A Westminster Hall debate on LGBTQ+ Afghan refugees has been scheduled for Tuesday 21 September 2021 at 4.30pm. The debate will be opened by Kate Osborne MP.
The number of migrants crossing the English Channel has increased in 2021, with the BBC reporting that 12,600 people have made the journey so far this year.
Recent news reports have confirmed that UK Border Force are being trained to use certain “turn around” tactics to intercept and return migrants crossing the Channel.
The Government has said that any plans will be “safe and legal”, but France and other interested parties have suggested such tactics could violate international law.
This Insight examines what international law says about turning back migrants at sea, and if “pushback” tactics can be used safely and legally.
Opposition to turning back migrants at sea
Attempts to return migrants arriving in vessels to their departure point, or the territorial waters they came from, have been used by Australia, Greece and Italy in recent years.
But some experts say the tactics, also known as “pushbacks” violate international law and are unsafe.
In response to the UK Government’s plans, the French Minister of the Interior, Gérald Darmanin tweeted that France would not accept any practices contrary to the law of the sea.
The United Nations High Commissioner for Refugees has reportedly expressed concern over the potential risks involved for those at sea seeking safety, and has previously also criticised similar tactics used by Greece.
Similarly, Felipe González Morales, the UN Special Rapporteur on the Human Rights of Migrants, has criticised the practices in a recent UN Report. The report concluded that pushbacks were becoming widespread and had a serious negative impact on the human rights of migrants.
Law of the Sea: Search and Rescue
The main issue is whether pushback operations place people in danger, or whether they can be conducted in such a way as to not endanger life.
The United Nations Convention on the Law of the Sea creates an obligation to rescue anyone in danger at sea. Article 98 obliges states to require all masters of a ship to help anyone in danger at sea, so long as it does not also cause serious danger to the rescuing ship. It requires vessels to:
- Assist anyone found in danger at sea;
- Proceed to rescue people in distress, if informed of their need for help and if this may reasonably be expected of the vessel;
- Assist and follow procedures in the event of a collision.
These obligations apply to:
- A state’s own waters (the territorial sea);
- any search and rescue region beyond the territorial waters (an area set up by agreements between states to manage search and rescue operations);
- international waters (which can include search and rescue regions).
Commentators who suggest pushback tactics could be incompatible with the UK’s international obligations for search and rescue, say this is because vessels containing migrants in the English Channel have generally been small and vulnerable to danger through pushback tactics.
A letter dated 6 September 2021, sent from French officials to Home Secretary Priti Patel refers to recent developments where people smugglers are now using larger vessels, but it is not clear if and to what extent these would decrease the risks associated with pushback tactics.
The Government has stressed the limited use of pushback techniques, ensuring the safety of any vessels carrying migrants. Reports also suggest they will be limited to larger vessels and in exceptional circumstances.
When are states allowed to refuse passage?
Article 25 of the Convention does allow states to prevent passage in their territorial waters, including to prohibit crime, smuggling, or breaching immigration rules. If such tactics were to put vessels in danger, the obligations for search and rescue still apply.
But any return of a vessel to a state’s territorial waters would require that state’s consent. It’s not clear whether France has consented to the return of vessels to its waters, especially given France’s negative response to the current proposals.
International human rights law
Pushback tactics may be more readily permissible for larger boats and security operations, but the circumstances where they can be used may be limited in the case of asylum-seekers and refugees.
States are responsible for protecting human rights when people come within their jurisdiction or control. This could be when boats reach territorial waters, or when a state rescues or engages with vessels and their passengers. Rights relating to seeking asylum may also apply here too.
In the Dover Strait, where most vessels with migrants travel through, there are no international waters between France and the UK because of how close the states are. Here, as soon as vessels leave French waters, they enter UK waters. Elsewhere, if pushback operations take place in international waters or search and rescue regions, states can still be subject to their international obligations to protect and respect human rights.
Cases in Italy and Greece
The protection of human rights in international waters was confirmed in human rights case law, where Italy’s rescue and return of migrants to Libya brought the passengers within Italy’s human rights protection.
When Greece and Italy used pushback tactics to return boats carrying migrants in the Mediterranean over the past decade, several cases at the European Court of Human Rights were heard. The protection of life, the right to liberty, and the prohibition of inhuman treatment, were considered in this context.
The court considered some of these instances to be incompatible with the law prohibiting ‘collective expulsions’ under Protocol 4 of the European Convention on Human Rights.
Although the UK has not signed up to Protocol 4, the prohibition of ‘collective expulsions’ may also be a general rule of international law. In general, this principle requires that any migrant should have a “genuine and effective” chance to submit arguments against their expulsion, which should be considered appropriately by the state concerned.
The UN Special Rapporteur on the Human Rights of Migrants recently concluded that there should be an individual assessment for each migrant concerned and other procedural safeguards. They warned that the use of pushbacks may undermine the human rights of potential asylum-seekers and refugees.
- Migrants crossing the English Channel, House of Commons Library.
- Article 31 of the Refugee Convention, House of Commons Library.
- Nationality and Borders Bill, House of Commons Library.
- Report on means to address the human rights impact of pushbacks of migrants on land and at sea, Report of the Special Rapporteur on the human rights of migrants, Felipe González Morales, UN Human Rights Council (12 May 2021).
- UK’s Unlawful Cruelty in the English Channel, Human Rights Watch (10 September 2021).
About the author: Patrick Butchard is a Parliamentary Fellow, specialising in international law.
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