Do boat turnbacks stack up? New Kaldor Centre Policy Brief evaluates EU and Australian policies in light of international law

Governments around the world are using militarised border-security missions to turn back asylum seekers at sea, but the strategy does not comply with international law and is not viable over the long-term, according to a new Policy Brief from UNSW’s Kaldor Centre for International Refugee Law.

People seeking protection by boat is not a new phenomenon, and has been common in the Asia-Pacific region since the Vietnamese boat people of the 1970s. What is new, however, is the way governments around the world have responded, especially as the scale and danger of these movements has increased in areas such as the Mediterranean.  

Since 2013, the Australian military has routinely intercepted boats and turned back asylum seekers through Operation Sovereign Borders, a policy carried out under extreme secrecy. Likewise in Europe, since the so-called “refugee crisis” began in 2015, the EU’s Frontex-led Operations Sophia and Triton have taken a deterrent rather than a humanitarian approach. 

In The interdiction of asylum seekers at sea: Law and (mal)practice in Europe and Australia, Dr Violeta Moreno-Lax offers a comparative perspective on EU and Australian practices. The Policy Brief clearly sets out the relevant laws relating to interdiction, search and rescue, and international refugee and human rights protection. 

In doing so, Dr Moreno-Lax details a growing chasm between what international law requires, and the practices employed by Australia and the EU in their responses to refugees who seek protection by boat. 

The Policy Brief outlines why a comprehensive, humanitarian ‘protection-centred vision’ must replace the military-led, border control approaches which dominate EU and Australian policies.

To comply with international law, Europe and Australia should:

• conduct genuine search and rescue missions; 
• avoid direct/automatic returns to countries of origin/transit countries; 
• allow disembarkation so that individual refugee claims can be assessed; 
• embrace a comprehensive approach that accords with international law and obligations, including the right to life, the prohibition on arbitrary detention and the principle of non-refoulement; and
• open up alternative pathways to ensure safe and legal access to Europe and Australia in humane conditions. This would help stop asylum seekers from having to resort to smuggling/trafficking rings; reduce fatalities at sea; and allow for more orderly arrivals. 

Considering the questionable legal basis for turnbacks, the absence of a political, or even a media, debate on the matter is particularly disturbing, Dr Moreno-Lax argues in an opinion piece published today.

To join the discussion, follow #AllAtSea on Twitter and sign up for our free Weekly News Roundup for further updates. 

Read the full Policy Brief, The interdiction of asylum seekers at sea: Law and (mal)practice in Europe and Australia.

Read the Kaldor Centre Factsheet on Australia’s turnbacks policy, Turning back boats, 

Read the Expert Roundtable Report, Where to from here?, which discusses protection at sea. 

Listen to our ‘All at Sea’ podcast with an expert panel, including Dr Moreno-Lax,  Rear Admiral James Goldrick AO, Kaldor Centre Executive Manager Frances Voon and Macquarie University Law Lecturer Dr Daniel Ghezelbash, discussing the law, policy and practice of turning back boats in Europe, the United States and Australia.