I. A TALE OF TWO RESCUES
In 1997, two competitors in the Vendee Globe round-the-world solo yachting race capsized in the Southern Ocean after encountering tumultuous seas and severe gales. The sailors—one a Frenchman (Thierry Dubois), the other an Englishman (Tony Bullimore)—were 2,500 km from Australian shores when they activated their distress beacons. A search and rescue (SAR) operation ensued, involving two ships from the Royal Australian Navy and six aircraft from the Royal Australian Air Force, with hundreds of defence and civilian personnel also pressed into service.Footnote 1 In an operation estimated to have cost over AUD 6 million,Footnote 2 the lone sailors were rescued after four days and brought to safety in Australia.
Contrast this with a situation that arose in the Mediterranean in 2009, when two boats carrying 154 migrants, mainly Sub-Saharan Africans, began to take on water. The MV Pinar, a Turkish cargo vessel passing nearby, was diverted to rescue the survivors, some 76 km from the Italian island of Lampedusa and 211 km from Malta.Footnote 3 However, there was uncertainty as to where the rescuees should be landed. A four-day standoff resulted between Italy and Malta, as each alleged that the other State was responsible for accepting the migrants.Footnote 4 Italy's claim was based on the location of the incident within Malta's SAR zone; while Malta's claim was based on the closer proximity of Italian territory. Against the backdrop of ongoing irregular maritime flows from North Africa to Europe, it was clear that neither country wanted to accept the rescuees. Eventually, Italy relented on humanitarian grounds and permitted the Pinar to make landfall in Sicily, but not before one migrant had died on board the rescue vessel and another had to be airlifted because of a medical emergency.
The differences between these scenarios are stark, but not because they pit a benign Antipodean attitude to those in peril at sea against a malign European one. Indeed, Australia was itself heavily criticized for its own Pinar-like incident when in 2001 it refused to accept 433 asylum seekers rescued by a Norwegian vessel (MV Tampa) in international waters, within Indonesia's SAR zone, but just 140 km from the Australian territory of Christmas Island.Footnote 5
Although the Vendee Globe and Pinar events activate similar international legal obligations, they also highlight practical differences that arise from the number of persons in need of rescue; their nationality and migration status; their likelihood of claiming international protection as refugees; the antecedent history of rescues at sea; and the domestic political consequences of benevolence towards boat migrants. The application of overlapping legal regimes, together with uncertainties in the rights and obligations of affected States and individuals, has created opportunities for disparate responses.Footnote 6 As one author remarked, ‘coastal States are more open to accept those less in need of refuge in the certain knowledge that they can easily be repatriated, whereas those most in need of refuge will be spurned as a potential burden’.Footnote 7
This article examines the shift that has occurred in the European Union (EU) and Australia from a fundamentally humanitarian mission of SAR to a complex, securitized response to boat migration. The result is a situation in which the humanitarian purpose of SAR has become compromised in the name of border security with ensuing consequences. On this basis, Part II examines the core humanitarian dimensions of SAR under international law generally and its operation within the EU and in Australia. Part III introduces the securitization framework and its ramifications for the shift in approaches to SAR in each region. It then analyses the consequences of increasing securitization of SAR in both jurisdictions. These include an increase in militarization, lack of transparency and accountability, developments relating to disembarkation and non-refoulement, criminalization, commodification, and impediments to effective cooperation. The article concludes with some recommendations and suggestions for future research. Throughout the article we use the term ‘boat migrant’ to refer to migrants and asylum seekers voyaging by sea. It is significant to note that the overwhelming majority of those travelling to Europe and Australia, during the time that approaches to SAR were revised, have been found to be refugees.Footnote 8
II. SHIFTING LEGAL REGIMES FOR SEARCH AND RESCUE AT SEA
The international laws that regulate maritime search and rescue are today a large canvas of overlapping treaty regimes. The most important regimes, chronologically, are the International Convention for the Safety of Life at Sea 1974 (SOLAS Convention),Footnote 9 the International Convention on Maritime Search and Rescue 1979 (SAR Convention),Footnote 10 and the United Nations Convention on the Law of the Sea 1982 (UNCLOS).Footnote 11 Each has garnered substantial acceptance by the international community—the SOLAS Convention presently has 162 parties; the SAR Convention has 107 parties; and UNCLOS has 168 parties.Footnote 12 Australia is party to all three conventions. The EU and all its Member States are party to UNCLOS and are thus respectively responsible for matters over which each has competence under EU law—which excludes SAR in relation to the Union, as further discussed below.Footnote 13 All EU Member States have ratified the SOLAS Convention, and all but three Member States are party to the SAR Convention.Footnote 14 Gaps in the universal coverage of the conventions still leave scope for the operation of customary international law,Footnote 15 which also recognizes a legal obligation to rescue a person in distress at sea.Footnote 16
The Mediterranean has long been the locus for SAR activities in Europe, although the crisis is more widespread.Footnote 17 In 2015, the number of arrivals peaked, with more than a million persons reaching the EU by sea, and nearly 4,000 perishing en route. While the number of arrivals dropped to just over 356,000 the following year, the rate of dead and missing increased to more than 5,000.Footnote 18 This is a significant proportion of the 7,763 total migrant deaths worldwide for the same period.Footnote 19 It is only since the implementation of the so-called EU-Turkey ‘deal’ of March 2016 that the Aegean route has been sealed.Footnote 20 Cooperation with the Libyan Coast Guard thereafter,Footnote 21 combining SAR with anti-smuggling operations,Footnote 22 has also translated in reduced crossings through the Central Mediterranean.Footnote 23
Australia's experience of boat migration is modest when compared to Europe. A little over 60,000 people have arrived in Australia by boat without authorization since 2000.Footnote 24 The number of arrivals peaked in 2013 at 20,587.Footnote 25 The subsequent introduction of a suite of restrictive border control measures has reduced the number to close to zero.Footnote 26 A small number of vessels continue to attempt the journey to Australia but are intercepted and deflected at sea, either to their point of departure, or to one of Australia's offshore regional processing facilities in Nauru or Papua New Guinea (‘PNG’).Footnote 27 Estimating the number of migrants who have died at sea while attempting to make the journey to Australia is a contentious issue, with claims that the government at times may have inflated the numbers in order to justify its harsh deterrence policies.Footnote 28 There is no doubting, however, that there has been significant loss of life at sea, with one independent monitoring body estimating just over 1,900 deaths since January 2000.Footnote 29
Although European States and Australia are bound by key international legal obligations associated with SAR, their respective experiences with boat migrants have triggered responses intended to enhance their border security. This Part highlights the central obligations associated with SAR but indicates a shift in State practice in the interpretation and application of these international norms. The first section sets out the humanitarian purpose underpinning the international legal regime in place for SAR, which binds EU Member States and Australia. It then assesses the European approach to SAR, noting the increasing role played by the EU via its external frontiers agency, the European Border and Coastguard (‘the EU Coastguard’, also known as ‘Frontex’), in border management.Footnote 30 The third section assesses the Australian approach to SAR, which demonstrates a conflation of humanitarian norms of SAR with border security imperatives.
A. Humanitarian Dimensions of the International Legal Regime for SAR
The foundations of SAR may be seen in early Judeo-Christian writings,Footnote 31 and were expounded by the earliest scholars of international law.Footnote 32 The current manifestation of this humanitarian obligation is the legal requirement enshrined in Article 98(1) of UNCLOS. This Article provides that every State shall require the master of a ship flying its flag to (a) assist any person found at sea in danger of being lost, and (b) proceed with all possible speed to the rescue of persons in distress. By its terms, the obligation falls on the flag State to require a master, through domestic legislation, to take action in specific circumstances. In practice, the obligation is discharged by individuals (masters) who may have to interrupt their commercial voyages to attend to those in need. The beneficiaries of the obligation are persons in ‘danger’ or ‘distress’; and the nature of the obligation is to ‘render assistance’ and ‘rescue’. However, the absence of definitions of these terms has left room for disputation, particularly as to when a rescue operation is required and when it is completed.Footnote 33 The obligations are not absolute: a master is not required to seriously endanger his ship, crew or passengers; nor to do more than may ‘reasonably be expected’.
In addition to the obligations that fall on flag States, coastal States have obligations that extend beyond the mere making of laws. By Article 98(2), coastal States must promote the establishment, operation and maintenance of ‘an adequate and effective search and rescue service’ regarding safety at sea, and must cooperate with neighbouring States where required.Footnote 34 Under the SAR Convention, States are required to participate in the development of SAR services ‘to ensure that assistance is rendered to any person in distress at sea’, and they must also establish SAR regions by agreement with other States.Footnote 35 Pursuant to this obligation, the world's oceans have been divided into multiple SAR regions, with responsibility assigned to proximate coastal States. Australia, for example, has a SAR region of some 53,000,000 km2, covering one-tenth of the world's surface, and bordering the SAR regions of ten other countries.Footnote 36 In Europe, coastal States at both sides of the Mediterranean cover the entirety of the sea's extension—except for the waters close to Libya, which has never officially declared a SAR zone or deposited information about its SAR services with the International Maritime Organization (IMO).Footnote 37
Under the SOLAS Convention, a State party is required to regulate the activities of all ships flying its flag regardless of where they sail,Footnote 38 and to provide for the rescue of persons in distress at sea ‘around its coasts’, without limit as to distance or maritime zone.Footnote 39 Yet despite this apparent breadth, there are long-standing gaps in treaty law that give ‘some leeway for political expediency’.Footnote 40 Notably, the Annex to the 1974 SOLAS Convention, as originally concluded, imposed an obligation on a master of a ship ‘to proceed with all speed to the assistance of … persons in distress’.Footnote 41 The beneficiaries of the obligation are persons in ‘distress’ (not danger) on a ship or survival craft, and the obligation is limited to giving assistance (not rescue). Like Article 98(a) of UNCLOS, the obligation is not absolute: a master's obligation arises only upon receiving a distress signal, and does not extend to giving assistance considered to be unreasonable or unnecessary.Footnote 42
A key obligation in place under the SAR Convention since its inception in 1979 is that States must ensure that assistance is provided to any person in distress at sea ‘regardless of the nationality status of such a person or the circumstances in which that person is found’.Footnote 43 The 1998 revisions to the SAR Convention also contain definitions of ‘search’ and ‘rescue’.Footnote 44 ‘Search’ is an operation to locate persons in distress, and ‘rescue’ is an operation ‘to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety’. A ‘place of safety’, however, is not defined, and it is clear from other provisions that disembarkation lies in the discretion of the coastal State.Footnote 45
Concerns about the definition of distress as well as ambiguity about when rescue is completed prompted a dialogue between States and international organizations to provide greater certainty for stakeholders.Footnote 46 In 2004, the IMO issued Guidelines on the Treatment of Persons Rescued at Sea (IMO Guidelines)Footnote 47 and amended the SOLAS Convention, with operative effect from 2006.Footnote 48 The treaty amendments clarify the master's duty to provide assistance to persons in distress. That duty is now expressed to apply ‘regardless of the nationality or status of such persons or the circumstances in which they are found’, and requires the master to treat rescuees ‘with humanity, within the capabilities and limitations of the ship’. Additional amendments address the issue of disembarkation, somewhat elliptically. State parties are now obliged to cooperate to ensure that masters are relieved of their obligations to assist ‘with minimum further deviation from the ship's intended voyage’. The State responsible for search and rescue in that region is given ‘primary responsibility’ to ensure that assisted survivors are disembarked and delivered to a place of safety, taking into account the particular circumstances of the case.Footnote 49 Some commentators have argued that the State coordinating the search and rescue has a residual obligation to allow disembarkation on its territory, if safe disembarkation elsewhere is not possible, but the issue is contentious.Footnote 50
The Guidelines provide direction as to what ‘a place of safety’ is, but in terms that are themselves imprecise.Footnote 51 A place of safety is 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. At first blush, this sounds like a location on land, but the Guidelines recognize that, at least ad interim, it may also be a location at sea, such as a rescue vessel, until the survivors are disembarked to their next destination. Yet the Guidelines also state 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 52 Significantly, the Guidelines also stipulate that asylum seekers rescued at sea should not be disembarked in territories where they may face a well-founded fear of persecution.Footnote 53 While the purport of these legal obligations is clear, there is sufficient obfuscation in the terms to allow for varied implementation by States.
B. European Approach to ‘Incidental SAR’ and its Subsumption in Border Control
The international SAR framework applies fully to EU Member States, which retain distinct responsibility for rescue at sea. Only Malta objected to the latest SAR revisions at the IMO—with that, however, not precluding the entry into force of the amendments.Footnote 54 And the humanitarian dimension of SAR and its intertwining with human rights obligations has, moreover, been forcefully recognized by the European Court of Human Rights in its Hirsi judgment.Footnote 55
Yet, even with these core obligations falling on individual Member States, the EU has moved to a central position in managing SAR, because of the perceived implications for border security.Footnote 56 Border control and SAR activity have (operationally) merged, with the former gaining (practical) pre-eminence over the latter—in line with the allocation of powers in the EU Treaties.Footnote 57 Indeed, ‘maritime search and rescue and disembarkation are the competence of the Member States [not Frontex or the EU]’.Footnote 58 The main function of the EU Coastguard is to coordinate operational cooperation between the Member States so as to reinforce the monitoring of the common external frontiers,Footnote 59 with ‘saving the lives of migrants’ arising as a desirable by-product of maritime intervention.Footnote 60
SAR has been demoted to a second plane also due to the division of labour regarding the launching and running of joint operations. Although the EU Coastguard is supposedly just a facilitator of operational cooperation, it plays a leading role in initiating and approving joint activities, and in their planning, deployment, and strategic evaluation. This blurs the lines of responsibility between it and the Member States and creates uncertainty regarding attribution of conduct that may violate human rights.Footnote 61 Their mandates are increasingly intermingled—although Member States remain ‘in principle’ responsible for carrying out border controls (and are exclusively competent to exercise force), the EU Coastguard enables efficient controls on the ground through intelligence provision, tactical coordination, and operational funding. A co-dependency emerges between the EU Coastguard and the Member States, with the former translating the ambitions of the latter into operational detail—the whole focus thus remaining on border security, rather than on SAR at sea.
Joint missions may be launched at the request of a Member State, evaluated and ‘approved’ by the EU Coastguard.Footnote 62 Article 15(4) of the Coastguard Regulation speaks of its faculty to ‘recommend’ to Member States the launch of joint operations or rapid border interventions.Footnote 63 But in relation to maritime operations, it appears that search and rescue per se cannot constitute the overarching objective of a joint mission. Although ‘some situations may involve humanitarian emergencies and rescue at sea’,Footnote 64 border surveillance remains the primary goal.Footnote 65 This follows ‘[t]he objective of Union policy in the field’. While operations may contribute ‘to ensuring the protection and saving of lives’, their ultimate aspiration remains ‘to prevent unauthorised border crossings, to counter cross-border criminality and to apprehend …those persons who have crossed the border in an irregular manner’.Footnote 66 This does not mean the Member States and the EU Coastguard free themselves of their SAR and human rights obligations,Footnote 67 but it requires that surveillance ‘be effective in preventing and discouraging persons from circumventing checks at border crossing points’.Footnote 68 The bias is thus towards control and security, not SAR.Footnote 69
It therefore appears that it will only be ‘[d]uring a border surveillance operation at sea’ that ‘a situation may occur where it will be necessary to render assistance to persons found in distress’Footnote 70 —SAR is thus framed as incidental to the patrolling mission. With that in mind, operational plans must contemplate a series of additional details, ‘in accordance with the applicable provisions of international instruments, governing [SAR] situations and … the protection of [human] rights’.Footnote 71 These include rules on the identification and communication of cases of uncertainty, alert and distress; modalities of disembarkation; and the contact details of national authorities competent to adopt adequate follow-up measures.Footnote 72
In case persons are found to be in distress, Member States (not the EU Coastguard) ‘shall observe their obligation to render assistance’ and ‘ensure that their participating units comply with that obligation’.Footnote 73 The EU Coastguard is not directly responsible for guaranteeing compliance with SAR obligations, but only to support EU norms by reinforcing, assessing, and coordinating the actions of Member States.
The 2014 Maritime Surveillance Regulation (MSR) provides, nonetheless, some guidance regarding SAR. In line with international obligations, it makes explicit that the nationality, status or circumstances in which the persons are found are irrelevant. Moreover, the existence of an explicit request for assistance is considered unnecessary.Footnote 74 Other factors must also be taken into account for the determination of a SAR-relevant situation, including the seaworthiness of the vessel, the number and medical condition of persons on board, the availability of water, fuel and food supplies, the absence of qualified crew and equipment, as well as the weather and sea conditions.Footnote 75 The presence of pregnant women, minors, and asylum seekers may be decisive, as the special needs of vulnerable persons must be ‘addressed’ throughout the operation.Footnote 76 In such circumstances, participating units must transmit all the relevant details to the SAR Centre responsible for the SAR zone concerned and put themselves at its disposal.Footnote 77 Pending instructions, they must take all the necessary safety measures, avoiding any action ‘that might aggravate the situation or increase the chances of injury or loss of life’, even if the persons on board refuse to accept assistance.Footnote 78 So, at the end of the day, EU law adds an extra layer of specification to the definition of ‘distress’ on top of the 2004 IMO amendments, complementing the international regime—if only in this incidental manner that subordinates the relevance of SAR to border security operations, arguably in disconformity with the humanitarian spirit of maritime conventions and ‘elementary considerations of humanity’ in customary law.Footnote 79
Triton offers a key example of one recent Frontex/EU Coastguard-coordinated operation in the Mediterranean following this pattern of relegated SAR action.Footnote 80 It was launched as a replacement to the Italian (humanitarian/military) Mare Nostrum operation, which rescued more than 130,000 persons between October 2013 and October 2014,Footnote 81 but with a much less ambitious remit.Footnote 82 While Mare Nostrum had a proactive SAR componentFootnote 83 —and was partly discontinued precisely because of its perceived ‘magnet’ effect on boat arrivalsFootnote 84 —for Triton, ‘the focus … is primarily border management’.Footnote 85 As the European Commission confirmed, ‘Frontex is neither a search and rescue body nor does it take up the functions of a Rescue Coordination Centre’.Footnote 86 Its role is merely to ‘assist Member States to fulfil their obligations under international maritime law to render assistance to persons in distress’.Footnote 87 As such, it was in fact considered that Triton would ‘not replace or substitute Italian obligations’,Footnote 88 even if Mare Nostrum had been dismantled.
In May 2015, the revised operational plan of what has become Triton Plus was put forward to help Frontex ‘fulfil its dual role of coordinating operational border support to Member States under pressure, and helping to save the lives of migrants at sea’.Footnote 89 Yet, Frontex's Executive Director has insisted that saving migrants’ lives ‘shouldn't be’ the priority for patrols because this lies beyond the Agency's legal mandate.Footnote 90 The framing of SAR as an incident of frontier control is thus confirmed in the EU's current approach to boat migration across the Mediterranean, distilling a securitized understanding thereof, with the foremost concern being border management rather than the protection of life at sea.
C. Offshore Australia: Increasing Conflation of SAR with Border Security
The Australian government has been even bolder in its attempts at subsuming SAR under border control operations. In fact, there appears to have been a deliberate attempt to conflate the two, in order to expand the government's power to intercept, board and divert asylum seekers and migrants attempting to reach Australia by sea—challenging the applicable law of the sea rules on jurisdictional zones delimiting interdiction powers,Footnote 91 and human rights law. While, on paper, the rules governing SAR activities are distinct to those that govern security-related interdiction activities, in practice, the line between the two regimes is purposely distorted.
The Rescue Coordination Centre, within the Australian Maritime Safety Authority (AMSA),Footnote 92 is the agency designated with the task of coordinating Australia's SAR operations. The rules governing how SAR is to be planned and carried out are promulgated in the National Search and Rescue Manual.Footnote 93 While the document contains extensive detail in relation to SAR procedures and techniques, it makes no specific reference to the meaning of a ‘place of safety’ or selecting a point of disembarkation (let alone in conformity with non-refoulement). There is some guidance in relation to the standard for ‘distress’, which is said to occur when a vessel requires ‘immediate assistance’ resulting from ‘grave or imminent danger’Footnote 94 ––so, presumably, unseaworthiness alone, which is the typical characteristic of boat migrant vessels, will not per se trigger a SAR response on the part of Australia.
Security and border control related maritime interdiction activities are coordinated by Australia's Maritime Border Command (MBC).Footnote 95 The government's maritime enforcement powers are set out in the Maritime Powers Act 2013 (Cth) (‘MPA’). Where a vessel is suspected of violating any Australian law, including immigration laws, the Act authorizes the use of certain interdiction powers. These include boarding, obtaining information, searching, detaining, seizing and retaining things; and moving and detaining persons.Footnote 96 The Act also makes it clear that authorization from a statutory officer for the exercise of maritime powers is not required where the exercise is to ensure the safety of the officers or any other person.Footnote 97 At times, the Australian Government has also claimed that maritime interdiction operations are authorized under its non-statutory executive (or prerogative) power.Footnote 98
By comparison to the EU experience, there are no publicly available rules of engagement, regulations, or protocols in relation to Australia's maritime enforcement activities. The only relevant publicly available resource is the Guide to Australian Maritime Security Arrangements (GAMSA).Footnote 99 This document sets out stakeholder roles in relation to eight civil maritime security threats, one of which is irregular maritime arrivals.
In practice, it can be very difficult to distinguish which powers the government purports to be exercising when it intercepts and diverts irregular migrant vessels. Under current arrangements, AMSA's Rescue Coordination Centre is the first point of contact for both maritime safety and maritime security incidents. Where the incident is of a security nature, the Rescue Coordination Centre informs the MBC, which then assumes responsibility for providing the response. The MBC coordinates interdiction activities using Australian Defence Force (ADF) or Australian Border Force (ABF) vessels.Footnote 100 In cases of SAR, the Rescue Coordination Centre coordinates vessels to carry out the rescue. These vessels could be commercial ships or vessels operated by any Commonwealth or State or territory agency. Given the fact that the ADF and ABF vessels are stationed in the regions most affected by boat migration, it is often one of these vessels that are deployed to carry out the SAR operation.Footnote 101 It is also important to note that an operation that starts out as an interdiction could transform into a SAR operation and vice versa, with authority for coordination switching between AMSA and the MBC accordingly.Footnote 102
The functions of SAR and maritime interdiction have been further conflated as a result of Operation Sovereign Borders, launched in late 2013. The military-led initiative has the goal of stopping boats suspected of carrying irregular migrants from entering Australian territory.Footnote 103 This is achieved by physically intercepting and deflecting their vessels. The entire operation is shrouded in secrecy, with the government adopting a policy of not commenting on ‘operational matters’ for security reasons.Footnote 104 Given this secrecy, there is little information about how and where interdiction and push-back operations occur and whether the government purports to be acting under its SAR or interdiction powers.
The result is that it is difficult to assess whether Australia complies with its obligations under international law or, rather, whether it exploits SAR provisions to expand its interdiction authority beyond allocated jurisdictional zones. The final outcome—by contrast to the ‘relegated’ or ‘incidental SAR’ paradigm reigning in Europe—is a ‘conflated SAR’ model that confuses rescue at sea with border security objectives.
III. THE EXPLANATORY PARADIGM: SECURITIZATION
Although the international SAR regime has its own distinct requirements, processes, and institutions, the increasing linkage between this regime and migration control has begun to infuse SAR with similar characterizations and responses to those seen in relation to irregular migration and its portrayal as ‘a threat’.Footnote 105 The basis for the shifting approach, away from the core focus of humanitarian assistance, is the use of a ‘securitization frame’, which assists in understanding why States take certain actions in response to boat migration.Footnote 106 Securitization is the process whereby actors with sufficient authority identify existential threats to the State, society, or other particular object, and seek to implement extraordinary measures in response to the putative threat.Footnote 107
The arrival of boat migrants is considered to be a threat to the destination State in this scenario.Footnote 108 The threat might be cast as a result of the unknown background of the individuals, who may be perceived to be existing or potential criminals or terrorists.Footnote 109 But the threat may be perceived more broadly as somehow jeopardizing the existing lifestyles, economy or cultures of the destination State.Footnote 110 The confluence (or subordination) of SAR with (or to) migration control results in boat migrants constituting a threat, irrespective of whether they were rescued from a situation of distress or have otherwise entered a country without authorization.
Within the securitization frame, the actors who characterize the threat must have authority to speak about security and an audience that is receptive to how that threat is constructed.Footnote 111 In Australia, one of the main political parties came to power in 2013 with a platform that included the mantra of ‘stop the boats’.Footnote 112 In the EU, the European Coastguard was created with a mission ‘to integrate national border security systems of Member States against all kinds of threats that could happen at or through the external border of the Member States’.Footnote 113 As indicated above in relation to EU practice, boat migration has been one of the threats identified as requiring a border security response.
In implementing responses to a threat, a securitization frame may allow for drastic or atypical responses that prioritize ameliorating the security concerns. One example is seen in UN Security Council Resolution 2240 (2015), in which the Security Council authorizes inspection of vessels on the high seas off the coast of Libya that are reasonably suspected of migrant smuggling or human trafficking.Footnote 114 In making this decision,Footnote 115 the Security Council acted under Chapter VII of the UN Charter, which concerns threats to the peace, breaches of the peace, and acts of aggression.Footnote 116 Despite the fact that a large number of deaths occurring during sea voyages across the Mediterranean have been attributed to unseaworthiness of the vessels, and hence might attract a response under the SAR regime, the Resolution focuses on the securitized perspective of people smuggling and human trafficking. The only mention of SAR is in the preambular paragraphs, where the Security Council recalls the existence of the SAR Convention, but, then again, frames loss of life at sea as a ‘threat to international peace and security’.
The increasing conflation of SAR with migration control (as in Australia), or the subordination of the SAR regime to migration control rules and processes (as in the EU), is highly problematic. The securitization of SAR runs the risk of setting a crisis tone and prompting short-term responses that emphasize State security.Footnote 117 As discussed further below, the practice of the EU and Australia presents compelling examples of securitizing SAR in the context of boat migration, which has distorted the primary humanitarian object of the regime. In both settings, although there is rhetoric in relation to saving lives at sea, the commitment to human rights obligations is lacking in reality, once effective control is being exercised over boat migrants.Footnote 118 Instead, legal frameworks, government institutions, and actual practices indicate an emphasis on border control and hence national security that overshadows—if not altogether sidelines—SAR in the context of boat migration.
Against this background, this Part explores the commonalities that exist between European and Australian experiences and the consequences of securitization. Specifically, it addresses the increasing militarization in SAR responses, the difficulties arising from differing interpretations of relevant legal terms, the lack of transparency and accountability, which compound the first two trends, the moves towards criminalizing humanitarian assistance, and the impediments to effective cooperation around SAR.
The response to boat migration in both the EU and Australia is now marked by a trend towards increasing militarization of on-water responses to migrant vessels. Australia's Operation Sovereign Borders is a military-led initiative that operates under the command of an Army General.Footnote 119 The Maritime Border Command tasked with coordinating maritime interdiction activities, while technically a civil maritime security authority, is commanded by a Rear Admiral seconded from Defence, who is responsible for coordinating assets and personnel from both the Australian Border Force (ABF) and Australian Defence Force (ADF). The ADF's contribution to Operation Sovereign Borders is codenamed Operation RESOLUTE.Footnote 120 It involves the deployment of up to 800 ADF personnel at sea, in the air and on land, who work alongside personnel from the ABF.Footnote 121 Resources allocated to the operation include Air Force AP-3C Orion maritime patrol aircraft, Navy Armidale Class Patrol Boats, and two Navy Major Fleet Units.Footnote 122
In July 2017, the Department of Immigration and Border Protection confirmed that Australia had intercepted and turned back 30 boats carrying a total of 765 asylum seekers since the commencement of Operation Sovereign Borders.Footnote 123 Details about individual operations were not provided. Media reports indicate that the majority of these incidents involved interdicting Indonesian vessels carrying boat migrants and returning them to the edge of Indonesian territorial waters, although more recent incidents have included turn-backs to Vietnam and Sri Lanka, rising high risks of refoulement.Footnote 124 The precise locations of the interdictions are unclear. Some boat migrants have been towed back in their original vessels, while others have been transferred to custom-built orange lifeboats stocked with food, water, and medical supplies.Footnote 125 It appears that the orange lifeboats have now been replaced by a fleet of Vietnamese-built wooden vessels resembling Asian fishing boats.Footnote 126
The response in Europe has been similarly militarized—and heedless of non-refoulement and other human rights obligations. The European Council's Ten-Point Action Plan, adopted to implement the European Agenda on Migration at the outbreak of the ‘migration crisis’ in 2015, proposed the establishment of an EU-led naval force operation (EUNAVFOR) to operate in parallel to Frontex-led activities.Footnote 127 This was not intended to buttress SAR but rather ‘to better contain [sic] the growing flows of illegal migration’.Footnote 128
EUNAVFOR Med was launched shortly afterwards.Footnote 129 The EU Commissioner for Home Affairs described the ultimate goal of the operation as the ‘war on smugglers’.Footnote 130 Several operational phases have been distinguished: the first for surveillance and assessment; the second for the search and seizure of migrant boats, including for the ‘disposal of vessels … preferably before use’ and the apprehension of smugglers on high seas; a third phase taking place within Libyan jurisdiction; and a final phase for completion and handing over of responsibilities to the Libyan Coastguard, once sufficient progress will have been achieved.
The start-up phase, Operation Sophia, was launched in June 2015.Footnote 131 Yet, to launch phases 2 and 3, it was acknowledged that the EU lacked jurisdiction, as these entailed extraterritorial recourse to military force.Footnote 132 Consequently, diplomatic representations were made at the bilateral level to persuade Libya and Tunisia, and at UN level to obtain the authorization of the Security Council.Footnote 133 The latter resulted in UNSC Resolution 2240, on 9 October 2015, authorizing Member States ‘to use all measures commensurate to the specific circumstances’ to ‘inspect’, ‘seize’, and possibly ‘dispose of’ migrant vessels (including inflatable boats, rafts, and dinghies), so as to ‘disrupt the organised criminal enterprises engaged in migrant smuggling and human trafficking’, but only with respect to ‘the situation of smuggling and trafficking on the high seas off the coast of Libya’.Footnote 134
The fears expressed by the EU Defence Chiefs, when consulted on the design of the operation in documents filtered to the press by Wikileaks, are worth noting. They anticipated that EUNAVFOR Med was doomed to fail, and that it would further destabilize the region and divert migration to alternative (more dangerous) routes, thus paradoxically intensifying smuggling and trafficking activity.Footnote 135 The clear evidence of spiralling fatality rates in the Mediterranean points, precisely, to the inadequacy of replacing SAR operations with law-enforcement or military missions unfit for purpose.Footnote 136
Nonetheless, EUNAVFOR Med's mandate has been extended and expanded to help implement an arms embargo on Libya and train the Libyan Navy and Coastguard,Footnote 137 so that they can ‘decrease irregular migration from Libya’.Footnote 138 The long-term aim of this approach is to create a functioning Libyan capacity to prevent migrants from leaving the countryFootnote 139 —ignoring the rights to leave and to asylum recognized in international and EU law.Footnote 140 Crucially, this implies that ‘[i]f migrant boats intercepted in Libyan waters by Libyan vessels are taken back to Libyan shores … the EU non-refoulement obligations would not be triggered’ (at least not directly or immediately).Footnote 141 The goal is for pre-emptive take-backs to ultimately replace SAR,Footnote 142 shifting the responsibility for refugee and migrant flows to Libya.Footnote 143
There is a similar approach adopted in the Aegean, where NATO launched an operation similar to EUNAVFOR Med in February 2016 along Turkish shores. Just like the Frontex missions and Operation Sophia, its goal is ‘to [contribute to] the international efforts to stem the illegal trafficking and illegal migration in the Aegean’, in the words of NATO Secretary General.Footnote 144 The operation is formally only ‘tasked to conduct reconnaissance, monitoring and surveillance of illegal crossings in the Aegean’.Footnote 145 It does not have a SAR or border control competence. However, when encountered with distress situations, it has been agreed that assets will proceed to the rescue of those concerned, returning them directly to TurkeyFootnote 146 —whatever the impact on fundamental freedoms. The conclusion of the EU–Turkey deal in March 2016, whereby Turkey must impede boat migrants’ exit and accept the readmission of all those arriving irregularly on EU soil in exchange for financial and other support, facilitates this course.Footnote 147 Returns to Turkey, through disembarkations performed upon rescue or interdiction by NATO assets, are being conducted in disregard of non-refoulement,Footnote 148 which should determine the choice of ‘place of safety’, according to IMO Guidelines and human rights law, as further detailed below.Footnote 149 The full implications of SAR obligations are being discounted, if not instrumentalized for security purposes.
The situation has apparently been ‘normalised’ after the launch of Operation Sea Guardian in November 2016,Footnote 150 and the EU–NATO Warsaw Declaration,Footnote 151 where Member States seem to have endorsed NATO's perspective and decided to join efforts. NATO warships are thus now helping the EU's cause to stem the flow of mostly Syrian asylum seekers across the Eastern Mediterranean. According to the Greek Defence Minister, ‘[t]he prevention of refugee flows [sic] with NATO ships will continue as long as there are prospective illegal migrants or refugees [sic] on the other side of the Aegean’.Footnote 152 And so, arguably, with NATO's involvement in migration control, ‘a dangerous shift toward militarization of a humanitarian crisis’ has been consolidated in the Mediterranean Sea.Footnote 153
B. Disembarkation, ‘Place of Safety’, and Non-Refoulement
One of the key issues that arises during SAR activities involving boat migrants is the selection of an appropriate location where rescuees can be disembarked. This issue was partially addressed in the 2004 SOLAS amendments and associated IMO Guidelines, but significant ambiguities remain.Footnote 154
The EU has sought to tackle this in the 2014 Maritime Surveillance Regulation (MSR) by articulating modalities for disembarkation following the rescue or interception of vessels in the context of Frontex-coordinated operations. These must be agreed in advance and inserted in the operational plan of the relevant deployment. As a rule, where interdiction occurs in the territorial waters or contiguous zone, disembarkation should normally take place in the coastal Member State.Footnote 155 But, if rescue or interception occurs on the high seas, the preferred place of disembarkation is ‘in the third country from which the vessel is assumed to have departed’.Footnote 156 Where disembarkation follows a SAR incident, it is for the relevant Rescue Coordination Centre to identify an appropriate ‘place of safety’—excluding ports in non-participating Member States, unless they consent.Footnote 157
The MSR—based on the IMO Guidelines but codifying them into hard law for EU law purposes—provides that a ‘place of safety’ shall be a ‘location where rescue operations are considered to terminate and where the survivors’ safety of life is not threatened’; a place ‘where their basic human needs can be met’. Moreover, in accordance with human rights principles, it shall also be a location where protection and compliance with the principle of non-refoulement is guaranteed.Footnote 158 Unlike the duty to rescue, non-refoulement ‘shall apply to all measures taken by Member States or the Agency’, making the EU Coastguard explicitly bound by attendant obligations.Footnote 159
As a result, the MSR contemplates that interdicted or rescued persons cannot be ‘disembarked in’, nor can they be ‘forced to enter, conducted to or otherwise handed over to the authorities of’, a country where there are serious risks of being subjected to persecution or inhuman or degrading treatment or punishment, whether directly or by onward removal to another country.Footnote 160 Therefore, when considering disembarkation in a third country, the prevailing situation there must be taken into account. Information derived from a wide range of sources is essential. It is, however, unclear what the significance of ‘the existence of agreements and projects on migration and asylum carried out in accordance with Union law and through Union funds’ may be in this assessment, but it is one of the factors contemplated in the MSR.Footnote 161 Also, although the identification and assessment of personal identity and circumstances have to be undertaken before removal, and persons concerned informed of their destination so they can oppose it on refoulement grounds, there is no provision for procedural safeguards, remedies, or judicial oversight to guarantee compliance with the principle in practice.Footnote 162 This contravenes human rights standards, as per Hirsi and related case law.Footnote 163
As advanced as the MSR provisions may be in certain respects, particularly as they represent a regional arrangement followed by 28 Member States, they suffer from an additional key limitation. They apply only to EU Coastguard-coordinated operations and thus leave untouched any arrangements regarding unilateral action or collaborative conduct undertaken outside the Frontex framework. Arguably, these exclusions encompass the EUNAVFOR Med Operation Sophia and actions taken under the auspices of NATO, leaving an important gap in effective protection, considering developments on the ground—including non-assistance and abandonment at seaFootnote 164 —and the fact that it remains disputed whether EU non-refoulement provisions have an extraterritorial reach beyond Member States’ domain.Footnote 165
There is currently no comparable regional agreement between Australia and its neighbours on the issue of disembarkation. As the MV Pinar and MV Tampa incidents demonstrate (see Part I), governments may be reluctant to permit the disembarkation of rescued asylum seekers into their territory and may attempt to deflect responsibility to other jurisdictions. This can create uncertainty and discourage commercial vessels from participating in SAR activities. It also prevents Australian Government vessels from carrying out SAR in Indonesian waters, as it could result in Australia having to assume responsibility for disembarkation. The importance of dealing with the disembarkation issue in the Asia-Pacific region was raised at the Sixth Ministerial Conference of the Bali Process on People Smuggling, Trafficking in Persons and related Transnational Crime held in March 2016. The Ministerial Declaration adopted at the conference recognizes the importance of coordinating procedures for rescue at sea and calls on participating governments to ‘work to identify more predictable disembarkation options’.Footnote 166 But, to date, there have been no concrete proposals.
Australia has also had cause to contemplate disembarkation at a ‘place of safety’ and the extent to which this duty is affected by considerations of non-refoulement. Regardless of whether the purported basis of an interception is SAR or security-related maritime interdiction, under Australian law, once a vessel is under the control of Australian authorities, the Australian Government has a responsibility to deliver the rescuees to a ‘place of safety’.Footnote 167 Recent actions by Australian authorities appear to flout this requirement. While the lack of transparency around push-back operations (elaborated upon in the next section) makes a definitive assessment difficult, it is hard to conceive how leaving migrant vessels on the edge of Indonesian territorial waters could be viewed as delivery to a ‘place of safety’.Footnote 168 This is regardless of whether they are aboard their original vessel or have been transferred to lifeboats or other vessels provided by the Australian authorities. In both instances, the migrants are left to navigate a potentially perilous sea voyage on their own. Similar actions under Operation Relex, providing a point of comparison, reportedly resulted in loss of life.Footnote 169
These actions have been possible because of the lack of a clear definition of ‘a place of safety’ in Australian law. Neither the National Search and Rescue Manual or the Maritime Powers Act refer to the specific circumstances of asylum seekers and the need to protect against refoulement. In fact, following the passage of Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (‘Legacy Caseload Act)’, consideration of such factors is explicitly prohibited in certain contexts.Footnote 170 The amendments stipulate that when exercising maritime powers, an authorizing officer is not required to consider Australia's international obligations or the international obligations or domestic law of another country.Footnote 171 Additionally, the amendments stipulate that authorization of maritime powers under the Act is not invalid even if inconsistent with Australia's international obligations.Footnote 172 As such, there are no clear legal safeguards in place to ensure that Australia does not breach its non-refoulement obligations by returning a person to a place where they face persecution contrary to the Refugee Convention, or to a situation where they are in danger of death, torture, or other unlawful mistreatment.Footnote 173
However, these amendments do not necessarily preclude an expansive interpretation of a ‘place of safety’ under the Maritime Powers Act (‘MPA’). The Legacy Caseload Act did not remove the requirement that a ‘maritime officer must not place … a person in a place, unless the officer is satisfied, on reasonable grounds, that it is safe for the person to be in that place’.Footnote 174 The breadth of this requirement was addressed by a number of the justices of the Australian High Court in CPCF v MIBP. The case was brought on behalf of a Tamil plaintiff who was part of a group of 157 Sri Lankan asylum seekers intercepted and detained at sea by Australian authorities for almost one month. The challenge was dismissed, with a majority of the court finding the detention lawful under the Maritime Powers Act. The facts before the court did not give rise to any issues of refoulement (the asylum seekers had eventually been transferred to the Australian run Regional Processing Centre in Nauru). A number of the justices nevertheless indicated a willingness to interpret the meaning of a ‘place of safety’ broadly, as encompassing similar protections to the non-refoulement obligations of the Refugee Convention and other human rights instruments.Footnote 175 For example, Hayne and Bell JJ stated, in terms similar to French CJ, that:
[t]he reference in s 74 to a person being ‘safe’ in a place must be read as meaning safe from risk of physical harm. A decision-maker who considers whether he or she is satisfied, on reasonable grounds, that it is safe for a person to be in a place must ask and answer a different question from that inferentially imposed by the Refugees Convention. But there is a very considerable factual overlap between the two inquiries. Many who fear persecution for a Convention reason fear for their personal safety in their country of nationality.Footnote 176
Kiefel J took a different approach, finding that section 74 only required that a point of disembarkation for a person is ‘in its immediate physical aspects … safe’.Footnote 177 It did not require that a maritime officer be satisfied that the place is one in which the person will not face a real risk of harm more generally.Footnote 178 As the matter was left unresolved, this is an issue that will no doubt be explored further in future litigation.
As things stand, there is currently no guarantee under Australian law of a reading of ‘delivery to a place of safety’ in line with the prohibition of refoulement, while in Europe procedural safeguards are, in turn, insufficient to secure such result in practice. This arguably renders maritime operations in both regions legally unsustainable as currently practised.
C. Lack of Transparency and Accountability
The securitization of SAR and its conflation with/subordination to security-related interdiction activities in Europe and Australia have resulted in a lack a transparency and accountability. This development, while unwelcome, is unsurprising because security operations are routinely shrouded in secrecy to avoid public scrutiny and the potential compromising of ‘successful’ operations.
In Australia, as noted above, Operation Sovereign Borders operates under a veil of silence. The government has sought to justify its decision not to comment on ‘on-water operational matters’ on the ground of national security and because such disclosure would benefit ‘the people smugglers and their business model’.Footnote 179 The secrecy has been extended to SAR operations. Since the commencement of the operation, AMSA has stopped posting shipping broadcasts requesting assistance on its website.Footnote 180 Ships involved in SAR activities receive direct communication from the Rescue Coordination Centre, but details of the activities are not released to the public. This secrecy makes it difficult to assess the extent to which Australian authorities are conforming to their obligations under the SAR regime, as well as under the Refugee Convention and human rights instruments.
Similar secrecy applies in recent EU interdiction activities carried out behind the shield of ‘EU security’.Footnote 181 A recent application for disclosure of the Operational Plan and Evaluation Report of Frontex-led Operation Hera in the period 2012–2015 in Western Africa and around the Canary Islands, submitted in 2016 by the European Centre for Constitutional and Human Rights (ECCHR), provides a telling example. Frontex purported to justify its extensive redaction of the Operational Plan by reference to ‘public security’ considerations, including a list of potential fundamental rights violations within Frontex activities.Footnote 182 The argument is particularly inappropriate because it impedes any meaningful accountability of the Agency.
In Europe, channels of democratic oversight exist, but remain weak.Footnote 183 Since 2011, Frontex has been obliged to formulate and implement a (non-legally binding) Fundamental Rights Strategy to ensure that its operations fully respect fundamental rights.Footnote 184 The European Parliament has exerted limited control through budgetary procedures.Footnote 185 Moreover, the EBCG Regulation now provides that the EU Coastguard shall be accountable to the Parliament (art 7) and that, prior to appointment, the Executive Director of the Coastguard shall make a statement before the European Parliament, if requested, and ‘report to it regularly’ thereafter (art 68), which may improve the current opacity.
Nevertheless, for the time being, the information released to the public on Frontex or EU Coastguard activities tends to be superficial and incomplete. The structure of general reports was revised in 2008 and the level of detail noticeably decreased.Footnote 186 According to the Agency, the purpose of general reports is actually to provide ‘a broad overview of activities … and highlight individual operational … successes’,Footnote 187 which leaves limited space for genuine external inspection. What is more, under the present Coastguard Regulation, ‘communication activities shall not be detrimental to [Coastguard] tasks’, which provides a basis for the Agency's discretionary release of information, including selective redaction of documentation on vague security grounds, as the ECCHR case demonstrates.Footnote 188
It is the linkage between SAR with issues of migration control and border security, coupled with the absence of independent, comprehensive monitoring mechanismsFootnote 189 that have allowed both the EU and Australia to diminish transparency of strategic decisions and on-water operations. The resulting reduction of the quality and opportunity for democratic oversight can thus be connected with an underlying securitization paradigm.
D. Cooperation and Commodification
States are reluctant to engage in SAR operations involving boat migrants because of the responsibilities that may arise in relation to determining asylum applications, as exemplified by the second of our two rescue tales in Part I, the MV Pinar incident. This concern is compounded by ambiguity surrounding key elements of the international SAR regime—in particular the meaning of ‘distress’, ‘place of safety’, and the selection of a point of disembarkation. The importance of this issue is widely acknowledged, but attempts to address it have fallen short to date.Footnote 190 The 2004 SOLAS amendments require State parties to cooperate to ensure that masters are relieved of their obligations to assist ‘with minimum further deviation from the ship's intended voyage’, but they do not go as far as mandating specific modalities for disembarkation.Footnote 191 EU norms are more detailed and prescriptive, but only apply to EU Coastguard-led operations, as pointed out above. Their full development in terms of identification and referral protocols in line with SAR standards, international human rights and refugee law has not been achieved.
In the absence of more detailed international rules, such as new IMO Guidelines or a further reform of the maritime conventions, it is up to individual States to enter into agreements with neighbouring countries as to how best to deal with this issue. Hitherto, such cooperation has not been forthcoming. While shiprider and similar agreements have been concluded for law-enforcement purposes,Footnote 192 States appear to be unwilling to participate in any arrangement that would result in them assuming (greater or any) responsibilities for rescued boat migrants. Cooperation is viewed as a zero-sum game, resulting in some States reducing their obligations at the cost of others taking on a greater burden.Footnote 193
Cooperation around law enforcement and securitization of borders may also be characterized as a zero-sum game. When States undertake actively to prevent the passage of boat migrants to another jurisdiction, they are in effect shifting the flow (and related responsibility) of those persons. However, States value such cooperation to the extent that they are willing to provide substantial payment or other inducements to partners.Footnote 194 The reality is that saving lives does not have the same priority.
One can observe cooperation becoming commodified in this way in the Mediterranean,Footnote 195 where the replacement of SAR with law enforcement and militarized border control efforts has become widespread. Some speak of a ‘world of cooperative deterrence’Footnote 196 or the ‘rise of consensual containment’ in this regard,Footnote 197 conceptualizing an ever-expanding trend that infringes the most basic rights of boat migrants.
The EU tends to avoid unilateral action. Rather, the organization—via the EU Coastguard, EUNAVFOR Med, and individual Member States—trades in trust, exchanging funds and assets for pull-backs and border-enforcement capacity of transit countries with cooperation in the containment of flows and the fight against unauthorized migration.Footnote 198 The implementation of the EU-Turkey Statement, the Memorandum of Understanding with Libya, and the related partnership with NATO, analysed above, demonstrates this strategic, selective approach to multilateral trust and collaboration with neighbours in the region.Footnote 199 The key drawback of this instrumentalization is its impact on SAR and human rights protection, which have been fundamentally distorted and made into a tool in the arsenal of the ‘war on smugglers’ across the Mediterranean.Footnote 200
Australia has achieved mixed results in enlisting the cooperation of neighbouring States in its interdiction and push-back operations. Sri Lanka has successfully been engaged to collaborate in joint interceptions and take-back procedures, as well as to disrupt refugee departures before they occur. Australia has provided equipment to Sri Lanka to assist them in carrying out these tasks, including two Bay Class patrol vessels gifted to the Sri Lankan navy.Footnote 201 Cooperation has also been forthcoming from Vietnam, which has accepted returns of its nationals intercepted at sea en route to Australia.Footnote 202 Australia's relationship with Indonesia is somewhat more complicated.Footnote 203 While the two nations have a long history of cooperating around border control issues, particularly through their role as joint chairs of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, Australia's securitized approach to boat migration has eroded trust and placed significant strain on the relationship.Footnote 204 So much so that Australian authorities unilaterally return boats to the edge of Indonesian territorial waters without consultation with, or approval from, the Indonesian Government.Footnote 205 Relations have been further damaged by revelations that Australian Navy Customs vessels had repeatedly ventured into Indonesian waters without authorization as part of patrols relating to Operation Sovereign Borders,Footnote 206 as well as allegations in 2015 that cash payments had been made by Australian authorities to induce Indonesian crew members of a migrant vessel to return to Indonesia.Footnote 207 In both instances, the actions were viewed by Indonesia as a significant breach of its sovereignty and territorial integrity.Footnote 208 This growing distrust has serious flow-on effects for the operation of SAR in the region, and makes reaching agreement on key issues like modalities of disembarkation all the more difficult.
Australia has had success in commodifying and outsourcing other elements of its international responsibilities, particularly where it has been unable to successfully push back asylum seekers at sea. Under Australian law, persons that attempt to reach Australia by boat are barred from applying for asylum or ever settling in Australia.Footnote 209 They are instead transferred to facilities in Manus Island, PNG or Nauru, to have their protection claims assessed under the domestic laws of those countries.Footnote 210 Cooperation from PNG and Nauru was secured through substantial cash inducements delivered through Australia's aid programme, and payments covering the costs of building and running the detention centres where rescued/intercepted asylum seekers are placed on arrival.Footnote 211 The facility on Manus Island was decommissioned on 31st October 2017,Footnote 212 following a decision of the Supreme Court of PNG declaring the detention of asylum seekers illegal.Footnote 213 But there are currently no plans to amend or rescind the arrangement with Nauru. Cambodia has also been recruited to resettle a handful of the refugees processed on Nauru. Only six have so far volunteered for the programme, and, of these, four decided instead to return to their home countries, citing unbearable living conditions.Footnote 214 This has come at the cost of approximately AUD$55 million to the Australian government in additional aid and direct payment for resettlement services.Footnote 215
As in the case of the EU, the intention of these arrangements is to ‘outsource’ Australia's international obligations with respect to refugees and migrants to poorer neighbours in the region.Footnote 216 Both Australia and the EU seem to be under the impression that cooperation in this guise releases them of any international responsibility. Yet, in most cases, the States concerned will still be responsible under general customary law,Footnote 217 either through exercising effective control (such as Australia's direct involvement in offshore processing) or through complicity, direction, and/or control of internationally wrongful acts committed by the third country (as in the case of the EU and Italy's support to pull-backs by Libya).Footnote 218 What neither region appears to realize is that, pursuant to the pacta sunt servanda principle, ‘every treaty in force [eg the Refugee Convention or instruments of human rights law] is binding upon the parties to it and must be performed by them in good faith’.Footnote 219 Once concluded, it may be denounced—if the text so allows—but cannot be ‘contracted out’ via subsequent (if cooperative) arrangements.Footnote 220 In those circumstances, the very wording of the Vienna Convention on the Law of Treaties indicates that responsibility ‘may arise for a State from the conclusion or application of a [subsequent] treaty [however named]Footnote 221 the provisions of which are incompatible with its obligations towards another State under another [prior] treaty’.Footnote 222 Otherwise, the opposite would mean that ‘the guarantees of [eg refugee and human rights conventions] could be limited or excluded at will thereby depriving [them] of [their] peremptory character and … practical and effective nature …’.Footnote 223
The void left by official authorities, in terms of SAR coverage in the Mediterranean, has been filled by civil society organizations undertaking private rescues. Especially since the outbreak of the ‘crisis’ in 2015, several NGOs have been formed with the purpose of locating and assisting migrant boats in the Central Mediterranean and the Aegean Sea.Footnote 224 Their intervention has very much changed the landscape, to the extent that they have been recorded to perform up to half of the total rescues undertaken.Footnote 225 This, in turn, has been perceived to create a ‘call effect’ or ‘pull factor’, facilitating the deeds of human traffickers and migrant smugglers.Footnote 226 Although Frontex has denied direct accusations,Footnote 227 these have been reported by the pressFootnote 228 and have translated, at least on two occasions, on the pressing of charges against NGOs.Footnote 229 Proemaid, a group of Spanish fire-fighters operating in Lesbos, has been accused of ‘attempted’ human trafficking under Greek law, and there is an open case against the German Jugend Rettet in Italy.Footnote 230
Although the European Commission has denied any need to revise the Facilitators Directive to unambiguously decriminalize humanitarian assistance under EU law,Footnote 231 there is a solid consensus in the literatureFootnote 232 that the EU instrument is not in full alignment with the Smuggling Protocol,Footnote 233 as it omits that for the perpetration of the crime of facilitation of irregular entry into a Member State there needs to be an economic gainFootnote 234 —on top of a mens rea or criminal intent element and a link to organized transborder mafias.Footnote 235 The travaux préparatoires make clear that the reference in the definition of migrant smuggling in Article 3 of the Protocol to ‘a financial or other material benefit’ was included precisely ‘to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons’.Footnote 236 The Protocol's aim was not to punish NGOs.
By contrast with the EU situation, to date, there have been no NGO groups involved in active search and rescue missions targeting asylum seekers and migrants off Australia's coast. If such operations were to take place, the crew of the NGO vessels may be liable for prosecution under Australia's strict anti-people smuggling laws. First introduced in 1999, the anti-people smuggling provisions have progressively broadened in the intervening years.Footnote 237 As in the EU, there is no requirement of ‘a financial or other material benefit’.Footnote 238 All that is required is that a person ‘organises or facilitates’ the entry (or proposed entry) of a migrant who has no right to enter Australia.Footnote 239 Where there are more than five migrants involved, this constitutes an aggravated offence with a penalty of up to 20 years imprisonment.Footnote 240 Reforms introduced in 2011 make it clear that it is immaterial whether Australia owes, or may owe, the migrants protection obligations under the Refugee Convention and Protocol, or other human rights instruments.Footnote 241 Persons who donate money to NGOs involved in search and rescue of asylum seekers and migrants at sea may also face criminal charges for the offence of providing material support or resources to a person or organization involved in people smuggling.Footnote 242 It may be possible, however, for those involved in humanitarian rescue to rely on the defence of ‘sudden and extraordinary emergency’, which is included in the Criminal Code Act 1995 (Cth).Footnote 243 This defence will be successful where the accused can show that they were obliged to commit an offence by reason of some extraordinary emergency. It is arguable that rendering assistance to persons in distress at sea would meet this requirement.Footnote 244 However, hitherto, this defence remains largely untested in Australian courts.Footnote 245
The criminalization of people smuggling, and in particular the enactment of broad offences that go well beyond what is authorized and required under the Smuggling Protocol, are yet another manifestation of the securitization of SAR in the EU and Australia.
The fundamental humanitarian purpose of SAR is under threat because of the securitization and, increasingly, the militarization and criminalization of boat migration. The practice of the European Coastguard and individual EU Member States, as well as Australia, demonstrates that the line between SAR and security-related interdiction has been increasingly blurred and manipulated. The Australian regime ostensibly intends to identify whether a vessel is one requiring a SAR response or is an instance of unlawful entry, and different agencies are mobilized accordingly. However, if an Australian asset is deployed for SAR, the operation falls under the Maritime Powers Act and secrecy requirements follow. In the EU, the Coastguard is primarily focused on border-enforcement operations, which have been increasingly securitized as a response to people smuggling and human trafficking. This characterization has been reinforced by Security Council Resolution 2240 (2015) and formal collaboration with EUNAVFOR Med Operation Sophia and NATO Sea Guardian patrols. In these examples, the SAR regime is either relegated or merged into a law-enforcement response to people smuggling. Instead, the critical task of identifying a vessel in distress should be the catalyst for determining whether the response should be directed through the SAR regime or whether the vessel should be subjected to an interdiction measure for migration control purposes.
Securitization is also eroding the spirit of cooperation that is so essential to the effectiveness of the SAR regime. Rescues at sea often involve authorities from multiple jurisdictions. It is common for a rescue to be carried out by a merchant vessel flagged in State A, coordinated by authorities from State B, and end with disembarkation in State C. Any perception that one or more of the parties may not carry out their respective obligations in good faith is a disincentive for the other parties involved. Securitization of SAR in one jurisdiction can also place pressure on other jurisdictions to follow suit. This is the result of a perception that a robust SAR apparatus may act as a ‘pull factor’ for boat migrants, despite evidence denying such effect.Footnote 246 Hence, there is a risk of a ‘race to the bottom’ as States prioritize security over saving lives at sea in a bid to divert irregular migrant flows to other jurisdictions.Footnote 247 This situation underscores the need to recover the humanitarian essence of SAR and shed the regime of its securitized and militarized connotations. SAR should be understood as an end in itself, not as a means to prevent irregular migration at the service of anti-smuggling strategies.
At least since the Corfu Channel case, it has been known that ‘elementary considerations of humanity’ still adhere in situations of high security concern, particularly where human lives are at stake.Footnote 248 In adopting a securitization frame for responding to boat migration, States still retain core responsibilities in how they carry out law enforcement operations. In particular, the International Tribunal for the Law of the Sea has recognized that considerations of humanity apply in the law of the sea, and even law enforcement operations must not travel beyond what is a reasonable and proportionate use of force.Footnote 249 These standards must be borne in mind in the type of actions taken in response to boat migration. In the treatment of boat migrants, States must recall that they ‘are required to fulfil their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances’.Footnote 250
It is important to remember that the SAR regime is just one of a number of overlapping international legal regimes governing the power of States to deal with boat migrants at sea. Refugee law, international human rights law, the law of the sea, and the human smuggling and trafficking frameworks are all relevant in this regard. States often deal with these regimes in a fragmented manner,Footnote 251 cherry picking provisions that allow them to justify a securitized approach to protect State interests.Footnote 252 Further research on how these regimes intersect, and how they can be integrated in a mutually reinforcing way, may provide the key to recovering the humanitarian dimension of SAR.Footnote 253 In such a conception, the obligations of humanity extended to those in peril at sea would be blind as to their identity as lone yachtsmen from the developed world or ‘huddled masses yearning to breathe free’.Footnote 254