Barend Vlaardingerbroek: Cutting the crap – dealing with illegal migrants in the Mediterranean

There has been a lot of hand-wringing over the fate of illegal migrants who board flimsy boats or old rust-buckets somewhere on the North African (usually Libyan) coast and set out to sea in the expectation of being ‘rescued’ and taken to Lampedusa or some southern European port, from where they hope to make their way to any of a number of destinations.

Those intent on getting into Britain spend some time at a squatter camp in Caen before getting themselves smuggled in on Channel-crossing lorries. But sometimes these grandiose plans get scuttled and they end up in the drink, sometimes because of the boat capsizing and sometimes because other illegal migrants throw them overboard. (One lot went down in a boat in which they had been locked in the hold last week.)

The Europeans scaled back their ‘rescue’ operations in the hope that this would send a discouraging message to those intending this adventure. However, all that really did was result in an increase in the numbers perishing en route, and now various characters are doing the sackcloth-and-ashes routine.

Archbishop Welby got into the act a couple of days ago telling us to be good little Samaritans and get out there and start scouring the Med for these illegal migrants. He made a point of it being “the law of the sea” to rescue those in distress. So I grabbed my copy of the UN Convention on the Law of the Sea 1982 and checked it out.

The Convention is rather thin on the customary duty to rescue. Article 98 reads in part as follows (my emphasis):

Duty to render assistance

1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:

(a) to render assistance to any person found at sea in danger of being lost;

(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;

(c) …  

2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea ...

“To render assistance” does not necessarily mean taking those persons in distress on board – it can involve technical assistance such as repairing a broken-down engine or providing skilled crew to handle the vessel. Admittedly, this is not usually a viable approach in the context of an old tub that the crew have abandoned, or a mildly glorified inflatable jam-packed with people. The “in so far as such action may reasonably be expected of him” caught my eye too. Is it to be ‘reasonably expected’ that a ship go out of its way to ‘rescue’ people who knowingly and willingly put themselves in the very predicament from which they expect to be ‘rescued’? I say not. And what is an “adequate and effective” search and rescue service – one that provides a shuttle service for tens of thousands of illegal migrants every month? No, I didn’t think so either. The existing service is perfectly ‘adequate’ for dealing with genuine emergencies in the Mediterranean, i.e. those that are not deliberately self-induced.

But alright, let’s say we come across a bunch of these opportunists and they do look like they’re about to make the descent into Davy Jones’ Locker. What now? Take them on board, process them at European port and let them flood into Europe as the good Archbishop would apparently like us to? Article 31 of the Convention Relating to the Status of Refugees 1951 comes into play here:

Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country …

In other words, the onus is on the illegal migrants to prove that they are indeed ‘refugees’, and they should not be allowed to travel where they like in the country (let alone within the EU) until they have convinced the authorities that they are bona fide asylum seekers. That is a tall order given that the overwhelming majority of them are simply economic migrants looking for a better life in Europe – and who paid thousands of dollars each to people-smugglers to put them in a situation where they would need ‘rescuing’ at sea. They couldn’t get in through the front door, so now they’re trying an entry through the back door – and if naïve do-gooders get their way, we’ll be looking at 7-digit annual influxes in no time.

The next Article (Art. 32) enables the host country to expel a refugee on grounds of “national security or public order”. Sounds like a good idea given the breeding grounds that immigrant communities are for jihadis and other terrorists, and I’m sure the good folks of Caen and some other places would have something to say about the “public order” angle.

The Aussies seem to have a lot more sense than the Europeans when it comes to illegal immigration. One provision of the Law of the Sea they have been making use of is Article 33:

Contiguous zone

In [the] contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) …

Any boats that make it to within 24 nautical miles of the coast or baselines can be prevented from entering the territorial sea. The Australians have been towing boatloads of illegal migrants back into the EEZ and they are within their rights to do so if the vessel seems sufficiently seaworthy.

As for the back-door entry trick, they’re wise to that one and any illegal migrants upon being ‘rescued’ are now dumped in PNG where they can remain should they turn out to be genuine asylum seekers. Needless to say, the would-be Aus-bound migrants are not amused, and there have been some horrific scenes at the detention camp in Manus.

Europe should take a leaf from the Aussies’ book and clamp down on this nonsense once and for all. ‘Rendering assistance’ can as easily mean towing or escorting the boats back to the North African coast. They’d be covered under international law by bringing the ‘rescued’ to a nearby port where the local authorities could deal with them.

Enough is enough! As for the Archbishop, I suggest he gets back to counting his beads and leave the running of the real world to people who understand it.

Barend Vlaardingerbroek BSc (Auckland), BA, BEdSt (Queensland), DipCommonLaw, PGDipLaws (London), MAppSc (Curtin), PhD (Otago), is associate professor of education at the American University of Beirut and a regular contributor to Breaking Views on geopolitical and social issues. Feedback welcome at bv00@aub.edu.lb.