Pushbacks at Sea – Migrants and Asylum Seekers in Peril 

Pushbacks at Sea – Migrants and Asylum Seekers in Peril 
Photo 1: Gareth Fuller/PA/ Wire. Thompson, F. (22 September 2021). Pushback to Halt Migrant Boats Only to be Used in Limited Circumstances Official. The Evening Standard.  Photo 2: AP Photo/Matt Dunham. Stevens, R. (9 September 2021). Johnson Government Announces ‘Pushback” Policy in Stepping up of Anti-Immigration Agenda. World Socialist Web Site. https://www.wsws.org/en/articles/2021/09/10/push-s10.html.  Photo 3: Irish Defence Forces. Nakache, D., and Losier, J. (25 July 2017). The European U
Pushbacks at Sea – Migrants and Asylum Seekers in Peril 
Pushbacks at Sea – Migrants and Asylum Seekers in Peril 

Roos Willemijn Craanen

International Justice and Human Rights Researcher

Global Human Rights Defence

Introduction 

With the introduction of the new ‘Nationality and Borders Bill’ (House of Commons 2021) in the United Kingdom (UK), various human rights groups have spoken up about the dangers it poses to migrants and potential asylum seekers at sea (Amnesty International, 2021; Freedom from Torture, 2021). Critics agree that the introduction of this new Bill by Minister Priti Patel, signals that the UK will take a “tough stance” towards irregular migrants (immigration outside the realm of the law and regulations) and asylum seekers (Wallis, 2021; International Organisation for Migrants, n.d.). 

In particular, the decision to introduce ‘push-back’ measures at sea have caused international outrage and surprise (Amnesty International, 2021; Freedom from Torture, 2021; Roberts, 2021). Although the Bill explicitly states that all provisions are in accordance with the European Convention on Human Rights (ECHR), there is significant reason to believe that Minister Patel has erred in judgment (House of Commons, 2021, p. 1; Roberts, 2021). The following post explores the UK’s wish to introduce pushback strategies at sea and the policy’s compliance with international human rights law and the law of the sea. 

What are Pushback Measures ?  

There is currently no internationally agreed upon definition of what ‘pushback measures’ entail (Anadolu Agency, 2021; Human Rights Council, 2021, para. 34).  However, the Special Rapporteur on the Human Rights of Migrants has defined the practice as: “measure(s) taken by states (…) which results in migrants, including asylum seekers, being summarily forced back, without an individual assessment of their human rights protection needs, to the country or territory, or to sea (…) from where they attempted to cross or crossed an international border” (Human Rights Council, 2021, para. 34). In the context of the sea, this often means that boats are forcibly pushed back to the high seas, or to the country from which they originated (Human Rights Council, 2021, para. 34, 36; Kartal, 2021).

The United Kingdom’s position is that it will only engage in pushback strategies in limited circumstances and when it safe to do so (Anadolu Agency, 2021; Gillett, 2014). Other sources report that the pushback strategies will only be used for larger boats and will not apply to small vessels (Stevens, 2021). 

The Scope of Legal Obligations Towards Migrants and Asylum Seekers at Sea 

States have obligations towards individuals that find themselves in their territorial waters or in their ‘Search and Rescue’ zones (European Commission, n.d.).  Although a comprehensive explanation of the law of the sea is beyond the scope of this article, it is important to know the following. Within the territorial waters and the search and rescue zone allocated to a country, a state has the legal duty “to render assistance to any person found at sea in danger of being lost” (Article 98, UNCLOS; Roberts, 2021).” The use of ‘any person’ clearly indicates that this duty extends to non-nationals, which includes migrants and asylum seekers (European Commission, n.d.). As pointed out by Stevens (2021), this inevitably means that if the vessel containing migrants and asylum seekers is in peril (e.g., sinking or nearly collapsing), the UK would have to offer assistance and cannot engage in pushback strategies. 

Moreover, boats have a ‘right of innocent passage’ to enter the UK’s territorial sea under Article 17 of the UN Convention on the Law of the Sea (Roberts, 2021). This means that the state cannot intervene or prevent the boat’s passage to its shores (Hernández 2019, pp. 475-476; Roberts, 2021; Williams, 2014). However, a boat does not have the right to innocent passage when the entrance within the state’s territory is made for the purpose of irregular migration, as that seeks to circumvent the State’s laws (Article 19(2)(g) UNCLOS; Roberts, 2021). This means that irregular migrants can be prevented from entering the country. 

However, asylum seekers who can prove that they have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” may not be punished for illegal entry (Article 1(A)(2) 1951 Refugee Convention; Goodwin & McAdam, 2011, p. 273; Hernández, 2019, p. 191). Henceforth, UNCLOS makes it clear that pushbacks cannot occur without individual status determinations, as otherwise potential asylum seekers would be deprived of the rights granted to them under the 1951 Refugee Convention (Goodwin &McAdam, 2011, p. 273; Hernández, 2019, p. 191.) 

In addition, the need for individual status determinations stems from the principle of non-refoulement (Article 33 1951 Refugee Convention; Lauterpacht & Bethlehem, 2003, p. 114). Codified under article 33 of the Refugee Convention (1951), it specifies that “no (…) state shall expel or return a refugee (…) to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. As pushbacks deny individuals the right to a status determination, they can breach the principle of non-refoulement if the individual is returned to an unsafe country (Lauterpacht & Bethlehem, 2003, p. 114). Therefore, the UK’s wish to curb the number of migrants and asylum seekers entering the country does not release them from their obligation to uphold the principle of non-refoulement (Lauterpacht & Bethlehem, 2003, p. 113). 

International Human Rights Law at Sea? 

Although the United Kingdom has officially left the European Union, it remains a member of the European Court of Human Rights (ECtHR) (Cowell, 2021).Thus, the jurisprudence of the ECtHR and the European Convention on Human Rights remains applicable to the United Kingdom. 

In general, States have human rights obligations towards individuals who find themselves within their territory (Hernández, 2019, pp. 196, 199-202). Although the common understanding of the word may not readily give this away, a state’s territory includes parts of its waters (Article 2 UNCLOS; Hernández, 2019, pp. 199-200). In its territorial sea, the UK is responsible to uphold the human rights of migrants and potential asylum seekers (Goodwin-Gill & McAdam, 2011, pp. 272-273; Hernández, 2019, pp. 199-200). 

However, the human rights protection of migrants and asylum seekers goes further (Roberts, 2021). In the famous Hirsi Jamaa case (paras. 83-158, 178-186; Roberts, 2021) the European Court of Human Rights ruled that pushback strategies at sea – when employed in the absence of individual status determination – can amount to a violation of the right to be free from torture, inhuman and degrading treatment (Article 3 ECHR) and qualifies as ‘collective expulsion’ under Article 4 of the Fourth Protocol to the ECHR. In this case, the potential asylum seekers were sent back to Libya by the Italian authorities without status determination (Hirsi Jamaa v. Italy, paras. 10-12). The Court held that this decision put the applicants at risk of refoulement (Hirsi Jamaa v. Italy, paras. 135-138). Moreover, the Court held that the individuals fell under the country’s jurisdiction because the Italian authorities had exercised direct control over the individuals, even though they were on the high seas (Hirsi Jamaa v. Italy, paras. 77-82). 

When applying these findings to the UK, it is thus irrelevant what the size of the boat is for the legality of pushback strategies. In fact, any pushback strategy without status determination amounts to a violation of Article 4 of the fourth protocol and could potentially violate Article 3 ECHR. Moreover, the level of control the UK authorities have over the potential ship may trigger its human rights obligations even if this is outside its territorial sea or search and rescue zone. 

Conclusion 

Based on the above, there is significant reason to presume that the pushback strategies the UK wishes to implement breach international standards set forth under international human rights law and the law of the sea (Roberts, 2021; Hirsi Jamaa v. Italy, paras. 83-158, 178-186). This article underscores that the country has an obligation to assist migrants and asylum seekers at sea and has a legal duty to assess their individual status (Anadolu Agency, 2021; Gillett, 2021). Although the UK argues that it can engage in pushback strategies, it must at all times uphold the standards set forth under the law of the sea and international human rights law (Roberts, 2021).




References 

Legal Instruments

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR). 

Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention). 

House of Commons. (6 July 2021). Nationality and Borders Bill. UK parliamentary Bills. https://publications.parliament.uk/pa/bills/cbill/58-02/0141/210141.pdf.  

Jurisprudence 

Hirsi Jamaa and Others v. Italy, Application no. 27765/09 (ECtHR, 23 February 2012).  https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-109231&filename=001-109231.pdf. 

Secondary Sources 

Amnesty International. (09 September 2021). UK: Government’s Plan to Push Back Refugees to France is ‘Senseless.’ Amnesty International. https://www.amnesty.org.uk/press-releases/uk-governments-plan-push-back-refugees-france-senseless. 

Cowell, F. (17 January 2021). The Brexit Deal Locks the UK into Continued Strasbourg Human Rights Court Membership. LSE Blog. https://blogs.lse.ac.uk/brexit/2021/01/17/the-brexit-deal-locks-the-uk-into-continued-strasbourg-human-rights-court-membership/. 

European Commission (n.d.). Search and Rescue Zone (SAR). European Commission. https://ec.europa.eu/home-affairs/orphan-pages/glossary/search-and-rescue-sar-operation_en. 

Freedom From Torture (16 April 2021). Everything You Need to Know About Priti Patel’s Anti-Refugee Bill. Freedom From Torture. https://www.freedomfromtorture.org/news/everything-you-need-to-know-about-priti-patels-anti-refugee-bill. 

Gillett, F. (9 September 2021). Channel Crossings: Migrant Boats Could be Turned Back in New UK Move. BBC. https://www.bbc.com/news/uk-58495948. 

Goodwin, G., & McAdams, J. (2011). The Refugee in International Law. (3rd ed.). Oxford University Press. 

Hernández, G. (2019). International Law. Oxford University Press. 

Human Rights Council (12 May 2021). Report on Means to Address the Human Rights Impact of Pushback of Migrants on Land and at Sea UN doc. HRC 47/30. UN General Assembly, Human Rights Council. https://reliefweb.int/report/world/report-means-address-human-rights-impact-pushbacks-migrants-land-and-sea-report-special. 

International Organisation for Migration (n.d.). Key Migration Terms. UN International Organisation for Migration. https://www.iom.int/key-migration-terms. 

Kartal, A, G. (9 September 2021). UK to Deploy Pushback Tactics of Boats Carrying Migrants. Anadolu Agency. https://www.aa.com.tr/en/europe/uk-to-deploy-pushback-tactics-on-boats-carrying-migrants/2359838. 

Lauterpacht, E and Bethlehem, D (2003). The Scope and Content of the Principle of Non-Refoulement: Opinion. United Nations High Commissioner for Refugees. https://www.unhcr.org/publications/legal/419c75ce4/refugee-protection-international-law-scope-content-principle-non-refoulement.html.  

Roberts, H. (14 September 2021). Are the UK’s Maritime Migrant “Pushback” Plans Legal? Maritime Executive. https://www.maritime-executive.com/editorials/are-the-uk-s-maritime-migrant-pushback-plans-legal.

Sandford, A. (10 September 2021). Britain’s plan to Send Migrants Boats Back to France ‘Inhumane’ and ‘Unworkable,’ Critics Say. Euro News. https://www.euronews.com/2021/09/09/uk-france-migrants-row-critics-slam-patel-s-inhumane-and-unworkable-pushback-plan.  

Stevens, R. (9 September 2021). Johnson Government Announces “Pushback” Policy in Stepping Up of Anti-Immigration Agenda. World Socialist Web Site. https://www.wsws.org/en/articles/2021/09/10/push-s10.html. 

Wallis, E. (24 March 2021). UK Government Announces Details of New Plan for Immigration. Info Migrants. https://www.infomigrants.net/en/post/31083/uk-government-announces-details-of-new-plan-for-immigration. 

Williams, S, O. (17 December 2014). Maritime Security: The Concept of Innocent Passage. Maritime Executive. https://www.maritime-executive.com/features/Maritime-Security-Private-The-Concept-of-Innocent-Passage.