise of physical power and control over the person in question’.Footnote 166 But direct contact is not always necessary – instances of ‘contactless control’ have been adjudged to be relevant as well.Footnote 167 The focus should be on the content and effect of the acts concerned.Footnote 168
As regards the content of instructions, in line with Gombeer and Fink’s findings, these cannot be such as to contravene the purpose of the SAR regime – which is to preserve the integrity of human life at sea.Footnote 169 Neither can they violate the prohibition of refoulement, the right to life, the ‘right to gain effective access to the procedure for determining refugee status’,Footnote 170 and associated procedural protections against arbitrary or collective expulsion – none of which are guaranteed at the hands of Libyan authorities, neither on board LYCG vessels nor on dry land.Footnote 171
The foreseeable effects of the instructions given by MRCC Rome first – relinquishing responsibility and requiring the MV Lifeline to liaise with the LYCG instead – and the subsequent instructions by RCC Malta to the same effect, are essential factors in assessing the possible risks of refoulement and related guarantees. Both countries ‘knew or ought to have known’ that such course of action would lead survivors to being taken back to Libya.Footnote 172 Acting in the knowledge that the life or integrity of persons in distress will be threatened, if delivered to the authorities of an unsafe country, is sufficient to infringe the positive, due diligence obligations attaching to rights of ‘boat migrants’ directly affected by the instructions at issue.Footnote 173 The same applies to a denial of permission to disembark, which may foreseeably endanger those on board the rescuing ship and nullify ancillary procedural entitlements. Although coastal states may not bear full responsibility to provide for a place of safety within their own territory under the SOLAS and SAR Conventions, the need to allow for disembarkation may arise out of the necessity to honour human rights.Footnote 174 State SAR obligations intersect with human rights and refugee law responsibilities, which constrain sovereign discretion and limit the options left for choice of action.Footnote 175 Neither Italy nor Malta could legitimately indicate (directly or indirectly) a transfer of survivors to the LYCG authorities without thereby violating their human rights obligations.
In sum, the ‘closed ports’ strategy, as part of the wider criminalization of solidarity with ‘boat migrants’ expressed by SAR NGOs and others, is unsustainable under international law. It follows a highly selective understanding of the law of the sea provisions and ignores parallel obligations concurrently applying in situations of distress. A much better approach is the one followed by the French Constitutional Court, recognising in a historic first that ‘Fraternity’ has constitutional force, alongside ‘Liberty’ and ‘Equality’ – the triad of values underpinning the French foundational text binding the French legislator. According to the Court, acts of mutual aid undertaken for humanitarian purposes cannot be punished or repressed, irrespective of the status of the persons helped, even where that results in their irregular entry into national territory without authorization.Footnote 176 A similar approach should guide legislators and prosecutors across jurisdictions when confronted with ‘boat migration’ situations in the Mediterranean and beyond.
4. The Australian containment approach: The SIEV 885 case
Australia’s experience provides a further example of what happens when a security-framed approach to ‘boat migration’ is taken to its logical conclusion. The recent moves by Italy and Malta to close their ports to the MV Lifeline discussed above echo the Australian government’s response to the MV Tampa back in 2001.Footnote 177 The decision to block the MV Tampa from accessing the Australian port of Christmas Island to disembark 433 asylum seekers rescued at sea was the trigger for Australia’s introduction of a maritime interdiction and offshore processing policy that survives to this day.Footnote 178 The adequacy of related practices in light of international obligations is what we turn to analyse hereunder.
4.1 Operation Sovereign Borders
The securitized approach has intensified with the introduction of the military-led Operation Sovereign Borders in 2013. Thereafter, boats suspected of carrying unauthorized migrants are intercepted at sea by Australian border protection vessels.Footnote 179 The priority is blocking access to Australian territory and returning migrants to their point of departure. The way in which this is achieved varies, based on the country to which return is being sought. Push-backs to Indonesia involve leaving migrants on the edge of Indonesian territorial waters, either in their own boat or Australian provided lifeboats.Footnote 180 Migrants are then provided with instructions and enough fuel and supplies to make it back to shore in Indonesia.Footnote 181 This approach is necessitated by the fact that Indonesia does not consent to the push-back operations and thus any incursion into its waters by Australian authorities would constitute a breach of Indonesian sovereignty.Footnote 182 In contrast, co-operation from Sri Lanka and Vietnam is more forthcoming in respect to facilitating returns, with ‘consensual’ arrangements in place for the return of people from those countries who are intercepted at sea.Footnote 183
As the case study examined in this section explores further, it will, however, not always be possible to return intercepted migrants. Where this is the case, they are brought to Australia and then promptly transported by plane to one of Australia’s Pacific offshore processing centres.Footnote 184 After a hiatus of approximately five years, Australia reopened the facilities on Manus Island in Papua New Guinea (PNG) and the tiny Pacific island nation of Nauru in late 2012. Following a PNG Supreme Court decision finding detention at the Manus facility unlawful, Australia announced the closure of that centre and suspension of future transfers to PNG.Footnote 185 As such, any future boat arrivals that cannot be returned to their point of departure will be transferred to Nauru.Footnote 186 Australia has made it clear that it does not intend to resettle any of the refugees transferred to either of those facilities in Australia. Instead, it has entered into agreements with third countries to provide resettlement options.Footnote 187 However, to date, the number of resettlement places available has fallen well short of what is required and, as such, refugees and asylum seekers continue to face long-term uncertainty on Nauru and Manus Island. The sum effect of the push-back and offshore processing policy is to completely block access to asylum procedures in Australia for those who travel by boat without authorization.
The fate of the passengers on board a vessel labelled as SIEV 885 by the Australian government provides an instructive example on how this policy is implemented in practice.Footnote 188 The interdiction and push-back component of Australia’s current policies is shrouded in secrecy. The government has an explicit policy of not commenting on what it refers to as on-water ‘operational matters’ for security reasons.Footnote 189 Given this secrecy, the exact details of individual interdiction and push-back operations are difficult to ascertain. Basic questions, including exactly where interdictions take place, the amount of time interdictees are detained at sea, and what powers the government purports to be acting under, remain unanswered.Footnote 190 This creates serious impediments to assessing whether the government’s actions conform with domestic and/or international law. SIEV 885 is one of the few examples where this veil of secrecy has been pierced. Passengers on board managed to reach a refugee advocate in Australia who briefed lawyers to launch a legal challenge. Details of their journey and the Australian government’s response were revealed in the course of the ensuing litigation.Footnote 191
On 13 June 2014, the Indian vessel set off from Pondicherry with 157 Sri Lankan Tamil asylum seekers aboard.Footnote 192 Their plan was to travel to Australia’s offshore territory of Christmas Island, 1,550 km northwest of the mainland.Footnote 193 Approximately two weeks into the journey, the vessel began experiencing engine trouble. One of the passengers called the Australian Maritime Safety Authority (AMSA), Australia’s search and rescue agency, and requested assistance. AMSA then tracked the boat’s progress and maintained regular phone contact over the coming days. Phone calls were also made by a passenger to a number of refugee advocates in Australia, updating them and reiterating that the vessel was in distress. On 28 June 2014, the Australian government dispatched two border protection vessels to respond to the situation. These boats reached the asylum seeker vessel on 29 June 2014. At this point, there was an incommunicado where the refugee advocates could no longer contact the asylum seekers on the vessel, and a refusal from the Minister to confirm the existence or status of the vessel or the people on it.Footnote 194 By this time, the SIEV 885 was around 16 NM from Christmas Island, inside Australia’s contiguous zone.Footnote 195 The engine had been damaged and the vessel was assessed by Australian authorities as being unseaworthy.
Australian maritime officers boarded and detained the SIEV 885 and all 157 people aboard were removed onto the Australian border protection vessel.Footnote 196 On 1 July 2014, the National Security Committee of Cabinet, the peak decision-making body for national security in Australia, decided that the detainees should be returned to India, pursuant to Australia’s boat turn-back policy, and the Australian vessel travelled towards India for the next 10 days with the detainees aboard.Footnote 197 It arrived near India on 10 July 2014, and waited there for 12 days, while diplomatic negotiations were carried out to facilitate repatriation.Footnote 198 On 23 July, negotiations seem to have broken down, prompting the Australian government to decide to take the passengers to Cocos (Keeling) Islands, an Australian external territory in the Indian Ocean.Footnote 199 The passengers disembarked the Australian border protection vessel on 27 July 2014, after 29 days of detention at sea. During this time, the asylum seekers, including 50 children, were kept in windowless rooms on the Australian border protection vessel and were only allowed outside for three hours a day.Footnote 200 Families were split up, with fathers held separately from their wives and children.Footnote 201 Immediately after their arrival at Cocos Island, the asylum seekers were transferred to the immigration detention facility in Curtin, in remote Western Australia.Footnote 202 Late in the evening of 1 August 2014, the passengers were removed from Australia and flown to the regional processing centre on Nauru, where many still remain.Footnote 203
4.2 Security lens
The government’s response to the SIEV 885 was carried out pursuant to legislative provisions, which incorporate a number of the security-related enforcement powers found in the UNCLOS into domestic Australian law.Footnote 204 The Maritime Powers Act 2013 (Cth) (MPA) authorizes the exercise of maritime powers against foreign vessels in Australia’s contiguous zone, where there are reasonable grounds to suspect the vessel is involved in a contravention of Australian migration laws.Footnote 205 This is modelled on Article 33 of the UNCLOS.Footnote 206 Once enlivened, the legislative provisions provide wide-ranging powers purportedly authorising the actions initially taken against SIEV 884, including intercepting, boarding,Footnote 207 searching,Footnote 208 and detaining the vesselFootnote 209 and passengers,Footnote 210 and moving them to the Australian Border Protection vessel.Footnote 211 Once SIEV 885 had been detained and the passengers transferred to the Australian vessel,Footnote 212 the power under Section 72(4) was engaged, authorising detention for the purpose of taking a person to a place inside or outside Australia’s migration zone.Footnote 213
This was the key legislative provision in dispute when a number of the asylum seekers challenged their treatment in the Australian High Court in CPCF.Footnote 214 While, initially, the asylum seekers had sought injunctive relief to prevent their return to Sri Lanka or India, the government’s decision to move them to Nauru made this point moot. The case was reframed around the issue of wrongful imprisonment. The asylum seekers argued that the decision to take them to India was invalid and their detention at sea for almost a month for the purpose of facilitating this unlawful. The argument turned on the accepted Australian constitutional principle that a statute authorising executive detention must limit the duration of incarceration to what is reasonably seen as necessary to affect an identified statutory purpose, which is reasonably capable of being achieved.Footnote 215 The fact that there was no agreement with India to accept disembarkation made the duration of detention uncertain.
Yet, in a close 4:3 majority decision, the High Court found that the detention of the plaintiffs was authorized. Reflecting Australia’s dualist legal system, the case did not directly deal with international law, but the implementing legislation. The majority were of the view that Section 72(4) of the MPA did not require certainty of disembarkation at a specific destination. Chief Justice French noted that the statute could not be construed as authorising ‘futile or entirely speculative taking’. However, it did authorize detention when there is knowledge or reasonable belief that the destination country will allow the person to enter its territory.Footnote 216 The ongoing diplomatic negotiations between Australian and Indian officials were sufficient to support this requisite reasonable belief. Justice Crennan concurred, finding that while removal must be to a reasonable place and within a reasonable time, Section 72(4) did not require certainty of disembarkation at a specific destination.Footnote 217 Justice Gageler adopted a similar approach, finding that the only limitation on the power was that it be exercised reasonably, in good faith, and in accordance with the objects of the Act.Footnote 218
4.3 Humanitarian lens
Both the government’s actions against the passengers of SIEV 885 and the ensuing legal challenge centred around security-related interdiction laws. However, as set out above, governments’ responses are also regulated by the international SAR regime, and international refugee and human rights law. The MPA is clear that the powers in the Act operate independently, and in addition to, any action where the exercise is to ensure the safety of the officers or any other person.Footnote 219 What follows is, accordingly, a brief examination of what Australia’s response would have looked at, if it had framed its interaction with the passengers through a SAR or refugee and human rights lens, inspired by the systemic integration paradigm.
Australia is a party to both the SOLAS and SAR Conventions.Footnote 220 The fundamental duty to rescue persons in distress at sea is implemented in domestic law through the Navigation Act 2012 (Cth). The duty applies to masters of government and border protection vessels,Footnote 221 but certain navy vessels are exempt.Footnote 222 AMSA is the statutory authority established to satisfy Australia’s obligations to provide rescue services under the SOLAS and SAR Conventions.Footnote 223 It was AMSA that initially co-ordinated the response to SIEV 885, after the authority received a number of distress calls from the vessel. The response thus began as a SAR event, with two border protection vessels deployed to respond to the calls. The government presumably purports that the rescue came to an end when the rescuees were transferred aboard the Australian ship. Details in relation to how rescues are to be performed are not set out in legislation. Rather, they are included in the National Search and Rescue Manual (NATSAR).Footnote 224 This is an administrative instrument promulgated by the National Search and Rescue Authority Council. It is recognized by the Australian Defence Force as a ‘standard procedure guide’ and ‘authoritative instruction on SAR best practice’.Footnote 225 Reflecting the position in international law, the manual provides that a rescue terminates when the survivors are removed to a ‘place of safety’.Footnote 226 However, the meaning of the term is not specified.
The designation of a rescue vessel as a place of safety is questionable under international law where the concept remains ill-defined and subject to divergent state practice.Footnote 227 As noted previously, the IMO Guidelines describe a place of safety as a location where rescue operations are considered to terminate and where the basic human needs of survivors to food, shelter, and medical treatment can be met.Footnote 228 The 2004 amendments of the SAR and SOLAS Conventions state that survivors are to be ‘disembarked from the assisting ship and delivered to a place of safety.’Footnote 229 This appears to imply that the assisting ship cannot be a ‘place of safety’. The IMO Guidelines recognize that a rescue vessel at sea may be deemed as ‘a temporary place of safety’,Footnote 230 fulfilling that function ‘until the survivors are disembarked’,Footnote 231 but making clear that ‘an assisting ship should not be considered a place of safety based solely on the fact that the survivors are no longer in immediate danger once aboard the ship’.Footnote 232 This is why many commentators interpret these provisions as requiring that rescuees be taken to landfall.Footnote 233 While a rescue ship may be a provisional place of safety, transfer onto that vessel will not terminate the rescue, which only concludes upon disembarkation.Footnote 234 On this reading, Australia’s enforcement actions against SIEV 885 were unlawful. As such, Australia did not have the authority to exercise interdiction powers until after the rescue operation had come to an end.Footnote 235
Assuming a ship cannot be a place of safety, then, where should the Australian government have taken the rescuees for disembarkation? This is again a vexing issue under international law. There is no clear duty on flag or coastal states to accept disembarkation of rescued persons, but international human rights and refugee law obligations impose limits on the choices available. The Australian territory of Christmas Island would have been the most obvious option, given that it was only 16 NM away from the location of rescue. However, there is nothing in the international SAR regime directly mandating such course of action. The 2004 amendments to the SOLAS and SAR Conventions again provided some clarity, but did not go as far as mandating specific modalities. They do require contracting governments to arrange for ‘disembarkation to be effected as soon as reasonably practicable’ and to do it in a way that ‘does not further endanger the safety of life at sea’.Footnote 236 Australia’s actions in holding the rescuees at sea for 29 days while attempting to disembark them in India are difficult to reconcile with this requirement. One complicating factor is that the waters surrounding Christmas Island in which the rescue of SIEV 885 occurred fall under Indonesia’s SRR. This is significant, as the 2004 amendments assign ‘primary responsibility’ for organising disembarkation to the government responsible for the SRR.Footnote 237 This raises the peculiar situation in which Indonesia was responsible for co-ordinating the disembarkation of rescuees picked up 16 NM from Australia’s shores by Australian government vessels.Footnote 238
International human rights and refugee law provides for additional protections that were relevant to Australia’s treatment of the rescuees aboard SIEV 885 and the disembarkation decision. The non-refoulement obligations contained in the 1951 Refugee Convention and a number of human rights treaties place additional constraints on where rescuees may be taken. These principles have crossed over into the SAR regime, with the IMO Guidelines confirming that asylum seekers rescued at sea should not be disembarked in territories where they may face a well-founded fear of persecution.Footnote 239
Reports indicate that Australia was initially considering returning the rescuees to Sri Lanka. This would have likely breached Australia’s non-refoulement obligations, given the fears articulated by the rescuees about being returned to that country.Footnote 240 The decision to attempt disembarkation in India was also problematic. There is no evidence that any of the rescuees feared direct harm in India. However, that is not in itself enough to absolve Australia of its non-refoulement obligations – including concomitant procedural guarantees. For this to happen, prior to any removal action, the Australian government would have had to be satisfied – through individual procedures meeting fair trial standards conducted by AustraliaFootnote 241 – that the rescuees would be afforded ‘effective protection’ in India. In turn, such ‘effective protection’ requires, in particular, that there be ‘guarantees of protection from refoulement, fair and efficient procedures for the determination of refugee status, and respect for human rights’ in each individual case.Footnote 242 It is unlikely that India can be considered to offer such protection because it has not signed the Refugee Convention, nor does it have any procedures for processing refugee claims. The application of the principle of non-refoulement does not translate to a general right to asylum or entry.Footnote 243 However, in order to comply with the principle, states must have procedures in place to identify persons in need of protection – which must be conducted by the competent authorities under proper conditions (on dry land).Footnote 244 Evidence tendered in relation to the CPCF litigation indicated that Australia failed to provide such procedures.Footnote 245 Rescuees were at no stage provided with any effective opportunity to be heard. While they were asked basic biographical details, they were not asked why they left Sri Lanka or if they feared being returned there or to India.Footnote 246
A human rights focused response from Australia would have precluded prolonged detention at sea. This detention was almost certainly arbitrary, in violation of Article 9 of the ICCPR.Footnote 247 While detention for immigration related purposes is permissible in certain circumstances, it requires an individualized assessment as to whether detention is ‘reasonable, necessary and proportionate’ in every given case.Footnote 248 This must be reassessed as detention extends in time and remains subject to judicial review.Footnote 249 Moreover, in order for detention not to be arbitrary, its duration must be predictable.Footnote 250 Given the open-ended nature of discussions relating to disembarkation, this predictability did not exist. In addition, the conditions of the prolonged detention at sea may also have breached the prohibition of ‘cruel, inhuman or degrading treatment or punishment’ under Article 7 of the ICCPR and the requirement in Article 10(1) that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. As discussed above, the migrants were separated from their families and held in windowless rooms for 21 hours a day for the duration of their 29 days of detention at sea.Footnote 251
Australia’s response to ‘boat migration’ is framed almost exclusively as a matter of national security. The government attempts to justify its actions with reference to its security-related interdiction powers under the law of the sea and corresponding domestic legislation. The treatment of the passengers aboard SIEV 885 illustrates how this framing plays out in practice – 157 men, women, and children detained in unduly harsh conditions at sea for close to a month, while the Australian government deployed all its diplomatic resources in a bid to ensure they would not be brought to Australia. The government’s securitized response sidelines the other international legal regimes that are relevant, such as the SAR regime and international human rights and refugee law. While arguably authorized under its security-related interdiction powers, Australia’s actions were not in sync with its broader obligations under these other regimes. An integrated approach to Australia’s obligations under international law would have necessitated the immediate transfer of the rescuees to the Australian territory of Christmas Island. This was the closest place of safety on land at which disembarkation could bring the rescue to an end. Only then could enforcement powers be exercised. It is noteworthy that the fate of the asylum seekers would have most likely been the same in the end, with them being transferred to Australia’s offshore processing sites in PNG and Nauru – unless such transfers were deemed in breach of non-refoulement, in a procedure conducted after disembarkation. However, the integrated approach would have prevented their extended detention at sea, which was not only arbitrary, but potentially amounted to inhuman treatment and was contrary to the need to respect the inherent dignity of detainees.
5. Conclusion
These two case studies place in sharp relief how different bodies of international law interact and may be brought to bear in particular factual scenarios. Fragmentation of international law is at risk when states select which body of international law applies, or prevails, in responding to individual situations on account (only) of security or other national concerns.Footnote 252 Beyond risks to the normative structure of international law, far more problematic is that selective application of international law results in the commission of internationally wrongful acts,Footnote 253 eroding the good faith foundation of the entire system,Footnote 254 and ultimately translating into a life or death difference for ‘boat migrants’.
In highlighting the humanitarian lens for each of our case studies, we have shown that it does not have to be this way. The normative structures of international law provide answers in reconciling the different legal regimes at stake, including via systemic integration.Footnote 255 Our case studies could have had very different outcomes as a result. In relation to the MV Lifeline, we have shown that Malta should have permitted the entry of the vessel into port. Moreover, in pursuing the criminal prosecution of the captain and seizure of the vessel under the Smuggling Protocol and its national law, the requirements and expectations of the SAR regime have been thoroughly undermined. For the SIEV 885 case, Australian decision-making by both government officials and the Australian High Court effectively prioritized border control over any proper regard for human rights.
The policy imperatives of states like Italy, Malta, and Australia clearly do not favour a humanitarian lens as a response to SAR and ‘boat migration’. Nonetheless, in highlighting the alternative perspectives, we have sought to ensure that there is a path forward to integrate all international law obligations that concurrently apply in the maritime context. This shift in focus is essential for any country committed to a rules-based international order, as both Australia and the European Union (as well as its member states) profess to do.Footnote 256 ‘[T]he special nature of the maritime environment’, as asserted by the European Court of Human Rights, ‘cannot justify an area outside the law where ships’ [captains] crews [and passengers] are covered by no legal system capable of affording them enjoyment of the[ir] rights’.Footnote 257 Italy has recognized, in its case against India under the UNCLOS dispute settlement procedures, that ‘considerations of humanity and international standards of due process apply to the law of the sea’.Footnote 258 So much is true not only for Italian nationals, but for any person facing danger or distress at sea.
