Five Questions: On turning back boats

Since 2013, the Australian military has routinely intercepted boats and turned back asylum seekers through Operation Sovereign Borders. Likewise in Europe, since the so-called “refugee crisis” began in 2015, the EU’s Frontex-led Operations Sophia and Triton have also taken a deterrence approach. Recent news reports have tracked the deadly consequences. Dr Violeta Moreno-Lax examines the practices in the Policy Brief, The interdiction of asylum seekers at sea: Law and (mal)practice in Europe and Australia. Here she answers five questions about the legal and practical impacts of turnbacks.

Q 1: Are States such as Australia and the European Union acting unlawfully by sending boats back?

Moreno-Lax: Yes, they are violating key international obligations under refugee and human rights law, as well as the law of the sea.

Although EU countries do not seem to be performing the ‘push-backs’ themselves – in line with the Hirsi judgment of the European Court of Human Rights – their involvement in ‘pull back’ actions by third countries with which they collaborate, such as Libya, has a similar effect.

The Policy Brief highlights the main legal obligations regarding maritime rescue, including searching for and assisting persons in distress and delivering them to a place of safety on dry land, where asylum applications can be processed according to adequate procedural safeguards and judicial oversight standards.

Pushback policies also compromise the right to leave any country, including one's own; the right to life; the right to seek asylum; and the prohibitions of ill treatment, arbitrary detention, and removal to an unsafe country.

Q 2: In Europe, how has the policy of intercepting asylum seekers at sea changed over the past year?

Moreno-Lax: The policy has become increasingly securitised and militarised. This has translated into more secrecy, no accountability, and little democratic oversight of on-sea activities. One especially pernicious effect of the "militarisation turn" has been the criminalisation of the humanitarian assistance provided by several search-and-rescue NGOs, which have been accused of involvement with smuggling and trafficking networks, not least, by the European Union external borders' agency (FRONTEX).

Q 3: Is the EU approach making the journeys more dangerous?

Moreno-Lax: One other very worrisome effect of the "war on smugglers" has been the employment of "shoot-to-kill" policies, which are to target smugglers but also have killed refugees, including a minor, as denounced by the European Ombudsman Emily O'Reilly in a letter to Frontex of September 2016.

The demonisation of asylum seekers is not only illegitimate and disproportionate, but illegal as well – the right to asylum is legally binding under EU law. Such a stance will not "solve" the problem, but simply add to the desperation of increasing numbers, particularly of Syrians, who have been left with no other option but to take the sea to escape violence.

Q 4: Australian and EU policymakers argue that turnbacks save lives, but you disagree. Why?

Moreno-Lax: Interdiction just (temporarily) removes the problem out of (our) sight, but it does not provide a solution to the plight of "boat migrants". As the ground research underpinning the Policy Brief demonstrates, what deterrence achieves is simply a diversion of asylum seekers to other routes, which are characteristically longer and more dangerous. This is why the number of deaths at sea in Europe has increased so much over the last few years. An intensification of deterrence measures has meant a higher death toll.

In reality, so long as the causes forcing people to flee (the so-called "push factors") remain, asylum seeker movements towards safety will continue. Deterrence only diverts those movements to more perilous channels

Q 5: So, what can lawmakers do, if they want to save lives, when – at least in Europe - asylum seekers are increasingly coming by sea?

Moreno-Lax: If the political will to save lives really existed, then governments in both hemispheres would engage in genuine search-and-rescue actions, allowing those rescued to disembark and for-mally seek asylum in their territory. The governments would embrace a comprehensive approach and use their powers of migration control in line with their international legal obligations, offering alternative pathways to ensure safe and legal arrival to Europe and Australia. Humanitarian visas, community sponsorship programmes, and extended resettlement schemes are a much better investment.

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 turnback policy, Turning back boats.
Read the Expert Roundtable Report, Where to from here, which discusses protection at sea.
Listen to the podcast All At Sea, with an expert panel discussing the law, policy and practice of turning back boats in Europe, the United States and Australia.