The Interdiction of Asylum Seekers at Sea: Law and (Mal) Practice in Europe and Australia

POLICY BRIEF 4
The Interdiction of Asylum Seekers at Sea:

Law and (mal)practice in Europe and Australia
Violeta Moreno-Lax
May 2017
About the author
Dr Violeta Moreno-Lax is Lecturer in Law, founding Director of the Immigration Law programme,
and inaugural Co-Director (2014–2016) and co-founder of the Centre for European and
International Legal Affairs (CEILA) at Queen Mary University of London. She is also a Fellow of the
Centre for European Law of King’s College London, EU Asylum Law Coordinator at the Refugee
Law Initiative of the University of London, Co-Chair of The Refugee Law Observatory, Convener of
the Society of Legal Scholars (SLS) Migration Law Section, as well as member of the Steering
Committee of the Migration Law Network. Since January 2016, she is part of the Editorial Board of
the European Journal of Migration and Law. Before coming to Queen Mary, she was a Lecturer in
Law at the Universities of Liverpool (2012–2013) and Oxford (2011–2012). She has held visiting
positions at the Universities of Macquarie and New South Wales (Kaldor Centre for International
Refugee Law) (2016–2017), Oxford (Refugee Studies Centre) (2010–2012), Nijmegen (Centre for
Migration Law) (2009–2010), and The Hague Academy of International Law (Research Session
2010). She read Law in Murcia (LLB/LLM), European Studies in the College of Europe (MA), and
EU Immigration and Asylum Law at the Free University of Brussels (PG Certificate), before
obtaining her Doctorate in Law from the University of Louvain (PhD). She has published widely in
the areas of international and European refugee and migration law and acts regularly as expert
consultant for the EU institutions and other organisations in the field.
Acknowledgements
I am indebted to Professor Jane McAdam, Frances Voon, and the Kaldor Centre for International
Refugee Law (UNSW) for the opportunity to prepare this policy brief and for very helpful feedback
on an earlier draft. Any errors or omissions remain my own.
The Andrew & Renata Kaldor Centre for International

Refugee Law
The Andrew & Renata Kaldor Centre for International Refugee Law is the world’s first research
centre dedicated to the study of international refugee law. Through high-quality research feeding
into public policy debate and legislative reform, the Centre brings a principled, human rights-based
approach to refugee law and forced migration in Australia, the Asia-Pacific region, and globally.
www.kaldorcentre.unsw.edu.au
The Policy Brief Series

The Policy Brief series showcases high quality, policy-relevant research on issues relating to forced
migration and international refugee law. The views expressed in the Policy Brief represent those of
the author and not the Andrew & Renata Kaldor Centre for International Refugee Law.
Policy Briefs are available online at www.kaldorcentre.unsw.edu.au/publications.
ISSN: 2205-9733 (Print)

ISSN: 2205-9741 (Online)
Contents
Executive summary ................................................................................................................. 1
1 Introduction ...................................................................................................................... 2
2 Background: State practice in Europe and Australia ......................................................... 2
2.1 Europe ...................................................................................................................... 2
2.2 Australia .................................................................................................................... 3
3 Interdiction powers under the law of the sea .................................................................... 3
3.1 Territorial sea: Rights of innocent passage and refuge in port .................................. 4
3.2 Contiguous zone: Rights of police as ‘necessary’ ..................................................... 4
3.3 High seas: Flag State jurisdiction, the ‘right of visit’ and stateless ships ..................... 5
4 Duties of search and rescue at sea .................................................................................. 5
4.1 State obligations: Article 98 of the UNCLOS, SAR and SOLAS Conventions............. 6
4.1.1 Flag State obligations: The duty to render assistance ......................................... 6
4.1.2 Coastal State obligations: The duty to rescue and set up SAR services ............. 6
4.2 Personal scope of application: ‘Any person’ ............................................................... 6
4.3 Territorial scope of application: ‘(Everywhere) at sea’ ................................................ 6
4.4 Content: Notions of ‘distress’ and ‘rescue’ ................................................................. 7
4.5 ‘Place of safety’, disembarkation and termination of SAR operations ......................... 7
5 Intersection with human rights and refugee law obligations .............................................. 8
5.1 Interdiction/rescue and the principle of non-refoulement ........................................... 9
5.2 Interdiction/rescue and the prohibition of arbitrary detention .................................... 10
5.3 Interdiction/rescue and procedural guarantees ....................................................... 11
6 Conclusion: The limitations of current approaches ......................................................... 12
Endnotes ............................................................................................................................... 14
Executive summary
1
The phenomenon of irregular migration by sea or ‘boat migration’ is not new, but it has drawn
significant attention since the Tampa affair in Australia in 2001 and during the so-called
‘migration/refugee crisis’ in the Mediterranean in 2015–2016. Both regions have replaced proactive
search and rescue (SAR) efforts with militarised border security missions, which has had
detrimental effects on those seeking asylum.
This policy brief explores this evolution and critically evaluates policies and practices of deterrence
at sea against the standards set by international law. It considers:
 State powers of interception, as regulated by the law of the sea for the different maritime
zones, in particular as they relate to flagless (migrant) vessels;
 The duties of SAR for flag and coastal States, clarifying notions of ‘distress’, ‘rescue’,
‘disembarkation’ and ‘place of safety’ as applied to asylum seekers;
 The interaction of State obligations under the law of the sea with their obligations under
human rights and refugee law, especially with respect to the principle of non-refoulement,
non-arbitrary detention and due process guarantees, as well as issues of extraterritoriality
and ‘effective control'.
The policy brief concludes that current strategies in Europe and Australia are not viable in the long
term. It recommends that both regions abandon practices of containment without protection,
engage in genuine SAR actions, and embrace a comprehensive approach to ‘boat migration’ that
conforms with States’ international legal obligations and the rights of refugees and migrants.
It specifically argues that States should:
 Conduct genuine SAR missions, instead of interdiction/deterrence operations, to comply

with their obligations relating to the right to life and related responsibilities underpinning the
SAR regime;
 Take account of the individual circumstances of each asylum seeker encountered at sea,
avoiding direct/automatic returns before considering the conditions required for their
safety and respect for their rights;
 Allow disembarkation of those rescued and permit access to their territory for the
purposes of refugee status determination, as this is the only solution capable of
guaranteeing that any subsequent removal to a third country is safe;
 Embrace a comprehensive approach, in which law of the sea obligations are

interpreted in accordance with international refugee law and human rights law, in
particular the right to life, the prohibition on arbitrary detention and the principle of
non-refoulement;
 Open up alternative pathways to ensure safe and legal access to Europe and Australia
in humane conditions, thus avoiding asylum seekers having to resort to
smuggling/trafficking rings, reducing fatalities at sea, and allowing for more orderly arrivals.
POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

LAW AND (MAL)PRACTICE IN EUROPE AND AUSTRALIA 1
1 Introduction
The phenomenon of ‘boat migration’ has a long history. Movements of refugees across the ocean
include the Vietnamese ‘boat people’ in the 1970s and 1990s; Haitians and Cubans in the
Caribbean since the early 1980s; Albanians escaping the Hoxhaist regime via the Adriatic Sea in
the 1990s; and a range of movements in the 2000s, including Ethiopians and Somalis crossing the
Gulf of Aden, Afghans and Sri Lankans crossing the Bay of Bengal, Sub-Saharan Africans crossing
the Strait of Sicily, Iraqis crossing the Aegean Sea, and most recently Syrians traversing the
2
Mediterranean. What is new today is the scale and the danger of these movements, and the nature
3
of responses by destination countries.
The increasingly securitised and militarised measures to counter maritime flows adopted by
European Union (EU) Member States and Australia, among others, appear misplaced when
considering the type of movements that occur. Overreliance on interdiction powers, which go
beyond what is permitted under the law of the sea (section 3), coupled with a selective approach
towards rescue obligations and human rights and refugee law standards operating at sea (sections
4 and 5), compound rather than resolve the situation. These approaches arguably overstep the
limits of State sovereignty to the detriment of international protection for refugees and other
vulnerable migrants (section 6).
2 Background: State practice in Europe and Australia

4
Since 2000, 46,000 asylum seekers and migrants have drowned, mostly in the Mediterranean. This
is despite the fact that this stretch of water is the most heavily surveyed and among the most
5
tranquil in the world. The Australian Border Deaths Database has documented 1,992 deaths
6
between 2000–2017 connected to Australia’s migration control policies. In both scenarios, the
countries of origin of boat arrivals are typically war-ravaged, refugee-producing regimes.
Consequently, although the flows are mixed (i.e. composed of different categories of migrants), 80–
7
90% are asylum seekers and belong to the top-10 nationalities of the world’s refugees. In other
words, the majority are likely to have international protection needs which remain unaddressed
8 9
when turnback and interdiction policies are used.
2.1 Europe
Even though sea crossings are clearly linked to refugee movements, especially from Syria, Eritrea,
10
Afghanistan and Iraq, since the beginning of the so-called ‘refugee/migration crisis’ in 2015, EU
11
Member States have deployed a securitarian, rather than humanitarian, response.
Operations coordinated by the external frontiers agency (Frontex), renamed the European Border
12
and Coast Guard in 2016 (EBCG), have taken over national SAR initiatives, such as the Italian
Mare Nostrum mission in the Strait of Sicily, which rescued more than 140,000 migrants in distress
13
at sea between October 2013 and October 2014. Frontex’s subsequent substitute mission,
Operation Triton, has only partially replaced Mare Nostrum, as its focus is on border security and
14
migration control and does not include a proactive SAR component.
Operation Triton has been supported by a military operation, the European Union Naval Force
15
Mediterranean (EUNAVFOR Med) Operation Sophia, whose objective is to combat smuggling and
trafficking through the Central Mediterranean. Its role is not only to identify smuggling vessels, but
also to capture and dispose of them pursuant to a United Nations (UN) Security Council Resolution
16
covering use-of-force activities on the high seas. The idea is to ‘deter’ irregular border crossings,
17
without giving much attention to the ‘push factors’ underpinning such movements.

2 LAW AND (MAL)PRACTICE IN EUROPE AND AUSTRALIA
On the Aegean Sea, Frontex-led Operation Poseidon has been buttressed by two additional
18
measures. First, the EU–Turkey Statement guarantees the readmission of all ‘irregular migrants’
who have left Turkey, including refugees, and ensures Turkey’s cooperation with EU anti-smuggling
19
efforts, including through ‘pullbacks’ of migrant vessels headed to Greece. So far, Turkey has
readmitted 1,487 people and blocked the exit of most migrants since March 2016. This has resulted
20 21
in a huge drop of daily crossings from 2,500 to just 43, notwithstanding human rights concerns.
Secondly, controls at sea have been reinforced by a NATO mission ‘tasked to conduct
22
reconnaissance, monitoring and surveillance of illegal crossings in the Aegean’. As the mission
lacks a specific SAR or border control mandate, when encountered with distress situations, it
apparently rescues and (directly) returns to Turkey all survivors, irrespective of non-refoulement and
23
related guarantees.
2.2 Australia
In Australia, there have been far fewer boat arrivals than in Europe, with just over 60,000 landings
since 2000, including a peak in 2013 of 20,719. Progressively, the number has been reduced to
24
virtually zero.
Boat deterrent initiatives started in late 2001 after the Tampa incident, through a policy known as
25
the ‘Pacific Solution’. The Tampa was a Norwegian-registered container ship that rescued 438
asylum seekers within the SAR region of Indonesia, but closer to Christmas Island (part of
Australia). When permission to disembark was requested, Australia considered it to be Indonesia’s
responsibility, entering into a diplomatic standoff, during which time the Tampa remained at sea. It
was eventually boarded by Australian military officials, and following hasty agreements with Nauru
and Papua New Guinea (PNG), the asylum seekers were taken there to ‘offshore’ detention
26
centres.
The incident led to the adoption of domestic legislation through which Australia has ‘excised’ its
territory for immigration law purposes, such that no valid asylum claim can be made by irregular
entrants (the fiction created is they have not entered Australia in a legal sense). Instead, they are
directly taken to third countries declared safe, such as Nauru and PNG, where Australia has funded
detention centres. Those found to be refugees are denied settlement in Australia, and must remain
27
in Nauru or PNG or be resettled elsewhere (with very few viable options forthcoming).
Maritime interdictions were initially carried out under Operation Relex (2001–2007), with Operation
Sovereign Borders commencing in September 2013 when the policy of turning back boats was
28
reintroduced after a hiatus between 2008–2012. As a military-led border security operation,
29
Operation Sovereign Borders focuses on deterrence, interception and forcible turnbacks of boats.
According to government figures, as at early April 2017, 30 boats carrying approximately 765
people had been turned back at sea or otherwise returned to their country of departure since
30
Operation Sovereign Borders commenced. The operations have been shrouded in secrecy, as the
31
government’s policy is not to provide information routinely about ‘on-water’ matters. Reports from
media and civil society organisations suggest that turnbacks by Australia have involved a range of
32
risks to the safety of passengers and crew, both in the course of operations and upon return.
3 Interdiction powers under the law of the sea

Both Australia and the EU have regulated interdiction at sea in domestic/regional law, vesting
extensive powers on warships to counter infringements of immigration law. In the EU, the Maritime
33
Surveillance Regulation (MSR) establishes the rules applicable to Frontex-coordinated operations,

authorising Member States to stop, board, search and seize a vessel, to order it to alter its course
34
or even to conduct it to a third country. In Australia, the Maritime Powers Act 2013 (Cth) (MPA)
allows similar action.
35
Yet, under international law, the UN Convention on the Law of the Sea (UNCLOS) —to which
36
Australia, the EU, and all its Member States are bound —imposes important limits on interdiction
powers, as detailed below.
3.1 Territorial sea: Rights of innocent passage and refuge in port

Coastal States have sovereignty over the 12 nautical miles from their baselines, described as the
37
‘territorial sea’. They are permitted to exercise control there, but do not have unlimited powers.
According to article 17 of the UNCLOS, vessels of all countries enjoy a right of innocent passage
through the territorial sea, which includes stopping or anchoring when rendered necessary by
38
distress or to render assistance, among other things.
According to article 19 of the UNCLOS, passage is not innocent when it is prejudicial to the peace,
good order or security of the coastal State. In particular, it may be rendered non-innocent if a vessel
loads or unloads persons ‘contrary to the … immigration … laws and regulations of the coastal
39
State’, which is what Australia and EU Member States tend to rely on to curtail traffic. Determining
exactly when passage becomes non-innocent is, therefore, crucial to establishing whether
Australian and EU practice conforms with international law, as it is only in such cases that they are
40
allowed to take ‘the necessary steps … to prevent passage’. What these ‘necessary steps’ entail
is then limited by article 27 of the UNCLOS, which excludes the exercise of criminal jurisdiction
during passage, except in the cases explicitly listed (which do not contemplate ‘boat migration’ as
such).
Some authors suggest that ‘[t]he fact that a vessel may be carrying … asylum seekers who intend
to request the protection of the coastal State arguably removes that vessel from the category of
41
innocent passage’. Others note that seeking asylum actually ‘accords with international law’,
although recognise that, in some cases, ‘passage with asylum seekers aboard may be non-
42
innocent’. Still others submit that unless there is actual ‘loading’ or ‘unloading’ of persons in
43
breach of immigration regulations, article 19(1) of the UNCLOS should not apply. The fact that
article 31 of the Refugee Convention explicitly states that refugees must not be penalised for
unauthorised entry, and that States are bound to interpret anti-smuggling/anti-trafficking provisions
as subject to refugee law (see section 3.2), reinforces this interpretation. Thus, the mere fact that a
person may request asylum does not render their passage non-innocent by default.
More generally, ‘distress’ provides an exception to coastal State control over territorial waters,
independent of immigration/asylum considerations. Faced with a situation of danger, vessels
transiting (or on the verge of) the territorial sea have a right to seek refuge in adjacent ports as a
44
matter of customary law, particularly when there is ‘a well-grounded apprehension of the loss of
45
the vessel … or of the lives of the crew’. Refusing access to port in these circumstances would
46
ignore ‘elementary considerations of humanity’. Therefore, practices of retention at, or ejection
from, territorial waters in this situation infringe international law.
3.2 Contiguous zone: Rights of police as ‘necessary’

In the contiguous zone, which extends an extra 12 nautical miles beyond the territorial sea, the
47
coastal State enjoys ‘a limited right of police’. This area does not fall within its exclusive power
48
and, for most purposes, counts as part of the high seas. In fact, article 33(1) of the UNCLOS
allows the coastal State to exercise only such control as is ‘necessary to prevent [the] infringement

of its … immigration … regulations within its territory or territorial sea’, which requires proportionality
49
in each individual case.
Contrary to what Australia and EU Member States appear to assume, it is not obvious that powers
of detention, escort to port or forcible return are encompassed within the meaning of this
50
provision. Rather, the ‘necessary’ power to control does not seem to include any of these,
‘because at this stage (i.e. that of a ship coming into the contiguous zone) the ship cannot have
51
committed an offence’. In addition, it should be borne in mind that every exercise of jurisdiction in
52
this zone remains subject to ‘other rules of international law’, including refugee law and human
rights law.
3.3 High seas: Flag State jurisdiction, the ‘right of visit’ and
stateless ships
In the high seas, freedom of navigation reigns and, as a rule, vessels are only subject to the
53
authority of their flag State. Other States may exercise power in very limited cases only, as
54
exhaustively listed in UNCLOS.
In the case of stateless/flagless ships encountered on the high seas, which are those routinely used
55
by asylum seekers, all States enjoy a ‘right of visit’. This entails a right to approach and board the
vessel to verify its nationality. But whether or not additional powers of ‘arrest’ or ‘interdiction’ are
included remains controversial. Most authors consider this is not the case, ‘[e]xcept where …
56
[expressly] conferred by treaty’. Also, the fact that visit and enforcement powers have been
regulated in separate clauses in UNCLOS (e.g. with respect to piracy or unauthorised
57
broadcasting ) suggests that the right of visit concerning flagless ships does not imply wider
58
enforcement prerogatives.
‘Seizure’, for instance, assumes that a crime has been committed on the high seas. Mere navigation
by asylum seekers is not considered as such a crime under international law. However, where a
vessel is engaged in the ‘transport of slaves’, in human trafficking, or in migrant smuggling, the
59
approach adopted under the various international treaties is inconsistent. Slave trade, under
articles 99 and 110 of the UNCLOS, attracts only a right of visit. The slavery conventions do not
60
provide for interdiction powers either. The UN Trafficking Protocol provides for cooperation to
61
prevent and combat trafficking and to protect the victims thereof. It is only the UN Smuggling
Protocol that allows for ‘appropriate measures’ to be taken where ‘evidence confirming suspicion’ of
62
migrant smuggling is found, but these must take account of ‘the other rights, obligations and
responsibilities of States and individuals under international law, including … international human
63
rights law … the 1951 Convention … and the principle of non-refoulement’.
Therefore, contrary to what European and Australian legislators appear to assume, actions such as
seizing a vessel and apprehending those on board; ordering a vessel to modify its course; or
conducting a vessel or those on board to a third country or handing them over to the authorities of a
64
third State, do not follow from the terms of the applicable treaties. The fact that asylum seeker
boats may be flagless does not allow for unlimited enforcement powers.
4 Duties of search and rescue at sea

Rescue-at-sea has sometimes been used by destination countries as an excuse for boarding
flagless vessels, enabling them to intervene beyond the limits of their interdiction powers under
65
UNCLOS, with motives other than, or additional to, the preservation of human life. However, the

duty to render assistance, as a core principle of the law of the sea, has a distinct purpose which is
different from interception.
4.1 State obligations: Article 98 of the UNCLOS, SAR and SOLAS

Conventions
A number of treaties specify several elements of the duty to rescue, including the UNCLOS, the
66
1974 Safety of Life at Sea Convention (SOLAS Convention), and the 1979 Search and Rescue
67
Convention (SAR Convention). These impose obligations both on flag States and coastal States.
4.1.1 Flag State obligations: The duty to render assistance
Article 98(1) of the UNCLOS provides that ‘[e]very State shall require the master of a ship flying its
flag … to render assistance to any person found at sea in danger of being lost’ and ‘to proceed with
all possible speed to the rescue of persons in distress’. The obligation is not absolute and depends
on whether the master ‘can do so without serious danger to the ship, the crew, or the passengers’.
The SOLAS Convention contains a similar duty, but it again depends on the master’s ‘position to be
68
able to provide assistance’.
Australian and European approaches do not foster compliance with this obligation. Rather than
prosecuting shipmasters for failing to provide help, they instead tend to threaten them with (or
69
press) charges for facilitating irregular entry of rescued asylum seekers.
4.1.2 Coastal State obligations: The duty to rescue and set up SAR services
The obligations imposed on coastal States are more stringent and include a positive duty to ensure
70
coast-watching and rescue around their shores. ‘These arrangements shall include the
establishment, operation and maintenance of such [SAR] facilities as are deemed practicable and
71
necessary’ to proactively guarantee preparedness in cases of distress. The SAR Convention
additionally provides for inter-State coordination of SAR services and for the delimitation of SAR
72
regions, so as to cover all areas of the world.
This clarity in law is in contrast to the recurrent conflicts in practice where there are overlapping
SAR regions (such as the Greek and Turkish regions in the Aegean) or where safe ports are closer
to a non-SAR region coastal State (as in the Tampa case). The elimination of proactive SAR
endeavours and their replacement with border security missions, as in the Mediterranean or through
Operation Sovereign Borders, is also at odds with these positive obligations of coast-watching and
proactive rescue.
4.2 Personal scope of application: ‘Any person’

The personal scope of application of the SAR obligation is universal. It benefits ‘any person’ found
73
in distress at sea, including ‘everybody, even though an enemy’, regardless of nationality or legal
74
(including immigration) status. Discrimination on account of other circumstances is also
75
prohibited.
4.3 Territorial scope of application: ‘(Everywhere) at sea’

76
In regard to its territorial ambit, the SAR obligation applies ‘throughout the ocean’, unlike powers
of interdiction whose exercise is subordinated to limitations (depending on maritime jurisdictional
areas). The use of the generic term ‘at sea’ in article 98 of the UNCLOS supports this
77
interpretation.

4.4 Content: Notions of ‘distress’ and ‘rescue’
The content of the SAR obligation is the most controversial on account of the potential flexibility of
the core notions of ‘distress’ and ‘rescue’, discussed below. This creates inconsistences in practice
78
and has led to episodes of non-compliance, with boats ‘left to die’ on more than one occasion.
The notion of ‘rescue’ relates to the ‘operation to retrieve persons in distress, provide for their initial
79
medical or other needs and to deliver them to a place of safety’, which, in turn, requires further
specification (see section 4.5 below).
However, since rescue is contingent on ‘distress’, the definition of that term is central to the SAR
response. ‘Distress’ is defined as ‘a situation wherein there is a reasonable certainty that a person,
a vessel or other craft is threatened by grave and imminent danger and requires immediate
80
assistance’. Further nuance has been provided in case law, which characterises ‘distress’ as not
requiring instant or overwhelming physical peril, like a vessel taking on water or being ‘dashed
81
against the rocks’. The focus is on the prospect of danger, not on harm that has already occurred
or is about to occur. As such, unseaworthiness could per se entail distress and trigger SAR
82
obligations.
The definition in the EU MSR warrants this conclusion. The text distinguishes between the ‘phase of
uncertainty’, where a person/vessel is reported missing or overdue; the ‘phase of alert’, where
attempts to establish contact have failed or the operating efficiency of the vessel is impaired; and
the ‘phase of distress’, where the need for assistance is determined by a number of elements,
including the seaworthiness of the vessel, so that ‘the existence of a request for assistance … shall
83
not be the sole factor’.
84
By comparison, the Australian SAR Manual is less detailed. A ‘maritime SAR incident’ is said to
exist when any of the following conditions exist: a vessel has requested assistance, a vessel has
sent a distress signal, or it is obvious that a vessel is in distress because it has gone missing, has
been reported to be sinking/have sunk, has been/is about to be abandoned, has its operating
85
efficiency seriously impaired, or the crew/passengers are in the water. Like the EU MSR, the
86
Manual also distinguishes the phases of ‘uncertainty’ and ‘alert’ in similar terms. Yet, by contrast,
‘distress’ is considered to occur when a vessel requires ‘immediate assistance’ resulting from ‘grave
87
or imminent danger’. So, unlike a ‘reasonable certainty’ of a threat, as per the SAR Convention,
the Manual requires that a person be (already) ‘threatened’ for ‘distress’ to materialise, which has at
88
times delayed, if not pre-empted, the SAR response.
4.5 ‘Place of safety’, disembarkation and termination of SAR

operations
As a result of repeated episodes of non-compliance with SAR obligations and frequent
89
disagreement over disembarkation, the SAR and SOLAS Conventions have been amended and
90
the content of the duty to rescue further clarified.
Since July 2006, the State responsible for the SAR region in which assistance is rendered must
exercise ‘primary responsibility’ to ensure the necessary cooperation for survivors to be ‘delivered to
91
a place of safety’. Although the duty is limited to ensuring collaboration, the amendments
nonetheless require a specific outcome to be achieved, namely that the survivors are ‘effectively
disembarked’. This means that, contrary to growing (mal)practice, SAR operations can only be
considered to terminate upon disembarkation on dry land at a place that can be considered safe. As
a result, Australia’s practice of returning vessels to the edge of the territorial waters of the location
from which they departed—be it on the original vessel, an orange lifeboat, or another vessel—does

not conform to this standard, whether or not the passengers have been provided with lifejackets,
92
fuel or other supplies.
Although neither the ‘place of safety’ nor the concept of ‘safety’ itself has been defined in SAR or
SOLAS, the amendments clearly indicate that both ‘the particular circumstances of the case and
[the] guidelines developed by the [International Maritime] Organization’ have to be taken into
93
account. According to the International Maritime Organization (IMO) Guidelines, a ‘place of safety’
is:
a location where rescue operations are considered to terminate … [A] place where the
survivors’ safety of life is no longer threatened and where their basic human needs … can be
94
met.
This, however, does not amount to designating a default port of disembarkation – whether the next
95 96 97
port of call, the port geographically closest or one within the SAR region country. Instead, it is
left to the States involved to come up with an appropriate solution in the circumstances.
98
This is a significant gap. To (partially) fill it – and then only in the context of to Frontex-coordinated
operations – the EU MSR stipulate that the operational plan of each Frontex-led mission must
contain the ‘modalities for the disembarkation of the persons intercepted or rescued’, foreseeing
three alternatives: disembarkation in the coastal Member State hosting the operation, when
interdiction occurs in its territorial waters or contiguous zone; disembarkation at the place
designated by the Rescue Coordination Centre (in cooperation with the host and participating
Member States), in the case of SAR events; or disembarkation in ‘the third country from which the
99
vessel is assumed to have departed’, if interdiction happens on the high seas. This last option is
the one preferred by the EU legislator – it is only ‘if that is not possible’ that disembarkation should
100
be arranged ‘in the host Member State’ – but poses compatibility problems with States’ non-
refoulement obligations. Its succinct formulation appears to imply that disembarkation can be
arranged in a third country by default, contrary to the need to consider the individual circumstances
of each asylum seeker concerned (and the general situation prevailing in the disembarkation
country) (see section 5.1 below).
In terms of Australia, the SAR Manual only includes guidance on the conclusion of ‘search’ action,
101 102
but not on ‘rescue’ itself (which is defined reproducing the SAR Annex terms). Otherwise, there
103
is no further indication of what ‘safety’, ‘place of safety’ or ‘disembarkation’ mean. Instead,
practice reveals that asylum seekers are either turned back at sea, or taken to Nauru or PNG for
104
processing.
5 Intersection with human rights and refugee law

obligations
The notion of ‘safety’ has no single meaning and the arrangements made for some asylum seekers
may not be appropriate for others, given their individual circumstances and the general situation in
the country of disembarkation. One advantage of the absence of a precise definition of ‘place of
safety’ is that it allows for tailored responses, ‘taking into account the particular circumstances of the
105
case’, alongside ‘other rules of international law’ (in conformity with which the law of the sea is to
106
be construed).
Those ‘particular circumstances’, as spelt out in the IMO Guidelines, ‘may include factors such as
the situation on board the assisting ship, on scene conditions, medical needs, and availability of
107
transportation or other rescue units’. The reality is that ‘[e]ach case is unique, and selection of a

108
place of safety may need to account for a variety of important factors’, including, above all,
109
individual rights. As underlined in the IMO Guidelines, ‘[t]he need to avoid disembarkation in
territories where the lives and freedoms of those alleging a well-founded fear of persecution would
110
be threatened is a consideration in the case of asylum-seekers and refugees recovered at sea’.
Therefore, ‘States cannot circumvent refugee law and human rights requirements by declaring
111
border control measures … to be rescue measures’. Removal elsewhere without prior
assessment of each individual’s situation is not ‘rescue’. Launching maritime operations with the
112
objective of ‘stopping the boats’ and/or ‘[preventing] migrants from leaving the shores [of a third
113
country]’ constitutes a misconception of SAR duties. Equating interdiction to SAR and
disconnecting it from attendant human rights implications does not have support in international
law. In the same way, disembarkation in a pre-determined place—such as Turkey/Libya or
Nauru/PNG—disregarding the particular conditions of the case at hand, may not only amount to a
direct breach of a State’s protection obligations, but may also entail a bad faith implementation of
the law of the sea itself.
5.1 Interdiction/rescue and the principle of non-refoulement

Interdiction measures, such as those allowed under Frontex regulations and Australian law, need to
comply with the principle of non-refoulement (among others) and protect survivors from any action
that exposes them to a well-founded fear of persecution or a real risk of serious harm. This covers
instances of ‘chain’ or ‘indirect refoulement’ via intermediary countries (such as returns via Turkey
114
or Indonesia).
The prohibition of refoulement is key to the international protection system and is considered part of
115
customary international law (thus binding all States independently of explicit treaty commitments).
Consequently, provisions like section 22 of the MPA, according to which maritime enforcement
powers can be exercised under Australian law without consideration of Australia’s international
protection obligations, are in direct defiance of this prohibition. Basic tenets of international law
require States to honour their international commitments in good faith. They are specifically banned
116
from invoking the provisions of their internal law as a justification for failure to do so.
International human rights and refugee law protections apply within the territory of the State
concerned, but they may also have extraterritorial application. So long as affected individuals come
within a State’s ‘jurisdiction’, that State will have an obligation to ‘ensure’ that the relevant rights are
117
guaranteed. As such, and notwithstanding the Refugee Convention’s silence about its
extraterritorial reach, there is general consensus that ‘the ordinary meaning of refouler is to drive
118
back, repel, or re-conduct, which does not presuppose a presence in-country’, thereby supporting
the view that article 33(1) of the Refugee Convention includes rejection at the border, in transit (or
‘excised’) zones, as well as (anywhere) at sea. The same applies with respect to the non-
refoulement obligation in article 3 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR), article 7 of the International Covenant on Civil and Political
Rights (ICCPR), and article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), all of which prohibit exposure to a real risk of ill-
119
treatment in whatever circumstances.
As a result, whether interdiction takes the form of contact actions (such as seizing, towing, boarding
and returning a vessel, or handing people over to third countries) or contactless measures
120
(including warning, blockading, re-routing or ordering a change of course) is immaterial. In so far
as ‘the effect’ of the measure concerned—whatever its name or form—‘is to prevent migrants from
reaching the borders of the [would-be host] State’, exposing them to serious harm, the prohibition
121
will be engaged. The establishment of ‘effective control’, whether through ‘active’ or ‘passive’

steps, is what counts as an exercise of ‘jurisdiction’, giving rise to international responsibility under
122
human rights law. Thus, direct returns to Turkey by NATO units, or to Sri Lanka, Vietnam, or the
edges of Indonesian waters under Operation Sovereign Borders, for instance, as well as indirect
enforcement of migration/border controls through maritime blockades, as in Operation Sophia, are
incompatible with the prohibition on refoulement.
The EU MSR provides specific coverage in this respect, with article 4 explicitly stating that:
No person shall … be disembarked in, forced to enter, conducted to or otherwise handed

over to the authorities of a country where … there is a serious risk [of] … inhuman or
degrading treatment or punishment, or where … life or freedom would be threatened on
account of … race, religion, nationality, sexual orientation, membership of a particular social
group or political opinion … or from which there is a serious risk of an expulsion…to another
country in contravention of the principle of non-refoulement.
No particular territorial limitation is contemplated. Rather, the principle seems to apply to any
Frontex-led mission, whether undertaken in territorial waters, the contiguous zone of the host
Member State or on the high seas.
5.2 Interdiction/rescue and the prohibition of arbitrary detention

In addition to the requirement that interdiction (or rescue) actions must not to amount to
refoulement, intermediary stages of interception/SAR operations may also raise other human
rights/refugee law issues. If those rescued are arbitrarily held at sea or in offshore facilities under
the ‘effective control’ of Australia or the EU Member States, a count of unlawful detention may
123 124
ensue, in violation of the right to liberty.
As noted earlier, both EU and Australian rules allow for stateless vessels presumed to be engaged
in migrant smuggling to be stopped and boarded, and for the persons on board to be
125
apprehended. This is intended to be, at least in the European case, ‘in accordance with the
126
Protocol against the Smuggling of Migrants’. However, the Smuggling Protocol does not regulate
the conditions under which smuggled migrants can be detained. It provides merely for the State
127
concerned to take ‘appropriate measures’ if evidence is found confirming suspicions.
In Medvedyev, the European Court of Human Rights held that a similar ‘appropriate measures’
clause in the Convention against Illicit Traffic in Narcotic Drugs was inadequate to serve as basis for
128
detaining people on the high seas who were suspected of drug trafficking. The provision did ‘not
129
afford sufficient protection against arbitrary violations of the right to liberty’. Like article 8(7) of the
UN Smuggling Protocol, article 17 of the Convention against Illicit Traffic in Narcotic Drugs merely
allows the intervening State to ‘take appropriate measures’, without explicitly authorising detention
and establishing the conditions under which it may occur. The provision also fails to indicate related
130 131
guarantees of due process and judicial protection. Following the principle of legal certainty, the
court therefore concluded that the clause was insufficient to justify deprivation of liberty.
With regard to asylum seekers apprehended at sea, an additional factor must be noted. Not only
does the Smuggling Protocol fail to regulate detention, but it specifically requires that a general
distinction be made between victims of smuggling and its perpetrators. Whereas the Protocol
132
provides for ‘the prevention, investigation and prosecution’ of smuggling crimes, the victims
133
thereof must be the object of ‘protection and assistance’, in line with States’ ‘obligations under
134
international law’. Thus, simply declaring that ‘restraint is not arrest’, as in the Australian case,
135
will not suffice to exclude responsibility.

5.3 Interdiction/rescue and procedural guarantees
Where individual rights are at stake, a series of related procedural guarantees are also applicable.
Besides the need for judicial oversight of any deprivation of liberty, as indicated above, detention is
only justifiable if, in the individual case, it is ‘necessary in all the circumstances’—not merely
‘reasonable’ or ‘convenient’ to public policy or national security—and is open to challenge by the
136
individual concerned. This is so ‘even if [attempted] entry [is] illegal’. The Australian approach to
137
mandatory detention is therefore untenable as a matter of international law.
The conditions of detention must also be adequate, otherwise they may amount to inhuman or
138
degrading treatment. This is implicit in article 3 of the ECHR and explicit in article 10 of the
ICCPR, which requires that all detained persons ‘be treated with humanity and with respect for the
inherent dignity of the human person’. This entails a ‘positive obligation’ of care, with which
139
compliance is obligatory irrespective of ‘the material resources available’. Detention that does not
provide for a person’s essential needs, the opportunity to contact family or counsel, and adequate
140
medical attention is incompatible with this obligation.
Regarding the principle of non-refoulement (including instances of indirect/chain refoulement), the

only adequate manner in which to determine whether an individual can be safely sent elsewhere is
to establish first that his or her life or freedom will not be threatened in the destination country,
either due to lack of adequate protection there or because of insufficient procedural safeguards
141
against onwards removal somewhere else. The Refugee Convention thus requires States to
142
assess whether people have protection needs through an individual examination of each case.
143
The same applies under international human rights law. To preserve the effectiveness of the
144
principle, access to dedicated status determination procedures must be legally and practically
feasible. Compliance with tight time limits and other such requirements must not frustrate this
145
guarantee.
Indirect refoulement (via agreements with third countries, such as in the Hirsi case, which provided
146
for automatic removals to Libya ) is also forbidden. States are prohibited from sending individuals
to any country from which removal to a real risk of persecution or other serious harm is reasonably
foreseeable. The presumption that a particular country is safe must be subject to rebuttal and will
not be justified when reliable information indicates that the country concerned fails to meet suitable
standards of protection (including procedurally). In such circumstances, it will be presumed that
‘those facts were known or ought to have been known to the [expelling] State at the time of
147
removal’. Hence, neither EU countries nor Australia can rely solely on international arrangements
(such as those underpinning Frontex/EUNAVFOR/NATO operations or the ‘Pacific Solution’) to
148
ensure that their non-refoulement obligations are met.
Article 4 of the MSR recognises this to a certain extent, but fails to specify how exactly the principle
is to be complied with in each individual case. The provision simply states that ‘before’
intercepted/rescued persons are disembarked, participating units ‘shall’ identify those concerned
and ‘assess their personal circumstances’, giving them ‘the opportunity to express any reasons for
believing that disembarkation in the proposed place would be in violation of the principle of
refoulement’. However, it omits to concretise any follow-up action or to indicate which procedural
guarantees apply. It also appears to assume that border officials are competent to carry out such
(instant) evaluations on board ships—without providing legal counsel, translation or any facilities to
149
prepare claims, which are basic elements for procedures to be fair.
By contrast, Australian law contains no specific provisions to this effect. In fact, it explicitly
authorises removal irrespective of whether this complies with Australia’s non-refoulement
150
obligations, which is in direct opposition to the most basic understanding of good faith compliance
with international (procedural) commitments, as mentioned above. Instances of ‘enhanced

151
screening’, as are apparently taking place during turnback operations, are also insufficient to
152
meet due process guarantees.
Even if an ‘independent and rigorous’ evaluation leads to a finding that a person is not at risk of
persecution or other serious harm, the individual concerned must still be given an opportunity to
have that decision reviewed. Indeed, the principle of non-refoulement ‘guarantees the availability at
153
national level of a remedy to enforce … the [principle]’. To be effective, remedies must be legally
154
and practically accessible, and must allow ‘the competent national authority both to deal with the
155
substance of the … complaint and to grant appropriate relief’ (including the opportunity for review
on the merits). The adjudicating authority must either be a court or be vested with similar powers
and guarantees of impartiality and independence (which disqualifies ‘participating units’ in
156 157
interdiction/SAR operations). In addition, appeals must have ‘automatic suspensive effect’ so
as to ‘prevent the execution of measures … whose effects are potentially irreversible’. As a result,
measures such as immediate returns to places like Indonesia or Turkey are incompatible with these
158
requirements.
6 Conclusion: The limitations of current approaches

The preceding sections have disclosed a picture of non-compliance by EU Member States and
Australia with their SAR duties under the law of the sea, and with key obligations under refugee and
human rights law:
 Deterrence and interdiction are pursued instead of operations focused on ensuring the
safety and rights of refugees and asylum seekers at sea;
 Interdiction powers have been stretched beyond the limits allowed under the law of the sea
to block asylum-seeker boats or to proactively deflect them to other destinations;
 Such interventions neglect human rights and jeopardise the principle of non-refoulement,
which prohibits States from sending people to any country where they may face
persecution, ill-treatment or other serious harm;
 Policies of immediate or automatic removal are fundamentally at odds with the principle of
non-refoulement, which requires adequate, individualised procedures with a right of appeal
and appropriate safeguards, including access to legal counsel, translation, and a rigorous
merits review by a competent and impartial authority;
 Holding asylum seekers in purportedly extra-jurisdictional zones (such as excised

territories, boats on the high seas or international areas of ports/airports) may unlawfully
impede their access to such procedures and constitute arbitrary detention, and in some
159
cases inhuman or degrading treatment.
To observe its legal obligations in good faith, an intervening State must instead:
 Conduct genuine SAR missions, instead of interdiction/deterrence operations, to comply

with its obligations relating to the right to life and related responsibilities underpinning the
160
SAR regime.
 Take account of the individual circumstances of each asylum seeker encountered at sea,
avoiding direct/automatic returns before considering the conditions required for their
safety and respect for their rights;

 To that effect, allow disembarkation and access to its territory for the purposes of
refugee status determination, as this is the only solution capable of guaranteeing that any
161
subsequent removal to a third country is, indeed, safe;
 Instead of deflection and containment measures, which may channel asylum boats through
162
ever more perilous routes and multiply fatalities, a good faith application of SAR would
embrace a comprehensive approach, in which law of the sea obligations are
interpreted in accordance with international refugee law and human rights law, in
particular the right to life, the prohibition on arbitrary detention and the principle of
non-refoulement;
 In parallel, open up alternative pathways to ensure safe and legal access to Europe and
Australia in humane conditions, thus avoiding asylum seekers having to resort to
smuggling/trafficking rings. This would reduce the number of fatalities at sea and allow for
more orderly arrivals. Pressure on the SAR system would decrease and
163
smuggling/trafficking routes would be rendered obsolete for asylum seekers at sea.
In conclusion, to ensure good faith compliance with international law, a comprehensive ‘protection-
centred vision’ must replace the current securitised approach that dominates EU and Australian
164
policy on refugees and asylum seekers at sea.

Endnotes
1
For an overview, see UNHCR, Danger on the Deep Blue Sea: 40 Years of Peril
<http://www.unhcr.org/seadialogue/>.
2
Ibid.
3
See, extensively, Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at
Sea: A Comprehensive Approach (Brill, 2016).
4
IOM, Missing Migrants Project <https://missingmigrants.iom.int/latest-global-figures>.
5
On EUROSUR, see Frontex, EUROSUR <http://frontex.europa.eu/intelligence/eurosur/>.
6
Australian Border Deaths Database, Monash University
<http://artsonline.monash.edu.au/thebordercrossingobservatory/publications/australian-border-deaths-
database/>.
7
UNHCR, Global Trends 2015 <http://www.unhcr.org/global-trends-2015.html>.
8
The Australian government defines a ‘turnback’ as an operation whereby a vessel is removed from Australian
waters and retuned to just outside the territorial seas of the location from which it departed. See
Commonwealth of Australia, Senate, Legal and Constitutional Affairs Legislation Committee, Estimates, 23
February 2015, 137 (Lieutenant General Angus Campbell)
<http://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/726d2567-78be-48ef-a9df-
f7302dbb884c/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2015_02_23
_3235_Official.pdf;fileType=application%2Fpdf#search=%22committees/estimate/726d2567-78be-48ef-a9df-
f7302dbb884c/0000%22>.
9
There is no legal definition of ‘interdiction’. The term is commonly taken to encompass all ‘measures applied
by a State, outside its national territory, in order to prevent, interrupt or stop the movement of persons without
the required documentation crossing international borders by land, air or sea, and making their way to the
country of prospective destination’. See UNHCR, Interception of Asylum-Seekers and Refugees: The
International Framework and Recommendations for a Comprehensive Approach, EC/50/SC/CRP.17 (9 June
2000) 10.
10
EUROSTAT, Asylum Statistics (13 March 2017) <http://ec.europa.eu/eurostat/statistics-
explained/index.php/Asylum_statistics>.
11
See, as summary, European Council, ‘Malta Declaration by the members of the European Council on the
external aspects of migration: addressing the Central Mediterranean route’ (Press Release 43/17, 3 February
2017) <http://www.consilium.europa.eu/en/press/press-releases/2017/01/03-malta-declaration/>. Numbers
peaked with over one million sea arrivals in 2015: UNHCR, ‘Over one million sea arrivals reach Europe in
2015’ (30 December 2015) <http://www.unhcr.org/afr/news/latest/2015/12/5683d0b56/million-sea-arrivals-
reach-europe-2015.html>.
12
Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the
European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and
of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council,
Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC [2016] OJ L 251/1.
13
ECRE, ‘Mare Nostrum to end – New Frontex operation will not ensure rescue of migrants in international
waters’ (10 October 2014) <http://www.ecre.org/operation-mare-nostrum-to-end-frontex-triton-operation-will-
not-ensure-rescue-at-sea-of-migrants-in-international-waters/>.
14
‘Frontex launches call for participation of the EU Member States in Joint Operation Triton’ (Frontex, Press
Room, 26 September 2014) <http://frontex.europa.eu/news/frontex-launches-call-for-participation-of-the-eu-
member-states-in-joint-operation-triton-b9nupQ>.
15
Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern
Central Mediterranean (EUNAVFOR MED) [2015] OJ L 122/31; and EUNAVFOR MED operation SOPHIA
<https://eeas.europa.eu/csdp-missions-operations/eunavfor-med_en>.
16
SC Res 2240, UN Doc S/RES/2240 (9 October 2015).

17
See, eg, Human Rights Watch (HRW), The Mediterranean Crisis: Why People Flee, What the EU Should Do
(19 June 2015) <https://www.hrw.org/report/2015/06/19/mediterranean-migration-crisis/why-people-flee-what-
eu-should-do>.
18
‘Joint Operation Poseidon (Greece)’, (Frontex, Hot topics, 10 October 2016)
<http://frontex.europa.eu/pressroom/hot-topics/joint-operation-poseidon-greece--3ImFxd>.
19
‘EU-Turkey Statement, 18 March 2016’ (International Summit, Press Release 144/16, 18 March 2016)
<http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/>.
20
European Commission, ‘Report from the Commission to the European Parliament, the European Council
and the Council: Fifth report on the Progress made in the implementation of the EU-Turkey Statement’
COM(2017) 204 final (2 March 2017) 2, 5.
21
Amnesty International, A blueprint for despair: Human rights impact of the EU-Turkey deal, (2017)
<https://www.amnesty.org/en/documents/eur25/5664/2017/en/>.
22
‘NATO Defence Ministers Agree on NATO support to assist with the Refugee and Migrant Crisis’ (North
Atlantic Treaty Organization (NATO), News, 11 February 2016)
<http://www.nato.int/cps/en/natohq/news_127981.htm>. See also ‘Warsaw Summit Communiqué: Issued by
the Heads of State and Government participating in the meeting of the North Atlantic Council in Warsaw 8–9
July 2016’ (Press Release 2016(100) 9 July 2016),
<http://www.nato.int/cps/en/natohq/official_texts_133169.htm?mc_cid=f8343b1adb&mc_eid=bf01703a94>.
23
Andrew Rettman, ‘NATO to take migrants back to Turkey, if rescued’ on EUObserver (23 February 2016)
<https://euobserver.com/foreign/132418>.
24
‘Table of Maritime Arrivals by Calendar Year (2007–14)’, Operation Sovereign Borders (6 November 2014)
<http://www.aph.gov.au/~/media/Committees/legcon_ctte/estimates/sup_1415/DIBP/CJATF1156Clarificationof
Evidence.pdf>; and Janet Phillips, ‘Boat arrivals and boat “turnbacks” in Australia since 1976: a quick guide to
the statistics’ (Parliamentary Library, Research Paper Series, 2016–17, 17 January 2017)
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/
Quick_Guides/BoatTurnbacks>.
25
See, extensively, Madeline Gleeson, Offshore: Behind the wire on Manus and Nauru (NewSouth Publishing,
2016).
26
For an account of the facts, see Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491.
27
See, in detail, Claire Higgins, ‘The (Un-)sustainability of Australia’s Offshore Processing and Settlement
Policy’, in Moreno-Lax and Papastavridis, above n 3, 303, 307 ff.
28
Janet Phillips, ‘A comparison of Coalition and Labor government asylum policies in Australia since 2001’
(Parliamentary Library, Research Paper Series, 2013–14 (28 February 2014)
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314/
AsylumPolicies>.
29
‘The Coalition’s Policy for a Regional Deterrence Framework to Combat People Smuggling’ (August 2013)
<http://www.rowanramsey.com.au/Portals/0/PeopleSmuggling.pdf>.
30
Peter Dutton, ‘Press Conference with AVM Stephen Osborne, Commander JATF, Austal Ship Yard, Western
Australia’, 7 April 2017 <http://www.minister.border.gov.au/peterdutton/2017/Pages/press-conference-
07042017.aspx>.
31
March 2017, 38 (Roman Quaedvlieg and Michael Pezzullo)
<http://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/9c54e9d6-7341-41c1-8366-
ac26ee0669bd/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2017_03_2
4_4909.pdf;fileType=application%2Fpdf#search=%22committees/estimate/9c54e9d6-7341-41c1-8366-
ac26ee0669bd/0000%22>. See also Parliament of Australia, Senate, A Claim of Public Interest Immunity
Raised over Documents
<http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Public
_Interest_Immunity>.

32
Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Payment of cash or
other inducements by the Commonwealth of Australia in exchange for the turn back of asylum seeker boats:
Interim Report, May 2016
<http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Payme
nts_for_turn_backs/Interim_Report>.
33
Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing
rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by
the European Agency for the Management of Operational Cooperation at the External Borders of the Member
States of the European Union [2014] OJ L 189/93 (MSR).
34
MSR arts 6–8.
35
United Nations Convention on the Law of the Sea, adopted 10 December 1982, 1833 UNTS 3 (entered into
force 16 November 1994) (UNCLOS).
36
See the status of the Convention as at 10 October 2014:
<http://www.un.org/depts/los/reference_files/status2010.pdf>; and Council Decision of 23 March 1998
concerning the conclusion by the European Community of the United Nations Convention of 10 December
1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI
thereof (98/392/EC) [1998] OJ L 179/1.
37
UNCLOS arts 2–3. On the measurement of the baselines, see UNCLOS arts 5–16.
38
UNCLOS art 18(2).
39
Eg, Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491; and Hirsi v Italy (European Court of Human Rights,
Grand Chamber, Application No 27765/09, 23 February 2012). See also MSR art 6.
40
UNCLOS art 25.
41 rd
Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 3 ed,
2007) 274.
42
Mark Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal
Regimes’ (2002) 14 International Journal of Refugee Law 329, 357.
43
Violeta Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member
States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174.
44
The Creole [1853] Moore, International Arbitration 824. See also Alexander P Higgins and Constantine J
nd
Colombos, Higgins and Colombos on the International Law of the Sea (Longmans/Green, 2 rev ed, 1951)
329; Aldo Chircop, ‘The Customary Law of Refuge for Ships in Distress’, in Aldo Chircop and Olof Linden
(eds), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (Nijhoff, 2006)
163. In this line, art 24(1)(a) of the UNCLOS provides that the coastal State ‘shall not impose requirements on
foreign ships which have the practical effect of denying or impairing the right of innocent passage’.
45
Kate A Hoff v The United Mexican States [1929] 4 RIAA 444.
46
Corfu Channel Case (United Kingdom v Albania) [1949] ICJ Rep 4 [22]. The principle has been reiterated,
eg, in Juno Trader (Saint Vincent and the Grenadines v Guinea-Bissau), Judgment [2004] ITLOS Rep 17, 128
ILR 267 [77].
47
D P O’Connell, The International Law of the Sea, Vol II (Oxford University Press, 1984) 1058.
48
UNCLOS art 87.
49
Guyana v Suriname, Award, ICGJ 370 (PCA 2007) [445].
50
Cf Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act
2014 (Cth) and Australian Maritime Powers Act 2013 (Cth) (MPA); and MSR art 8.
51
O’Connell, above n 47.
52
UNCLOS art 87(1).
53
UNCLOS arts 92(1) and 87; Convention on the High Seas, adopted 29 April 1958, 450 UNTS 82 (entered
into force 30 September 1962) art 6.

54
UNCLOS arts 99 (slave trade), 100 (piracy), 109 (unauthorised broadcasting), 110 (flaglessness) and 111
(hot pursuit). See further, Efthymios Papastavridis, The Interception of Vessels on the High Seas (Hart, 2013).
55
UNCLOS arts 92(2) and 110.
56
UNCLOS art 110(1); Robin Churchill and Vaughan Lowe, The Law of the Sea (Manchester University Press,
1983) 214.
57
Cf UNCLOS arts 110(1)(a) and 105 (piracy); arts 110(1)(c) and 109(4) (unauthorised broadcasting).
58
Richard Barnes, ‘The International Law of the Sea and Migration Control’ in Bernard Ryan and Valsamis
Mitsilegas (eds), Extraterritorial Immigration Control (Brill, 2010) 103, 133.
59
Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009) 181.
60
Slavery Convention [1927] UKTS 16; Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery, adopted 7 September 1956, 226 UNTS 3 (entered into
force 30 April 1957).
61
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime, adopted 15 November
2000, 2237 UNTS 319 (entered into force 25 December 2003) arts 2 and 14(1).
62
Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations
Convention against Transnational Organized Crime, adopted 15 November 2000, 2241 UNTS 507 (entered
into force 28 January 2004) (MSP) art 8(2)–(7).
63
MSP art 19.
64
MSR arts 6–8 and MPA s 69 ff.
65 st
See, eg, Committee against Torture, Decision: Communication No 323/2007, 41 sess, UN Doc
CAT/C/41/D/323/2007 (21 November 2008) (‘JHA v Spain’); and Hirsi v Italy (European Court of Human
Rights, Grand Chamber, Application No 27765/09, 23 February 2012).
66
International Convention for the Safety of Life at Sea, adopted 1 November 1974, 1184 UNTS 278 (entered
into force 25 May 1980) (SOLAS). Australia and all EU Member States are party. See status of ratifications as
at 6 February 17: <http://www.imo.org/en/About/Conventions/StatusOfConventions/Pages/Default.aspx>.
67
International Convention on Maritime Search and Rescue, adopted 27 April 1979, 1405 UNTS 97 (entered
into force 22 June 1985) (SAR). Australia and all EU Member States are party, except landlocked Austria,
Czech Republic and Slovakia. See status of ratifications as at 6 February 17:
<http://www.imo.org/en/About/Conventions/StatusOfConventions/Pages/Default.aspx>.
68
SOLAS Ch V Reg 33(1).
69
See, recently, Kylie J Brennan, ‘Volunteer aid workers returned to Spain after nightmare in Greek jail’ on
EuroWeekly (20 January 2016) <https://www.euroweeklynews.com/3.0.15/news/on-euro-weekly-news/spain-
news-in-english/136474-volunteer-aid-workers-returned-to-spain-after-nightmare-in-greek-jail>; Andreas
Schloenhardt and Colin Craig, ‘Prosecutions of People Smugglers in Australia 2011–14’ (2016) 38 Sydney Law
Review 49.
70
UNCLOS art 98(2).
71
SOLAS Ch V Reg 7(1).
72
SAR Annex Ch 2 and 3.
73
Convention for the Unification of Certain Rules respecting Assistance and Salvage at Sea [1913] UKTS 4 art
11 (emphasis added).
74
SAR Annex [2.1.10].
75
Ibid. Note also that this is general principle of the law of the sea, permeating several UNCLOS provisions in
all jurisdictional zones. See, eg, UNCLOS arts 25(3), 26(2), 52(2), 141, 152, 227.
76
Satya N Nandan and Shabtai Rosenne, United Nations Convention on the Law of the Sea 1982: A
Commentary, Vol III (Martinus Nijhoff, 1995) 177.

77
John King Gamble Jr (ed), Law of the Sea: Neglected Issues (University of Hawaii, 1979) 261.
78
Parliamentary Assembly of the Council of Europe, ‘The “Left-to-die Boat”: actions and reactions’, Resolution
1999 (2014) <http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=21024&lang=en>. See also
Mike Steketee, ‘We can't afford to rescue refugees, but we can afford to send them away’, ABC News (online),
4 June 2015 <http://www.abc.net.au/news/2015-06-04/steketee-languishing-at-sea/6522340>.
79
SAR Annex [1.3.2].
80
SAR Annex [1.3.13].
81
Kate A Hoff v The United Mexican States [1929] 4 RIAA 444. See also English High Court of Admiralty, The
Eleanor [1809] Edw, 135.
82
In this line, see Commission of the European Communities, ‘Commission Staff Working Document: Study on
the international law instruments in relation to illegal immigration by sea’ SEC(2007) 691 (15 May 2007) 9, 28.
83
MSR art 9(c)–(f).
84
Australian Maritime Safety Authority, National Search and Rescue Manual (revised February 2017)
<https://natsar.amsa.gov.au/natsar-manual.asp>.
85
Ibid [3.3.3].
86
Ibid [3.4.1], [3.4.4], [3.4.5], [3.4.7].
87
Ibid [3.4.12].
88
Daniel Ghezelbash et al, ‘Securitization of Search and Rescue at Sea: The Response to Boat Migration in
the Mediterranean and Offshore Australia’ (2017, forthcoming).
89
Resolutions MSC.155(78) and MSC.153(78), 20 May 2004.
90
Beside the formal amendments, see Guidelines on the treatment of persons rescued at sea, Resolution
MSC.167(78), 20 May 2014 (IMO Guidelines), and IMO/UNHCR ‘Rescue at Sea: A guide to principles and
practices as applied to migrants and refugees’ (updated 2015)
<http://www.refworld.org/docid/45b8d1e54.html>.
91
SAR Annex [3.1.9], and SOLAS Ch V Reg 33 (1–1) (in identical terms).
92
Australian Associated Press, ‘Lifeboat reportedly used by Australia to return asylum seekers found in Java’,
The Guardian (online), 1 February 2014 <https://www.theguardian.com/world/2014/feb/01/lifeboat-australia-
return-asylum-seekers-found-java>. On the definition of ‘interdiction’ see above n 9.
93
SAR Annex [3.1.9], and SOLAS Ch V Reg 33 (1–1) (in identical terms).
94
IMO Guidelines [6.12]. See also IMO/UNHCR, above n 90, 6.
95 th
See discussions at the 29 Session of IMO Facilitation Committee, 7–11 January 2002.
96
UNHCR, ‘Problems Related to the Rescue of Asylum-Seekers in Distress at Sea’, EC/SCP/18, 26 August
1981 [19]–[21]; and EXCOM, ‘Problems related to the Rescue of Asylum Seekers in Distress at Sea’
Conclusion No. 23 (XXXII), 21 October 1981, 3.
97
IMO, Principles relating to administrative procedures for disembarking persons rescued at sea,
FAL.35/Circ.194, January 2009.
98
‘Commission Staff Working Document: Study on the international law instruments in relation to illegal
immigration by sea’ above n 82, 4, 6.
99
MSR art 10(1).
100
MSR art 10(1)(b).
101
Australian SAR Manual [7.1]–[7.2].
102
SAR Annex [1.3.2].
103
It is s 74 of the MPA that establishes the obligation of disembarkation at a ‘place of safety’, but again
without defining any of the terms.

104
See, eg, Cindy Wockner, ‘Asylum seekers who sailed near Christmas Island transferred to Indonesia by
fishing boat’, News.com.au (online), 27 November 2015 <http://www.news.com.au/national/politics/asylum-
seekers-who-sailed-near-christmas-island-transferred-to-indonesia-by-fishing-boat/news-
story/5182b90232a7b568a7bb1b367c25dc6a>.
105
SAR Annex [3.1.9], and SOLAS Ch V Reg 33 (1–1) (emphasis added).
106
UNCLOS arts 2(3), 87(1).
107
IMO Guidelines [6.15].
108
Ibid.
109 nd
W A O’Neil, IMO Secretary-General, Opening address to the 22 regular session of the IMO Assembly,
London, IMO Headquarters, 19 November 2001.
110 st
IMO Guidelines [6.17]. Endorsed by UN General Assembly, GA Res 61/222, 61 sess, UN Doc
A/RES/61/222, 16 March 2007.
111
Andreas Fischer-Lescano, Tillmann Löhr and Timo Tohidipur, ‘Border Controls at Sea: Requirements under
International Human Rights and Refugee Law’ (2009) 21 International Journal of Refugee Law 256, 291,
reflecting: Hirsi v Italy (European Court of Human Rights, Grand Chamber, Application No 27765/09, 23
February 2012).
112
‘The Coalition’s Operation Sovereign Borders Policy’ (July 2013), 2, 8, 10, 14
<http://sievx.com/articles/OSB/201307xxTheCoalitionsOSBPolicy.pdf>.
113
‘A sequel of operation HERA just starting’ (Frontex, News, 15 February 2007)
<http://frontex.europa.eu/news/a-sequel-of-operation-hera-just-starting-uy631h>.
114
Convention relating to the Status of Refugees, adopted 28 July 1951, 189 UNTS 150 (entered into force 22
April 1954) (Refugee Convention) art 33(1); Convention for the Protection of Human Rights and Fundamental
Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as
amended by Protocols No 11, ETS No 155 (entered into force 1 November 1998) and No 14, CETS No 194
(entered into force 1 June 2010) (ECHR) art 3; Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted by General Assembly resolution 39/46 of 10 December 1984,
1465 UNTS 85 (entered into force 26 June 1987) (CAT) art 3; International Covenant on Civil and Political
Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR)
art 7.
115
Cathryn Costello and Michelle Foster, ‘Non-refoulement as Custom and Jus Cogens? Putting the
Prohibition to the Test’ (2015) 46 Netherlands Yearbook of International Law 273.
116
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered
into force 27 January 1980) arts 26–27.
117
ECHR art 1. See also ICCPR art 2(1); CAT art 3.
118
UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the
1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (26 January 2007) [24]
<http://www.refworld.org/docid/45f17a1a4.html>.
119
Violeta Moreno-Lax, Accessing Asylum in Europe (Oxford University Press, 2017 forthcoming) ch 8.
120
Violeta Moreno-Lax and Mariagiulia Giuffré, ‘The Rise of Consensual Containment: From “Contactless
Control” to “Contactless Responsibility” for Migratory Flows’, in Satvinder S Juss (ed), Research Handbook on
International Refugee Law (Elgar, 2017 forthcoming).
121
Hirsi v Italy (European Court of Human Rights, Grand Chamber, Application No 27765/09, 23 February
2012) [180].
122
Moreno-Lax, above n 119.
123
On retention at sea, see CPCF [2015] HCA 1 and Medvedyev v France (European Court of Human Rights,
Grand Chamber, Application No 3394/03, 29 March 2010). On extraterritorial detention, see Al-Saadoon and
Mufdhi v UK (European Court of Human Rights, Fourth Section, Application No 61498/08, 2 March 2010), and
Namah v Pato [2016] PNG SC 13.

124
ECHR art 5; ICCPR art 9; Refugee Convention arts 26 and 31(2).
125
MSR arts 6(2)(a) (territorial sea) and 7(2)(a) (high seas); MPA Div 7 (detaining vessels); Div 8 (placing and
moving persons); Div 9 (arrest).
126
MSR art 7(1).
127
MSP art 8(2).
128
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, concluded
20 December 1988,1582 UNTS 95 (entered into force 11 November 1990).
129
Medvedyev v France (European Court of Human Rights, Grand Chamber, Application No 3394/03, 29
March 2010) [82]–[103].
130
Ibid [61].
131
Ibid [80], [102].
132
MSP art 4.
133
MSP art 16.
134
Ibid.
135
MPA s 75.
136 th
Human Rights Committee, Views: Communication No 560/1993, 59 sess, UN Doc
CCPR/C/59/D/560/1993 (30 April 1997) [9.5] (‘A v Australia’). See also, Human Rights Committee, Views:
Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (13 November 2002) (‘C v Australia’); and
Human Rights Committee, Views: Communication No 1014/2001,UN Doc CCPR/C/78/D/1014/2001 (18
September 2003) (‘Baban v Australia’). For analysis and further references, see also Kaldor Centre Factsheet
– Immigration Detention (7 October 2015) <http://www.kaldorcentre.unsw.edu.au/publication/immigration-
detention>.
137 th
Human Rights Committee, Views: Communication No 560/1993, 59 sess, UN Doc CCPR/C/59/D/560/1993
(30 April 1997) [9.5] (‘A v Australia’) [9.2], [9.4].
138
Human Rights Committee, Views: Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (13
November 2002) (‘C v Australia’) [8.4].
139
Human Rights Committee, General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of
th
Their Liberty), 44 sess, HRI/GEN/Rev.9 (Vol I) (10 April 1992) [3]–[4].
140 st
Eg, Human Rights Committee, Views: Communication No 1011/2001, 81 sess, UN Doc
CCPR/C/81/D/1011/2011 (26 August 2004) (‘Madafferi v Australia’) (detention against medical opinion); MSS v
Belgium and Greece (European Court of Human Rights, Grand Chamber, Application No 30696/09, 21
January 2011) (overcrowding, poor hygiene, basic needs unmet, maltreatment by custodians).
141
James C Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005)
279 and Goodwin-Gill and McAdam, above n 41, 215.
142
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, (HCR/1P/4/ENG/REV.3)
(re-issued Geneva, December 2011) [189].
143
ECHR arts 2– 3; ICCPR arts 6–7; CAT art 3.
144
The Convention aspires to guarantee rights that are ‘practical and effective’, not ‘theoretical or illusory’. See,
among many others, Artico v Italy (European Court of Human Rights, Application No 6694/74, 13 May 1980).
145
See, eg, Jabari v Turkey (European Court of Human Rights, Fourth Section, Application No 40035/98, 11
July 2000) [39]; Abdolkhani and Karimnia v Turkey (European Court of Human Rights, Second Section,
Application No 30471/08, 22 September 2009) [107]–[17].
146
2012) [115], [129].
147
Ibid [121].

148
MSS v Belgium and Greece (European Court of Human Rights, Grand Chamber, Application No 30696/09,
21 January 2011).
149
2012) [113]–[138], [146]–[157], and [197]–[206].
150
Migration Act 1958 (Cth) s 197C. See also MPA s 22 and comment in section 5.1 above.
151
February 2015, 138–9 (Lieutenant General Angus Campbell and Kruno Kukoc)
<http://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/726d2567-78be-48ef-a9df-
f7302dbb884c/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2015_02_23
_3235_Official.pdf;fileType=application%2Fpdf#search=%22committees/estimate/726d2567-78be-48ef-a9df-
f7302dbb884c/0000%22>.
152
UNHCR, ‘Returns to Sri Lanka of individuals intercepted at sea’ (7 July 2014)
<http://www.unhcr.org/afr/news/press/2014/7/53baa6ff6/returns-sri-lanka-individuals-intercepted-sea.html>;
UNHCR, ‘Protection Policy Paper: Maritime interception operations and the processing of international
protection claims: legal standards and policy considerations with respect to extraterritorial processing’
(November 2010) <http://www.refworld.org/docid/4cd12d3a2.html>.
153
Jabari v Turkey (European Court of Human Rights, Fourth Section, Application No 40035/98, 11 July 2000)
[48].
154
Salah Sheekh v The Netherlands (European Court of Human Rights, Third Section, Application No 1948/04,
11 January 2007) [121].
155
Jabari v Turkey (European Court of Human Rights, Fourth Section, Application No 40035/98, 11 July 2000)
[48].
156
Čonka v Belgium (European Court of Human Rights, Third Section, Application No 51564/99, 5 February
2002) [75].
157
Gebremedhin v France (European Court of Human Rights, Second Section, Application No 25389/05, 26
April 2007) [66].
158
Čonka v Belgium (European Court of Human Rights, Third Section, Application No 51564/99, 5 February
2002) [79] (emphasis added).
159
Amuur v France (European Court of Human Rights, Application No 19776/92, 25 June 1996) [43].
Confirmed: ZA v Russia (European Court of Human Rights, Third Section, Application No 61411/15, 28 March
2017).
160
Xhavara and 15 others v Italy and Albania (European Court of Human Rights, Fourth Section, Application
No 39473/98, 11 January 2001) 1.
161
2012) and Separate Opinion of Judge Pinto de Alburquerque.
162
EU Presidency, Council Doc. 8624/16 (3 May 2016) [1]; and UNHCR, ‘Mediterranean death toll soars to all-
time high’ (25 October 2016) <http://www.unhcr.org/news/briefing/2016/10/580f1d044/mediterranean-death-
toll-soars-all-time-high.html>.
163
Violeta Moreno-Lax, Europe in Crisis: Facilitating Access to Protection, (Discarding) Offshore Processing
and Mapping Alternatives for the Way Forward (EU Red Cross, February 2016) <https://redcross.eu/latest-
news/ueope-in-crisis-facilitating-access-to-protection-discarding-offshore-processing-and-mapping-
alternatives-for-the-way-forward>.
164
Guy S Goodwin-Gill, ‘Setting the Scene: Refugees, Asylum Seekers, and Migrants at Sea – The Need for a
Long-Term, Protection-Centred Vision’, in Moreno-Lax and Papastavridis, above n 3, ch 1.


The Interdiction of Asylum Seekers at Sea: Law and (Mal) Practice in Europe and Australia

Uploaded by

Copyright:

Available Formats

The Interdiction of Asylum Seekers at Sea: Law and (Mal) Practice in Europe and Australia

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Interdiction of Asylum Seekers at Sea: Law and (Mal) Practice in Europe and Australia

Uploaded by

Copyright:

Available Formats

POLICY BRIEF 4

The Interdiction of Asylum Seekers at Sea:

The Andrew & Renata Kaldor Centre for International

The Policy Brief Series

Policy Briefs are available online at www.kaldorcentre.unsw.edu.au/publications.

ISSN: 2205-9733 (Print)

2 Background: State practice in Europe and Australia ......................................................... 2

2.1 Europe ...................................................................................................................... 2

2.2 Australia .................................................................................................................... 3

3 Interdiction powers under the law of the sea .................................................................... 3

3.2 Contiguous zone: Rights of police as ‘necessary’ ..................................................... 4

4 Duties of search and rescue at sea .................................................................................. 5

4.1.1 Flag State obligations: The duty to render assistance ......................................... 6

4.2 Personal scope of application: ‘Any person’ ............................................................... 6

4.3 Territorial scope of application: ‘(Everywhere) at sea’ ................................................ 6

4.4 Content: Notions of ‘distress’ and ‘rescue’ ................................................................. 7

4.5 ‘Place of safety’, disembarkation and termination of SAR operations ......................... 7

5 Intersection with human rights and refugee law obligations .............................................. 8

5.1 Interdiction/rescue and the principle of non-refoulement ........................................... 9

5.2 Interdiction/rescue and the prohibition of arbitrary detention .................................... 10

5.3 Interdiction/rescue and procedural guarantees ....................................................... 11

6 Conclusion: The limitations of current approaches ......................................................... 12

It specifically argues that States should:

 Conduct genuine SAR missions, instead of interdiction/deterrence operations, to comply

 Embrace a comprehensive approach, in which law of the sea obligations are

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

2 Background: State practice in Europe and Australia

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

3 Interdiction powers under the law of the sea

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

3.1 Territorial sea: Rights of innocent passage and refuge in port

3.2 Contiguous zone: Rights of police as ‘necessary’

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

4 Duties of search and rescue at sea

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

4.1 State obligations: Article 98 of the UNCLOS, SAR and SOLAS

4.1.1 Flag State obligations: The duty to render assistance

4.2 Personal scope of application: ‘Any person’

4.3 Territorial scope of application: ‘(Everywhere) at sea’

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

4.5 ‘Place of safety’, disembarkation and termination of SAR

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

5 Intersection with human rights and refugee law

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

5.1 Interdiction/rescue and the principle of non-refoulement

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

No person shall … be disembarked in, forced to enter, conducted to or otherwise handed

5.2 Interdiction/rescue and the prohibition of arbitrary detention

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

Regarding the principle of non-refoulement (including instances of indirect/chain refoulement), the

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

6 Conclusion: The limitations of current approaches

 Holding asylum seekers in purportedly extra-jurisdictional zones (such as excised

 Conduct genuine SAR missions, instead of interdiction/deterrence operations, to comply

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA:

POLICY BRIEF – THE INTERDICTION OF ASYLUM SEEKERS AT SEA: