Boat turnbacks show the growing chasm between EU and Australian policies and international law, and they illustrate the political success of a highly questionable approach to forced movement, writes Violeta Moreno-Lax.
OPINION: On the day US President Donald Trump launched his air strike on Syria almost a month ago, the Australian government touted the 30th turnback of an asylum seeker boat under Operation Sovereign Borders. Australian authorities returned the 25 Sri Lankan nationals aboard the boat, with the co-operation of the Sri Lankan Government.
According to Australia's Immigration Minister, Peter Dutton, "about 765 people on 30 boats have now been returned" since the operation began in late 2013. Yet, at his press conference, he refused to answer a single key question about where or when the boat was intercepted. "The people were returned in March, and that's the only detail that I can provide you at this time," he said. No mainstream media reported the story.
The absence of a political, or even a media, debate on the matter is particularly disturbing considering that boat turnbacks are unlawful under international law, as explained in a new Policy Brief from the Kaldor Centre for International Refugee Law. Nevertheless, Dutton presented Operation Sovereign Borders as an "ongoing success", affirming the government's commitment to "remain absolutely resolute that we won't see new vessels arrive" – disregarding the lethal effect of Australian policy of deterrence, which has so far produced 1,992 deaths since the Tampa affair.
At one level, this should come as no surprise, considering that both major political parties have embraced Australia's "stop the boats" mantra, to the point there is now virtually no argument between them about the adequacy and legality of turnbacks.
However, the policy rests on a thin domestic legal veneer. It does not accord with the UN Convention on the Law of the Sea, the Search and Rescue Convention, the Safety of Life at Sea Convention, the Refugee Convention or the core international human rights treaties. Instead, Australian law concerning turnbacks exploits gaps in those texts and misinterprets key concepts, dubiously expanding Government powers of control to the detriment of the rights of refugees and people seeking asylum. And yet, the turnbacks policy continues.
The EU is following suit. The recent "Malta Declaration" shows that European leaders, too, are "determined … to significantly reduce migratory flows" across the Mediterranean. Though data shows that maritime crossings are clearly linked to refugee movements from some of the world's key hotspots, EU member states have deployed a securitarian, rather than humanitarian, response since the beginning of the so-called "refugee crisis" in 2015.
Operations coordinated by Europe's external frontiers agency (Frontex) focus on border security and migration control, despite the "saving lives" rhetoric used to justify deployments. Operation Triton, for instance, covering the central Mediterranean, does not include a proactive search-and-rescue component. Neither does Operation Sophia, the European military-led mission patrolling the high seas close to Libya, whose objective is to combat migrant smuggling through the identification and "disposal" of smuggling vessels. The short-term effect of these operations has not been to stop the boats, but rather to push maritime flows to the eastern Mediterranean, to the Turkish-Greek route, as the first six-monthly report of Operation Sophia reveals.
There, in the Aegean Sea, Frontex-coordinated Operation Poseidon has been buttressed by two additional measures to counter crossings. The first is the controversial EU–Turkey Statement, which guarantees the readmission of all "irregular migrants" who leave Turkey, including refugees. It also ensures Turkey's co-operation with EU anti-smuggling efforts, including through "pullbacks" of migrant vessels headed to Greece. So far, Turkish President Recep Tayyip Erdogan's regime has readmitted 1487 people and has blocked the exit of most migrants since March 2016, which has resulted in a huge drop of daily arrivals in Greece—from 2500 to just 43—notwithstanding serious human rights concerns.
The second measure is that controls at sea have been reinforced by an anti-smuggling NATO mission — which has no search-and-rescue or border-security mandate. When NATO ships encounter distress situations, their response is apparently to directly return to Turkey all survivors, irrespective of whether those on board face persecution or other serious harm, including illegal removals back to Syria. The effect of this policy has been to displace asylum-seeker movements back to the Libyan–Italian route, as indicated by Operation Sophia's second six-monthly report.
Overall, these policies of containment without protection have had no impact on the total number of maritime arrivals in the EU, which continue at steady levels (now mostly via Italy). More people have died in longer, more dangerous routes.
This demonstrates the futility of pursuing a target of "zero boats". Deterrence policies are costly on several counts. They exact a high cost from the public purse; their high secrecy levels come at the expense of democratic accountability; and there is a terrible human toll for very marginal gains in Government control. Every year sets a new record of fatalities, despite increased surveillance and deterrence resources, reaching the unbearable figure of 46,000 deaths at sea since 2000.
Deterrence policies do not really "save lives". They hamper desperate people fleeing war and persecution from finding safety. But they do not solve the so-called "migration problem"; they compound it.
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 formally seek asylum in their territory. They 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 programs and extended resettlement schemes are a much better investment. They align with states' interests in producing orderly movements and reducing smuggling traffic, while respecting refugees' and asylum seekers' rights.
Instead, turnbacks show the growing chasm between EU and Australian policies and international law. Regrettably, they also illustrate the political success of a highly legally questionable approach to forced movement.
Dr Violeta Moreno-Lax is founding director of the Immigration Law program at Queen Mary University of London. She is a Visiting Scholar at UNSW's Andrew and Renata Kaldor Centre for International Refugee Law.
This opinion piece was first published in The Age.