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  • Daniel Ghezelbash (a1), Violeta Moreno-Lax (a2), Natalie Klein (a3) and Brian Opeskin (a4)


This article compares the law and practice of the European Union and Australia in respect to the search and rescue (SAR) of boat migrants, concluding that the response to individuals in peril at sea in both jurisdictions is becoming increasingly securitized. This has led to the humanitarian purpose of SAR being compromised in the name of border security. Part I contrasts the unique challenge posed by SAR operations involving migrants and asylum seekers, as opposed to other people in distress at sea. Part II analyses the relevant international legal regime governing SAR activities and its operation among European States and in offshore Australia. Part III introduces the securitization framework as the explanatory paradigm for shifting State practice and its impact in Europe and Australia. It then examines the consequences of increasing securitization of SAR in both jurisdictions and identifies common trends, including an increase in militarization and criminalization, a lack of transparency and accountability, developments relating to disembarkation and non-refoulement, and challenges relating to cooperation and commodification.

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1 M Daly, ‘A Race against Time and Ocean’ The Age (Melbourne, 11 January 1997) 15.

2 F Ogilvie, ‘Tony Bullimore Sets Sail Alone on another Extreme Challenge’ ABC (Online, 1 May 2007) <>.

3 R Vassallo, ‘Politics, Legal Wrangling at Heart of Malta-Italy Standoff’, Malta Today (Online, 19 April 2009) <>; ‘Italy: Immigrants Land in Sicily after Rejection by Malta’, Adnkronos International (Online, 20 April 2009) <>.

4 De Blouw, N, ‘Drowning Policies: A Proposal to Modify the Dublin Agreement and Reduce Human Rights Abuses in the Mediterranean’ (2010) 40 CaWIntlLJ 335 ; Klepp, S, ‘A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea’ (2011) 23 IJRL 538, 547.

5 Matthews, P, ‘Australian Refugee Protection in the Wake of the Tampa ’ (2002) 96 AJIL 661 .

6 Klein, N, ‘A Case for Harmonizing Laws on Maritime Interceptions of Irregular Migrants’ (2014) 63 ICLQ 787 ; Moreno-Lax, V, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 IJRL 174 .

7 Barnes, R, ‘Refugee Law at Sea’ (2004) 53 ICLQ 47, 49.

8 In Australia, between 70 and 100 per cent of asylum seekers arriving by boat in recent years have been found to be refugees: J Phillips, ‘Asylum Seekers and Refugee: What Are the Facts?’ (2015) Australian Parliamentary Library Research Paper Series 2014–15, 9. In the EU, the top boat migrant nationalities (ie Syrian, Afghan, and Iraqi) are also the top nationalities of registered asylum seekers and recognized refugees in EU-28. Combine: EUROSTAT, Asylum Quarterly Report (15 March 2017) <>; with IOM, Missing Migrants Project – Migration Flows: Europe <>. Note also that ‘[t]he vast majority - more than 80% - of those who reached Europe by boat in 2015 came from those three countries’: ‘Why is EU Struggling with Migrants and Asylum?’, BBC News (Online, 3 March 2016) <>.

9 International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 278 (SOLAS Convention).

10 International Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 119 (SAR Convention).

11 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS).

12 ‘Status of Multilateral Conventions and Instruments in respect of which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions’ (International Maritime Organization, 10 October 2016) (‘IMO Status of Ratifications’) <>.

13 Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof [1998] OJ L179/1.

14 The three EU Member States which have not ratified the SAR Convention are Austria, the Czech Republic and Slovakia. It is important to note that all three are landlocked and hence have no responsibility over SAR regions: IMO Status of Ratifications (n 12).

15 Churchill, RR and Lowe, A, The Law of the Sea (3rd edn, Manchester University Press 1999) 712 ; Rothwell, D and Stephens, T, The International Law of the Sea (2nd edn, Hart 2016) 22–3.

16 O'Connell, DP, The International Law of the Sea (Clarendon Press 1982) 813–14; Goodwin-Gill, G and McAdam, J, The Refugee in International Law (3rd edn, Clarendon Press 2007) 278; Pallis, M, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts between Legal Regimes’ (2002) 14 IJRL 329, 333–4.

17 For a review covering developments since the inception of Frontex, see Moreno-Lax, V, Accessing Asylum in Europe (Oxford University Press 2017) ch 6.

18 UNHCR, ‘Refugees & Migrants Sea Arrivals in Europe: Monthly Data Update’ (Bureau for Europe, December 2016) 1 <>; UNHCR, ‘Mediterranean: Dead and Missing at Sea: January 2015–31 December 2016’ (2017) <>.

19 Missing Migrants Project, ‘Latest Global Figures: Migrant Fatalities Worldwide’ (International Organization for Migration (IOM) 2017) <>.

20 EU-Turkey Statement, EC Press Release 144/16 (8 March 2016) <>; Seventh Report on the Progress made in the implementation of the EU-Turkey Statement, COM(2017) 470.

21 Memorandum of Understanding of 2 February 2017 on Cooperation in the Fields of Development, the Fight against Illegal Immigration, Human Trafficking and Fuel Smuggling and on Reinforcing the Security of Borders between the State of Libya and the Italian Republic <>.

22 For a critique, see V Moreno-Lax and M Giuffré, ‘The Rise of Consensual Containment: From “Contactless Control” to “Contactless Responsibility” for Forced Migration Flows’ in S Juss (ed), Research Handbook on International Refugee Law (Edward Elgar, forthcoming).

23 On the delivery of the European Agenda on Migration, COM(2017) 558, 2.

24 Migrant Smuggling Working Group, ‘Statistics relating to Migrant Smuggling in Australia’ (University of Queensland, TC Beirne School of Law, 24 March 2017) <>.

25 J Phillips, ‘Boat Arrivals and Boat “Turnbacks” in Australia since 1976: A Quick Guide to the Statistics’ (2017) (Australian Parliamentary Library Research Paper Series 2016–17).

26 ibid.

27 See (n 210) and related discussion.

28 G Nakhoul, Overboard: You Would Not Believe what Really Triggered Australia's Controversial Policy on Boat People (Dar Meera 2011).

29 Border Crossing Observatory, ‘Australian Border Deaths Database’ (March 2017) <>.

30 Regulation (EU) 2016/1624 of 14 September 2016 on the European Border and Coast Guard [repealing Council Regulation (EC) No 2007/2004 (‘Frontex Regulation’ or ‘FR’), Regulation (EC) No 863/2007 (‘RABIT’), and Regulation (EU) No 1168/2011 (‘Frontex Recast Regulation’ or ‘FRR’] [2016] OJ L251/1 (‘EBCGR’); for analysis, see Moreno-Lax, Accessing Asylum (n 17).

31 Rader, M, ‘The “Good Samaritan” in Jewish Law’ (2001) 22 JLegMed 375 .

32 For example, de Vattel claimed that ‘to give assistance in such extreme necessity is so essentially conformable to humanity, that the duty is seldom neglected by any nation that has received the slightest polish of civilisation’: E de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF edn 1797) Bk II Ch I [5] <>.

33 For a discussion of the politics of interpretation, see Gammeltoft-Hansen, T, ‘The Perfect Storm: Sovereignty Games and the Law and Politics of Boat Migration’ in Moreno-Lax, V and Papastavridis, E (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach. Integrating Maritime Security with Human Rights (Brill 2016) 60, 66; Arguing for a wide construction of the term ‘distress’ see L Komp, ‘The Duty to Assist Persons in Distress: An Alternative Source of Protection against the Return of Migrants and Asylum Seekers to the High Seas?’ in Moreno-Lax and Papastavridis ibid 222.

34 The SOLAS Convention contains a provision akin to art 98(2) of UNCLOS. See SOLAS Convention, Annex, ch 5 reg 15(a). These arrangements are to include maritime safety facilities adequate for the location and rescue of such persons.

35 SAR Convention, Annex, [2.1.1], [2.1.4].

36 Australian Maritime Safety Authority, ‘Australia's Search and Rescue Region’ (Australian Government) <>.

37 For a map of the SAR zones, see European Political Strategy Centre (EPSC), Irregular Migration via the Mediterranean: From Emergency Responses to Systemic Solutions, Issue 22 (February 2017) <>; see also Trevisanut, S, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’ (2010) 25 IJMCL 523 , Annexes I–II.

38 SOLAS Convention, art II.

39 SOLAS Convention, Annex, ch 5 reg 15(a); Pallis (n 16) 335. Note, however, that SOLAS generally does not apply to public vessels such as warships and coastguard vessels participating in operations described in this article: SOLAS Convention, reg 3(a)(i).

40 Pugh, M, ‘Drowning Not Waving: Boat People and Humanitarianism at Sea (2004) 17 JRS 50 , 60; see also V Moreno-Lax, The Interdiction of Asylum Seekers at Sea: Law and (Mal)practice in Europe and Australia, Kaldor Centre Policy Brief No 4 (May 2017).

41 SOLAS Convention, Annex, ch 5 reg 10(a); Strictly speaking, however, a State's international legal obligations arise from the requirement in art 1(b) to promulgate all laws necessary to give full and complete effect to the instrument and its Annex.

42 This does not mean that there are no other relevant obligations, eg, flowing from the right to life under human rights law, enjoining States to do everything within their power to preserve human life. On the extent of positive duties arising from the intersection between SAR and human rights law, see Komp (n 33).

43 SAR Convention, Annex, [2.1.10].

44 ibid [1.3].

45 ibid [3.1]; For example, States are required to cooperate for the purpose of allowing another State entry into its territorial sea to conduct SAR operations: see Barnes (n 7) 53.

46 For a history, see Barnes (n 7) 106–11.

47 IMO, ‘Guidelines on the Treatment of Persons Rescued at Sea’ (20 May 2014) Res MSC.167(78) Annex 34.

48 IMO, ‘Adoption of Amendments to the International Convention for the Safety of Life at Sea 1974 as Amended’ (20 May 2004) Res MSC.153(78) ch 5 reg 33.

49 Papastavridis, E, The Interception of Vessels on the High Seas (Hart 2014) 297300 .

50 Trevisanut, S, ‘Is There a Right to be Rescued at Sea? A Constructive View’ (2014) QuestIntlL, 7 . cf Moreno-Lax (n 6).

51 Ratcovich, M, ‘The Concept of “Place of Safety”: Yet Another Self-Contained Maritime Rule or a Sustainable Solution to the Ever Controversial Question of Where to Disembark Migrants Rescued at Sea?’ (2015) 33 AustYBIL 81 .

52 IMO, Res MSC.167(78), [6.12]–[6.18].

53 IMO, Res MSC.167(78), [6.17].

54 IMO Status of Ratifications (n 12). Malta's objection means that it is not bound by the amendments.

55 ECtHR, Hirsi Jamaa v Italy, App 27765/09 (23 February 2012). For analysis, see Coppens, J, ‘The Law of the Sea and Human Rights in the Hirsi Jamaa and Others v Italy Judgment of the European Court of Human Rights’ in Haeck, Y and Brems, E (eds), Human Rights and Civil Liberties in the 21st Century (Springer 2014) 179.

56 See V Moreno-Lax, ‘The EU Humanitarian Border and the Securitization of Human Rights: The “Rescue-through-Interdiction/Rescue-without-Protection” Paradigm’ JComMarSt (forthcoming).

57 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/01, art 77.

58 Council of the EU, Doc 14612/13 (10 October 2013) 2 <>.

59 EBCGR arts 1, 4, 8.

60 European Border Surveillance System (EUROSUR) Regulation (EU) 1052/2013, [2013] OJ L295/11, arts 1–2. For commentary, see Rijpma, J and Vermeulen, M, ‘EUROSUR: Saving Lives or Building Borders?’ (2015) 24 European Security 454 .

61 M Fernandez, ‘The EU External Borders Policy and Frontex-Coordinated Operations at Sea: Who is in Charge?’ in Moreno-Lax and Papastavridis (n 33) 381; Fink, M, ‘A “Blind Spot” in the Framework of International Responsibility? Third Party Responsibility for Human Rights Violations: The Case of Frontex’ in Gammeltoft-Hansen and Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation (Routledge 2016) 272.

62 EBCGR art 15(1)–(3).

63 ibid; The more forceful wording originally proposed by the European Commission granting Frontex a ‘right to intervene’ has not been finally retained, but that does not detract from the fact that the Agency can anyway exert significant influence; see also J Rijpma, ‘The Proposal for a European Border and Coast Guard: Evolution or Revolution in External Border Management?’ (2016) European Parliament Study PE 556.934 <>.

64 Regulation (EU) No 656/2014 of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex, [2014] OJ L189/93 (‘Maritime Surveillance Regulation’ or ‘MSR’) recital 4.

65 MSR art 1, recitals 3 and 20, defining the ‘scope of application’.

66 MSR recital 1; see also Regulation (EU) No 2016/399 of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), [2016] OJ L77/1 (‘SBC’) art 13.

67 MSR arts 4(7), 9(1) and recitals 8–10.

68 MSR recital 1.

69 This was also the case under the predecessor of the MSR. See Moreno-Lax, V, ‘The EU Regime on Interdiction, Search and Rescue, and Disembarkation: The Frontex Guidelines for Intervention at Sea’ (2010) 25 IJMCL 621 .

70 MSR recital 14 (emphasis added).

71 MSR recital 15.

72 MSR arts 9(2), 10.

73 EBCGR art 5 (emphasis added).

74 MSR art 9(1).

75 MSR art 9(2)(f).

76 MSR art 4(4).

77 MSR art 9(2)(a).

78 MSR arts 3, 9(2)(g), 9(2)(h).

79 Corfu Channel Case (United Kingdom v Albania), [1949] ICJ Rep 4, para 22. See also MV Saiga (No. 2) (St. Vincent v Guinea), [1999] ITLOS Rep 10, 120 ILR 143, para 55; and Juno Trader, [2004] ITLOS Rep 17, 128 ILR 267, para 77.

80 Frontex, ‘Frontex Launches Joint Operation Triton’ (Frontex Press Release, 31 October 2014) <>; see also Frontex, ‘How does Frontex Joint Operation Triton Support Search and Rescue Operations?’ <>.

81 M Militare, ‘Mare Nostrum Operation’ (Ministero Della Difesa) <>. For a critique, see P Cuttitta, From the Cap Anamur to Mare Nostrum: Humanitarianism and Migration Controls at the EU's Maritime Borders, CLEER Working Papers 2014/7.

82 European Council on Refugees and Exiles (ECRE), ‘Mare Nostrum to End – New Frontex Operation Will Not Ensure Rescue of Migrants in International Waters’ (ECRE 10 October 2014) <>; both the budget and operational area were smaller, covering only 30 miles off the Italian coasts with a EUR 3 million monthly allocation (a third of Mare Nostrum's).

83 See L Davies and A Neslen, ‘Italy: End of Ongoing Sea Rescue Mission “Puts Thousands at Risk”’ The Guardian (Online, 31 October 2014) <>.

84 N Farrell, ‘Italy is Killing Refugees with Kindness: The “Mare Nostrum” Policy has Acted as a Magnet for Boat People’ The Spectator (Online, 6 September 2014).

85 Frontex, ‘Frontex launches call for participation in JO Triton’ (Frontex Press Release, 26 September 2014).

86 European Commission, ‘Frontex Joint Operation “Triton” – Concerted Efforts to Manage Migration in the Central Mediterranean’ (Memo, 7 October 2014) <>.

87 ibid (emphasis added).

88 ibid. On this point, see S Carrera and L den Hertog, ‘Whose Mare? Rule of Law Challenges in the Field of European Border Surveillance in the Mediterranean’ (CEPS 27 January 2015) <>.

89 ibid (emphasis added); see also Frontex, ‘Frontex Expands Its Joint Operation Triton’ (Frontex Press Release, 26 May 2015) <>.

90 ‘EU Borders Chief Says Saving Migrants’ Lives “Shouldn't be Priority” for Patrols’, The Guardian (Online, 22 April 2015) <>.

91 For a detailed analysis of these jurisdictional zones and respective powers exercisable in each, see Churchill and Lowe (n 15) 60–222; Rothwell and Stephens (n 15) 30–179; Guilfoyle, D, Shipping Interdiction and the Law of the Sea (Cambridge University Press 2009) 720 ; Papastavridis (n 49) 259–307 (focusing on the scope of powers to interdict persons on the high seas).

92 Established by the Australian Maritime Safety Authority Act 1990 (Cth).

93 Australian National Search and Rescue Council, National Search and Rescue Manual (Australian Maritime Safety Authority 2017) <>.

94 ibid 80.

95 The Maritime Border Command was known as the Border Protection Command prior to July 2015: ‘Maritime Border Command's History’ (Department of Immigration and Border Protection) <>.

96 MPA Pt 3.

97 MPA section 29.

98 See the government's arguments in Ruddock v Vadarlis (2001) 110 FCR 491 and CPCF [2015] HCA 1 (28 January 2015).

99 Australian Border Protection Command, Guide to Australian Maritime Security Arrangements (GAMSA) (Australian Government 2013) <>. As it was published in 2013, the titles of a number of named agencies have since changed. This article refers to the current names of the relevant agencies and stakeholders.

100 The Australian Border Force was established on 1 July 2015 after the merger of the Australian Customs and Border Protection Service and some parts of Department of Immigration and Border Protection: ‘Our History’ (Department of Immigration and Border Protection) <>.

101 AMSA, Senate Budget Estimates Briefing: Search and Rescue Operations (May 2014), obtained pursuant to a request made under the Freedom of Information Act 1982 (Cth) by H Degan on 20 June 2014.

102 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Correspondence dated 14 April 2014, 4–8 <> (providing examples of where the vessels are stationed, and how operations change from SAR to interdiction and vice versa).

103 ‘The Coalition's Operation Sovereign Borders Policy’ (Liberal Party of Australia and The Nationals July 2013) <>; Note that this is a cached version as the original policy document was removed from the Liberal and National Party websites at the start of the 2016 election campaign.

104 E Griffiths, ‘Scott Morrison says Government Won't Reveal When Asylum Seekers Boats Turned Back’ ABC News (Online, 24 September 2013) <>; see also (n 179) and related discussion.

105 Bigo, D, ‘Security and Immigration: Toward a Critique of the Governmentality of Unease’ (2002) 27 Alternatives 63 ; see also Huysmans, J, ‘The European Union and the Securitization of Migration’ (2000) 38 JComMarSt 751 ; Lazaridis, G and Wadia, K, The Securitization of Migration in the EU: Debates Since 9/11 (Palgrave McMillan 2015).

106 For an analysis of contemporary ‘threats to maritime security’ that have contributed to increased securitization, see Papastavridis (n 49).

107 Buzan, B et al. , Security: A New Framework for Analysis (Lynne Rienner 1998) 32–3. For the sociological approach, cf Balzacq, T (ed), Securitization Theory (Routledge 2011); and Huysmans, J, The Politics of Insecurity (Routledge 2006).

108 Pugh (n 40) 52; see also Watson, SD, ‘Manufacturing Threats: Asylum Seekers as Threats or Refugees?’ (2007) 3 JILIR 95 , 101.

109 See Nessel, LA, ‘Externalised Borders and the Invisible Refugee’ (2009) 40 ColumHumRtsLRev 625 , 642 (referring to the US response to illegal boat arrivals from Haiti); see further in Mitsilegas, V, ‘Immigration Control in an Era of Globalization: Deflecting Foreigners, Weakening Citizens, Strengthening the State’ (2012) 19 IndJGlobalLegalStudies 3, 1217 .

110 Pugh (n 40) 53.

111 Bueger, C, ‘What is Maritime Security?’ (2015) 53 MarPoly 159, 162. See also, generally, Waever, O, ‘Securitization and De-securitization’ in Lipschutz, RD (ed), On Security (Columbia University Press 1995) 46 .

112 T Abbott, ‘Address to the 2013 Federal Coalition Campaign Launch’ (Brisbane, 25 August 2013) <;query=Id%3A%22library%2Fpartypol%2F2686857%22>.

113 Nessel (n 109) 655.

114 UNSC Res 2240 (9 October 2015) UN Doc S/RES/2240, renewed by UNSC Res 2312 (6 October 2016) UN Doc S/RES/2312, para 7. See (n 134) and related discussion in Part III.A.

115 A decision of the Security Council adopted under the UN Charter is binding on all UN member States and trumps other international obligations: UN Charter art 25 and art 103.

116 UN Charter art 39.

117 See GS Goodwin-Gill, ‘Setting the Scene: Refugees, Asylum Seekers, and Migrants at Sea – the Need for a Long-Term, Protection-Centred Vision’ in Moreno-Lax and Papastavridis (n 33) 17. Further on this point, see Jeandesboz, J and Pallister-Wilkins, P, ‘Crisis, Enforcement and Control at the EU Borders’ in Lindley, A (ed), Crisis and Migration (Routledge 2014) 115; and Jeandesboz, J and Pallister-Wilkins, P, ‘Crisis, Routine, Consolidation: The Politics of the Mediterranean Migration Crisis’ (2016) 21 Mediterranean Politics 316 .

118 Moreno-Lax (n 56) and references therein; see also Guild, E, Costello, C and Moreno-Lax, V, ‘Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece’ (2017) European Parliament Study PE 583.132; Poptcheva, E, ‘EU Legal Framework on Asylum and Irregular Immigration “On Arrival”: State of Play’ (2015) European Parliament Study PE 551.333.

119 It is currently under the command of Air Vice-Marshal Stephen Osborne: Peter Dutton MP, Minister for Immigration and Border Protection ‘New Commander for Operation Sovereign Borders’ (Media Release, 1 February 2017) <>.

120 Department of Defence ‘Border Protection News: Operation Resolute’ (Australian Government) <>.

121 ibid.

122 ibid.

123 Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, 7 July 2017 (Response to question taken on notice, BE17/042) <>.

124 Schloenhardt, A and Craig, C, ‘“Turning Back the Boats”: Australia's Interdiction of Irregular Migrants at Sea’ (2015) 27 IJRL 536, 548–58 (collating media reports in relation to Australian maritime interdiction activities up until 15 November 2014); Phillips (n 25) 4 (referencing reports of turnbacks to Sri Lanka and Vietnam).

125 Schloenhardt and Craig (n 124).

126 B Doherty and H Davidson, ‘Orange Lifeboats Used to Return Asylum Seekers to Be Replaced by “Fishing Boats”’ The Guardian (Online, 4 March 2015) <>.

127 European Commission, ‘Joint Foreign and Home Affairs Council: Ten Point Action Plan on Migration’ (Press Release IP/15/4813, 20 April 2015) <>; European Agenda on Migration, COM(2015) 240 (13 May 2015).

128 Council Conclusions (EUCO 22/15) of 26 June 2015, 1.

129 Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L122/31; Council Decision (CFSP) 2015/972 of 22 June 2015 launching the European Union military operation in the southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L157/51.

130 ‘Europe Is Declaring War on Smugglers’ CBS News (Online, 23 April 2015) <>.

131 Council of the European Union, ‘Council Launches EU Naval Operation to Disrupt Human Smugglers and Traffickers in the Mediterranean’ (Press Release 482/15, 22 June 2015); Council of the European Union, ‘Council Establishes EU Naval Operation to Disrupt Human Smugglers in the Mediterranean’ (Press Release 301/15, 18 May 2015); Council Decision 2015/972 (n 129).

132 Council of the European Union, ‘PMG Recommendations on the Draft Crisis Management Concept for a Possible CSDP Operation to Disrupt Human Smuggling Networks in the Southern Central Mediterranean, 8824/15, Brussels, 12 May 2015’ (Wikileaks, 25 May 2015) <>.

133 F Mogherini, ‘High Representative/Vice-President Federica Mogherini's Remarks’ (UN Security Council, New York, 11 May 2015) <>; see also UNSC Verbatim Record (11 May 2015) UN Doc S/PV/7439.

134 UNSC Res 2240 (9 October 2015) UN Doc S/RES/2240 (emphasis added). For commentary, see E Papastavridis, EUNAVFORMed Operation Sophia: Fighting Smuggling of Migrants or Protecting Human Rights? CLEER Papers 2016/5, 139; and Papastavridis, E, ‘EUNAVFORMed Operation Sophia and the International Law of the Sea’ (2016) 2 Maritime Safety and Security Law Journal 57 .

135 Council of the European Union (n 132).

136 W Spindler, ‘Mediterranean Death Toll Soars to All-Time High’ (UNHCR, 25 October 2016) <>. See also IOM, Missing Migrants Project (n 8).

137 Council Decision (CFSP) 2016/993 of 20 June 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA), [2016] OJ L162/18; On the arms embargo, see UNSC Res 2292 (14 June 2016) UN Doc S/RES/2292. A further extension has been agreed until 31 December 2018, see EC Press Release 494/17 (25 July 2017) <>.

138 EEAS, EUNAVFOR MED Op Sophia – Six Monthly Report 1 January–31 October 2016, Council doc 14978/16 (30 November 2016) 14–15 (emphasis added) (‘Operation Sophia Report 2016’).

139 Council of the European Union, ‘Malta Declaration by the Members of the European Council on the External Aspects of Migration: Addressing the Central Mediterranean Route’ (Press Release 43/17, 3 February 2017) (‘Malta Declaration’) para 6(j).

140 For a detailed elaboration, see Moreno-Lax, Accessing Asylum (n 17), chs 8 and 9.

141 J Sunderland, ‘Why Cooperating with Libya on Migration Could Damage the EU's Standing’ (Human Rights Watch, 7 November 2016) <>. cf Moreno-Lax and Giuffré (n 22).

142 Denouncing a ‘take back’ episode, see ‘Sea-Watch Demands Independent Investigation of the Illegal Return of an Overcrowded Wooden Boat’, Sea Watch Press Release (11 May 2017) <>.

143 On the characterization of ‘take backs’ or ‘pull backs’, see Markard, N, ‘The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries’ (2016) 27 EJIL 591 . Generally, on responsibility for rescue at sea, see E Papastavridis, ‘Rescuing Migrants at Sea and the Law of State Responsibility’ in Gammeltoft-Hansen and Vedsted-Hansen (n 61) ch 7.

144 ‘NATO Defence Ministers Agree on NATO Support to Assist with the Refugee and Migrant Crisis’ (NATO, 11 February 2016) <>.

145 ibid.

146 See A Rettman, ‘Nato to Take Migrants back to Turkey, If Rescued’ (EUObserver, 23 February 2016) <> reporting declarations by NATO Secretary General to the European Parliament.

147 European Commission, Seventh Report on the Progress made in the implementation of the EU-Turkey Statement, COM(2017) 470.

148 B Frelick, ‘NATO Enters the Migration Control Business’ (EUObserver, 18 February 2016) <>; On the precarious situation of refugees and migrants in Turkey, see Amnesty International, A Blueprint for Despair: Human Rights Impact of the EU-Turkey Deal (2017) <>.

149 IMO, Res MSC.167(78), [2.1.2], [6.17].

150 ‘NATO Launches New Operation Sea Guardian’ (NATO, 9 November 2016) <>.

151 ‘Warsaw Summit Communiqué Issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Warsaw 8–9 July 2016’ (NATO, 9 July 2016) <>.

152 ‘NATO's Aegean Patrols to Continue’ (Ekathimerini, 6 February 2017) <>.

153 See comments from Human Rights Watch: ‘Nato to Launch New Mediterranean Mission’ (EU Observer, 10 July 2016) <>.

154 See (n 46) and related discussion.

155 MSR art 10(1)(a). Note, however, that this is ‘without prejudice’ to ordering the vessel concerned to alter its course or escorting it outside the territorial sea or contiguous zone of the Member State concerned, pursuant to MSR art 6(2)(b).

156 MSR art 10(1)(b) (emphasis added).

157 MSR art 10(1)(c).

158 MSR art 2(12) and recital 12.

159 MSR art 4(7) and recital 10; EBCGR art 34(1) (emphasis added).

160 MSR art 4(1); EBCGR art 34(2).

161 MSR art 4(2).

162 MSR art 4(3).

163 See, extensively, Moreno-Lax, Accessing Asylum (n 17) chs 6, 8 and 10.

164 See eg S Osborne, ‘Horrific Phone Calls Reveal How Italian Coast Guard Let Dozens of Refugees Drown’ The Independent (Online, 8 May 2017) <>.

165 C-638/16 X and X [2017] ECLI:EU:C:2017:173. cf V Moreno-Lax, Asylum Visas as an Obligation under EU law: X v Belgium, Parts I and II, Migration Law Blog (16 and 21 February 2017) <>.

166 ‘Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime, Sixth Ministerial Conference of the Bali Process on People Smuggling, Trafficking in Persons and related Transnational Crime’ (The Bali Process, 23 March 2016) <> [5].

167 See National Search and Rescue Manual (n 93) para 6.1.1 and MPA section 74.

168 D Ghezelbash, Refuge Lost: Asylum Law in an Interconnected World (Cambridge University Press, forthcoming); cf Klein, N, ‘Australia's Push Back the Boats Policy under International Law’ (2014) 15 MelbJIL 414, 426–7.

169 C Stewart, ‘Law of the Sea versus the Dictates of Canberra’ Weekend Australian (10 March 2012) 19.

170 Legacy Caseload Act sch 1; this act was passed in response to the CPCF litigation examined below at (n 175) and accompanying text.

171 MPA section 22A(1)(a).

172 ibid 22A(1)(c).

173 Refugee Convention, art 33; ICCPR, art 7; CAT, art 3. For a comprehensive analysis, see Wouters, K, International Legal Standards for the Protection from Refoulement (Intersentia 2009). More recently, see Costello, C and Foster, M, ‘ Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test’ (2015) 46 NYIL 273 .

174 MPA section 74.

175 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514.

176 ibid [109], [12].

177 ibid [296].

178 ibid.

179 Chambers, P, ‘The Embrace of Border Security: Maritime Jurisdiction, National Sovereignty, and the Geopolitics of Operation Sovereign Borders’ (2015) 20 Geopolitics 404, 427.

180 A Lloyd, Senate Budget Estimates Briefing Note on AMSA's Role in Search and Rescue Incidents, released in response to an FOI request from H Degan <>.

181 On the notion of ‘EU security’, see European Commission, The European Agenda on Security COM(2015) 185.

182 V Wriedt and D Reinhardt (ECCHR), ‘Opaque and Unaccountable: Frontex Operation Hera’ (Statewatch, February 2017) <>.

183 For similar analyses, see Léonard, S, ‘The Creation of FRONTEX and the Politics of Institutionalisation in the EU External Borders Policy’ (2009) 5 Journal of Contemporary European Research 371 ; Léonard, S, ‘EU Border Security and Migration into the European Union: Frontex and Securitisation through Practices’ (2010) 19 European Security 231 ; and Mungianu, R, ‘Frontex: Towards a Common Policy on External Border Control’ (2013) EJML 359 .

184 EBCGR art 34(1); Frontex, Fundamental Rights Strategy <>.

185 See Pollak, J and Slominski, P, ‘Experimentalist but not Accountable Governance? The Role of Frontex in Managing the EU's External Borders’ (2009) 32 WEurPol 904 ; According to Frontex Regulation (n 30), art 25(2), ‘the European Parliament or the Council may invite [her] to report on the carrying out of his/her tasks’ (emphasis added), but this has been interpreted as not entailing a legally-binding obligation to appear in person for the purpose.

187 Frontex, General Report 2010, <> (emphasis added).

188 EBCGR art 8(3) cf art 74.

189 An initiative has been launched, drawing on the premises of the ‘comprehensive approach’ put forward in Moreno-Lax and Papastavridis (n 33), for the establishment of a Search and Rescue Observatory for the Mediterranean (SAROBMED), through the joint collaboration of SAR NGOs, academics, and other stakeholders, to collate and publicly disseminate data on SAR incidents and interdiction-related events, with a view to combating the lack of transparency and accountability resulting from the securitized approach of the EU <> and <>.

190 For an elaboration regarding the Mediterranean basin, see Coppens, J and Somers, E, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’ (2010) 25 IJMCL 377 ; See also J Coppens, ‘Disembarkation of Migrants Rescued at Sea’ (De Lloyd 29 December 2010) at 15 (Pt I), and 3 January 2011, at 55 (Pt II).

191 See (n 49–52) and related discussion.

192 See Papastavridis (n 49) 221, defining shiprider agreements as: ‘bilateral treaties … where each party is required to designate law enforcement officials to embark on the vessels of other parties in order to facilitate … the exercise of relevant national law enforcement powers within zones of jurisdiction of the former party’. See also Guilfoyle (n 91) ch 8.

193 On the lack of sufficient investment in SAR and post-SAR action, including poor implementation of internal relocation plans for refugees, see Guild, Costello and Moreno-Lax (n 118).

194 Note eg the promise by the EU to pay Turkey several billion Euros in the form of a Refugee Facility as part of their so-called ‘deal’ (n 20).

195 For a detailed account, see Andersson, R, Illegality, Inc.: Clandestine Migration and the Business of Bordering Europe (University of California Press 2014). See also Gammeltoft-Hansen, T and Sorensen, N Nyberg, The Migration Industry: The Commercialization of International Migration (Routledge 2013).

196 Gammelhoft-Hansen, T and Hathaway, JC, ‘Non-Refoulement in a World of Cooperative Deterrence’ (2015) 53 ColumJTransnatlL 235 . See further Gammeltoft-Hansen, T, ‘International Refugee Law and Refugee Policy: The Case of Deterrence Policies’ (2014) 27 JRS 574 ; and Gammeltoft-Hansen, T and Tan, N Feith, ‘Beyond the Deterrence Paradigm in Global Refugee Policy’ (2016) 39 SuffolkTransnatlLRev 637 .

197 Moreno-Lax and Giuffré (n 22).

198 For recent analyses, in this line, of the new EU Partnership Framework, COM(2016) 385, see Moreno-Lax, ‘The Migration Partnership Framework and the EU-Turkey Deal: Lessons for the Global Compact on Migration Process?’ in T Gammeltoft-Hansen et al., What Is a Compact? Raoul Wallenberg Institute Working Paper (10 October 2017) 27 <>; and C Bauloz, The EU Migration Partnership Framework: an External Solution to the Crisis? EU Migration Law Blog (31 January 2017) <>.

199 Other examples include ad hoc agreements to allow EU Member States, particularly Spain, to intercept vessels in the territorial waters of North and West African nations such as Senegal and Mauritania: Papastavridis (n 49) 287; Guilfoyle (n 91) 218–19.

200 ‘Europe is Declaring War on Smugglers’ (n 130).

201 Hirsh, A, ‘The Borders Beyond the Border: Australia's Extraterritorial Migration Controls’ (2017) 36 Refugee Survey Quarterly 48, 75.

202 See, for example, L Cochrane, ‘Vietnamese Asylum Seeker Returned by Australia Says ‘‘A Bullet Would be Better’’’ ABC News (Online, 23 February 2017) <>.

203 For a detailed analysis of the shifting dynamics of this relationship, see Kneebone, S, ‘Australia as a Powerbroker on Refugee Protection in Southeast Asia: The Relationship with Indonesia’ (2017) 33 Refuge 29 .

204 ibid.

205 See, eg, M Bachelard, ‘Australian Navy Turns Back Asylum Seeker Boat to Indonesia after Loading Three Extra People’ Sydney Morning Herald (Online, 6 May 2017) <>; see also Kneebone (n 203).

206 Senate Foreign Affairs, Defence and Trade References Committee, Parliament of Australia, Report: Breaches of Indonesian Territorial Waters (2014).

207 Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Report: Payment of Cash or Other Inducements by the Commonwealth of Australia in Exchange for the Turn Back of Asylum Seeker Boats (2015).

208 G Roberts, ‘Indonesia Believes Australia Made “Illicit Payments” to Crew of People Smuggling Boat, Foreign Ministry Says’ ABC News (Online, 20 June 2015) <‘illicit-payments’-made-to-people-smugglers/6559676>; J Garnaut and M Bachelard, ‘Joko Widodo's Blunt Warning to Prime Minister Tony Abbott’ Sydney Morning Herald (Online, 18 October 2014) <>.

209 Migration Act 1958 (Cth) section 46A; Under section 46A(2) the Minister has discretion to exempt an applicant in the public interest.

210 Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues, signed 3 August 2013; Regional Resettlement Arrangement between Australia and Papua New Guinea, signed 19 July 2013.

211 Opeskin, B and Ghezelbash, D, ‘Australian Refugee Policy and Its Impacts on Pacific Island Countries’ (2016) Journal of Pacific Studies 73 .

212 M Koziol and J Massola, ‘Manus Refugees Given Ultimatum as Turnbull Government Comes under Pressure’ The Age (Online, 30 August 2017) <>.

213 Namah v Pato [2016] PGSC 13; SC1497 (26 April 2016). For analysis, see Dastyari, A and O'Sullivan, M, ‘Not for Export: The Failure of Australia's Extraterritorial Processing Regime in PNG and the Decision of the PNG Supreme Court in Namah (2016)’ (2017) 42 MonLR 308 .

214 M Gleeson, In Focus: Resettlement of Refugees from Nauru to Cambodia (21November 2016) UNSW Kaldor Centre for International Refugee Law <>.

215 M Gleeson, ‘FactCheck Q&A: How Much Was Spent on the Cambodia Refugee Deal and How Many Were Settled?’ The Conversation (Online, 21 November 2016)<>.

216 Whether ‘safe third country’ transfers are in line with international law should, however, not be taken for granted. See, in this regard, Moreno-Lax, V, ‘The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties’ in Goodwin-Gill, GS and Weckel, P (eds), Migration & Refugee Protection in the 21st Century: Legal Aspects – The Hague Academy of International Law Centre for Research (Martinus Nijhoff 2015) 665.

217 ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ASR’), [2001] YILC Vol II (Pt 2), Annex to UNGA Res 56/83, 12 December 2001 (A/56/49(Vol. I)/Corr.4).

218 ASR, arts 16, 17, and 47. See further, Moreno-Lax and Giuffré (n 22).

219 VCLT, art 26 (emphasis added).

220 Goodwin-Gill, GS, ‘The Extraterritorial Processing of Claims to Asylum or Protection: The Legal Responsibilities of States and International Organisations’ (2007) 9 UTSLRev 26, 34.

221 We embrace the material understanding of a treaty as codified in art 2(1)(a) VCLT as: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’ (emphasis added).

222 VCLT, art 30(5).

223 ECtHR, Bosphorus v. Ireland, App 45036/98 (30 June 2005) para 154 (emphasis added).

224 The Righteous of the Mediterranean campaign, promoting the nomination of NGOs and other worthy persons for the 2018 Nobel Peace Prize, has counted ‘more than 60 subjects’ <>.

225 Operation Sophia Report 2016 (n 138) 3, 7–8.

226 Demonstrating the baselessness of this assertion, see E Steinhilper and R Gruijters, ‘Border Deaths in the Mediterranean: What We Can Learn from the Latest Data’ Border Criminologies Blog (8 March 2017) <>.

227 Letter by F Leggeri, Frontex Executive Director, to MEP Miguel Urban Crespo of 21 June 2017, Ref. CAB/EWMO/10434/2017 (on file).

228 See ‘EU Border Force Flags Concerns over Charities’ Interaction with Migrant Smugglers’ Financial Times (Online, 16 December 2016). See also reaction by MSF, ‘Bounties not Bodies: Smugglers Profit from Sea Rescues Though No Clear Alternative Available’ MSF Analysis (23 December 2016) <>.

229 Denouncing ‘fabricated accusations’, see ‘Imaginary Criminals: Sea-Watch considers legal steps against attorney Zuccaro’ Sea Watch Press Release (24 April 2017) <>.

230 A Edmond, ‘Spanish Fire-Fighters Who Saved Lives at Sea Must Not Be Criminalised’ Institute of Race Relations News (18 May 2017) <>; and AL Camilli, ‘All the Accusations against the NGO Jugend Rettet’ Mediterranean Hope (8 August 2017) <>.

231 European Commission, Refit Evaluation of the EU legal framework against facilitation of unauthorized entry, transit and residence: the Facilitators Package (Directive 2002/90/EC and Framework Decision 2002/946/JHA), SWD(2017) 117.

232 See eg S Bellezza and T Calandrino, Criminalization of Flight and Escape Aid Borderline-Europe (March 2017) <>; and C Heller and L Pezzani, Blaming the Rescuers, Forensic Oceanography (2017) <>.

233 Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, supplementing the United Nations Convention against Transnational Crime [2001] 40 ILM 384.

234 See eg S Carrera et al., Fit for Purpose? The Facilitation Directive and the Criminalisation of Humanitarian Assistance to Irregular Migrants, European Parliament Study PE 536.490 (2016).

235 This results from a systematic reading of the Smuggling Protocol in line with the UNTOC, UN Convention against Transnational Organized Crime [2000] 2225 UNTS 209.

236 See UNODC, Model Law against the Smuggling of Migrants (October 2010) 27, referring to the Interpretative notes, A/55/383/Add.1, para 88, and Travaux Préparatoires, at 469 <>. The Travaux are compiled in an e-book <>.

237 See Border Protection Legislation Amendment Act 1999 (Cth); Anti-People Smuggling and Other Measures Act 2010 (Cth) and Deterring People Smuggling Act 2011 (Cth). For analysis of these reforms, see Schloenhardt, A and Craig, C, ‘Prosecutions of People Smugglers in Australia 2011–14’ (2016) 38 SydLR 49, 52–4.

238 Migration Act 1958 (Cth) sections 233A, 233B, 233C and 233D; Criminal Code Act 1995 (Cth) sections 73.1, 73,2, 73.3, 73.3A.

239 ibid.

240 Migration Act 1958 (Cth) section 233C; Criminal Code Act 1995 (Cth) 73.3.

241 Deterring People Smuggling Act 2011 (Cth)

242 Migration Act 1958 (Cth) section 233D; Criminal Code Act 1995 (Cth) section 73.3A.

243 Criminal Code Act 1995 (Cth) section 10.3.

244 This position would be consistent with the supplementary and interpretive material to the Smuggling Protocol which makes it clear that those engaging in humanitarian assistance should be exempt from criminal liability: see (n 235) and accompanying text.

245 Schloenhardt and Craig (n 237).

246 See Steinhilper and Gruijters (n 226); Davies and Neslen (n 83) and (n 226) and accompanying discussion.

247 For an examination of how competitive tendencies influence the development of restrictive asylum policies, see Ghezelbash (n 168).

248 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22.

249 The M/V ‘SAIGA’ (No. 2) Case (Saint Vincent and the Grenadines v Guinea) (Judgment of 1 July 1999) ITLOS Reports 1999 [155]; see also The Arctic Sunrise Arbitration (Netherlands v Russia) (Merits), PCA Case No 2014-02 (UNCLOS Annex VII Arb Trib, 14 August 2015), [197]–[198] (where the Tribunal found that international human rights law can be considered when determining what is a reasonable and proportionate use of force). See Guilfoyle (n 91) 271–2 for an analysis of the interpretation of ‘disproportionate force’ in this context.

250 The M/V ‘Louisa’ Case (Saint Vincent and the Grenadines v Kingdom of Spain) (Judgment of 28 May 2013) ITLOS Reports 2013 [155].

251 See eg Klein (n 6) 787; Moreno-Lax (n 6).

252 J Coppens, ‘Interception of Migrant Boats at Sea’ in Moreno-Lax and Papastavridis (n 33) 221.

253 Proposing a methodology of ‘cumulative standards’ to reconcile human rights, humanitarian law, and refugee law standards that could serve as a template, see Moreno-Lax, VSystematising Systemic Integration: “War Refugees”, Regime Relations, and a Proposal for a Cumulative Approach to International Commitments’ (2014) 12 JICJ 907 .

254 E Lazarus, The New Colossus (1883).

The authors acknowledge the excellent research assistance provided by Rebekah Stevens.


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