The City Law School’s Professor of Maritime Law, Professor Jason Chuah, considers the applicable legal context.
By Professor of Maritime Law, Professor Jason Chuah, The City Law School
The big news item in the British press on Sep 9th 2021, was about the legality of what the Home Office is proposing – to turn migrant boats away from UK waters. It is obvious that many are looking for simple yes or no answers to the matter of legality and none more so than those who see this as a question of morality or ideology.
The relevant legal context, as should perhaps be expected, is somewhat more complex. There are several international law regimes which might be applicable, there being no international convention dealing specifically with the matter of migrants at sea.
The focus of the media has been the International Convention on Maritime Search and Rescue (SAR) 1979. Broadly speaking the argument against the UK proposal is that the convention obliges signatory states, such as the UK, to co-ordinate the delivery of the survivors to a place of safety. This may involve cooperating with other states – such as France – to allow the survivors to disembark at a place of safety. This duty is well established in customary international law and the Law of the Sea Convention 1982 (art 98(2)). Inter-state cooperation is without a doubt an important plank in the SAR convention (see, for example, Annex to the SAR Convention, paras 2.1.3 to 2.1.7).
Is there a right in international maritime law?
First of all, it should be remembered that the coastal state’s search and rescue duties apply in what the SAR convention terms the search and rescue area. This area can extend miles beyond the state’s territorial sea – a body of water not under the state’s sovereignty. Therefore, although it might sound trite, it is important to remind ourselves that acts done in the area outside the state’s territorial waters cannot be deemed to be equivalent to acts done in its territory, for the purposes of international law.
The SAR convention is not intended to provide for allowing the disembarkation of migrants to the UK; it simply refers to a “place of safety” and it would seem that where the boat is pushed back and returned into the safety onboard the French maritime patrol vessels, it is difficult to contend that the SAR convention had been breached. So, for example, if the UK vessel is unsuited for reception of the migrants whilst the French vessel is safe, returning the migrants to the French supervision would potentially satisfy the SAR convention duties. However, it is equally clear that such circumstances are rare and indeed, what does one do if the French point-blank refuse to take the migrants back? Cooperation therefore could not be omitted from the solution.
In Australia, at one time, the maritime authorities when turning back unsafe migrant boats had provided them with lifeboats to ensure that they are able to leave the Australian search and rescue area safely. In the absence of clear legal authorities on what counts as a “place of safety”, it is difficult to claim absolutely that Australian practice is illegal under the SAR convention.
There are other uncertainties and gaps in the SAR convention.
The duty to rescue depends on whether the boat in question is in a “distress phase”; the word “distress” is not defined but “distress phase” is defined as “a situation wherein there is reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance”. In this sense, where the boat is not in imminent danger and requiring immediate assistance, it could not be said to be the distress phase. It has therefore been suggested at high level meetings that a medical evacuation from a ship (for example a cruise ship) at sea should not qualify as the rescue of someone in distress if the ship has medical assistance aboard. That was certainly an important issue during the early days of the pandemic breakout; some quarters had expressed concerns that cruise ships were relying on free rescue services when they should primarily be responsible for the passenger’s safety at sea.
Imminence of danger, under the SAR convention, depends on a factual analysis – under the convention, there is thus no general presumption that any particular type of vessel would be deemed to be in imminent danger. There is therefore no legal presumption that a migrant boat is necessarily unsafe and places its occupants in imminent danger. That said, many of the vessels used in the channel crossing are clearly unseaworthy but the coastal state has the right to make an assessment of the situation.
Refugee and Human Rights Law
However, international maritime law is not the only relevant law in this regard.
One needs to consider, additionally, international refugee law and European human rights law. In a case against Italy brought before the European Court of Human Rights (Hirsi Jamaa et al. v. Italy), the court ruled that Italy had breached its human rights obligations by rescuing a boat carrying refugees and then returning them to Libya. Although the press reported this case as “pushbacks” being ruled illegal, that is not actually accurate. Technically speaking what Italy did was not to pushback the migrant boat at sea – it was the act of having received the migrants onboard a vessel flying the Italian flag, sending them to Libya which was deemed illegal. Such an act constitutes refoulement under international refugee law. It has been reported of late that migrants leaving Turkey for Greece have claimed that they had landed in Greek territory for a few hours before being rounded up by the Greek authorities and then put back at sea towards Turkish waters. The Greek authorities have consistently refuted those allegations, especially so given the ruling in Hirsi.
On this point, there could be made a strong argument that under international refugee law and European human rights law the state’s legal obligations are not fully engaged until the migrant reaches the territory or vessel under the state’s sovereign powers. Therefore, if the “pushbacks” occur in the search and rescue area but not the territorial waters, these international laws might not be applicable.
Lastly, “pushbacks” are not illegal per se. The Law of the Sea Convention 1982 allows coastal states to take “the necessary steps” to prevent the passage of any vessel that is not innocent. That includes a vessel seeking to unload persons “contrary to the immigration laws and regulations of the coastal State” (art 19(2)(g)). Of course, that provision does not absolve the state from its duties under the SAR convention, limited though the reach of that convention.