Blog post by Guy S. Goodwin-Gill, Professor of Law at the University of New South Wales and the Kaldor Centre for International Refugee Law at UNSW.
The daily tragedies that disfigure the Mediterranean, notwithstanding the views of the Human Rights Committee and the better judgments of the European Court of Human Rights, raise serious doubts about the traditional oversight mechanisms as effective means of ensuring State compliance with the right to life.
First off, the essential juridical link that is jurisdiction only enters the picture after the event, after the loss of life, in proceedings to establish who was responsible three or four years ago. Of course, everyone has the right to life and, if found in distress at sea, to the concomitant right to be rescued. But what is happening in the Mediterranean suggests that the right to life is regarded by some States and some officials, if not with scepticism, then with studied indifference. No matter the right of every individual, no matter the existence of a jurisdictional link, people are still dying and, if rescued, are denied disembarkation and/or returned whence they came without the opportunity to make a claim for protection.
Arguably, the very existence of the jurisdictional link operates to sever the connection between rescuer and those in distress, and to only heighten a competitive edge to arguments – before international courts or treaty supervisory mechanisms – regarding non-liability.
The question therefore is whether there is another, better, more effective way to making rescue work, without focussing exclusively on the individual responsibility of States; whether rescue, disembarkation and a solution can be promoted otherwise.
There may well be. In the Mediterranean there is some evidence that States subscribe to a measure of collective responsibility. On the one hand, Europe – I use the term loosely, but it should be understood to include the EU and its Member States at least – asserts the right to monitor and to control what goes on. Part of these endeavours reflects UN-authorised measures to stop arms imports to Libya, but part reflects a desire to ‘control’ so-called irregular migration, that is, the movement of migrants and asylum seekers. On the other hand, every single portion of the Mediterranean is covered by a search and rescue area, in which one State is in principle designated as responsible for conducting rescue.
The collective aspect could be read into the arrangements, save that the scheme set up under the Safety of Life at Sea and the Search and Rescue conventions was not framed with the migrant and the asylum seeker in mind. This means that there is a reluctance among a few States – exacerbated by the indifference of others – to assume responsibility for search and rescue which is anticipated may lead to disembarkation and its attendant follow-up for processing, protection and solutions. Hence, the disembarkation guidelines adopted by the International Maritime Organization remain just that – unenforceable guidelines.
But there is another aspect to the ‘collective’ which should not be ignored, and that is the duty – the international duty owed to the international community – that is fulfilled whenever a State, any State and even a non-State entity, rescues those in distress at sea.
That duty has a correlative, and it gives rise, in turn, to rights on the part of the rescuing State. And the question then is, how to move ‘protection’ beyond the unilateral, to a system which subordinates the individual responsibility of States to a broader, collective and community-based response; which avoids the necessity for after-the-fact analysis of conflicting testimony and claims regarding jurisdiction; and which re-establishes the right to life as paramount.
The juridical outlines of a collective approach to protection are already present in the dicta of the International Court of Justice in the Hostages Case. There, the Court set out the indicators of a ‘duty to act’ which arises whenever there is a real and identified risk of harm, where States know or are aware of such risk and its resonance with their obligations, and whenever they are able, within their means and resources, to take appropriate remedial action.
Of course, there are many imponderables that need to be teased out, particularly the contribution of other States to the plight of those rescued and disembarked. Indeed, the main challenge in addressing the idea of protection will be to inspire a response that reflects the commitment of the international community.
Within the EU itself, some such steps are being debated. The EU’s New Pact on Migration and Asylum, announced in September 2020, proposes ‘corrective solidarity mechanisms’ for two situations in particular, one of which is rescue at sea. ‘Corrective’, in this context, means adjusting the admittedly unfair application of the Dublin rules, but regrettably not dealing with the unfairness up front…
Building on the Treaty on the Functioning of the European Union, the proposed Regulation on Asylum and Migration Management includes specific provision on solidarity and the fair sharing of responsibility, listing the types of solidarity, which in turn include relocation, so-called return sponsorship, and capacity-building.
Following rescue and disembarkation, the European Commission, on the basis of a ‘migration management report’, will establish a ‘solidarity pool’ of places, which may be increased or topped up through the use of a ‘Solidarity Forum’. This looks a little like the DISERO and RASRO schemes operated by UNHCR during the Indo-China crisis, save that the European Commission may resort to ‘mandatory solidarity’ if the number of places offered falls significantly short.
Relocation contributions will be determined according to a ‘distribution key’ that comprises just two elements – population size, rated at 50%; and GDP, also rated at 50%. Admirably short, this nevertheless ignores circumstances particular to the individual and, like a number of other elements, it is potentially unfair.
Be that as it may, Member States may opt to offer ‘solidarity’, which can take the form of return sponsorship – that is, accepting responsibility for effecting the return of a person not in need of protection, either to the country of origin or residence. There is no obligation to accept anyone. Clearly, the inclusion of this option was intended to bring on board those Member States generally opposed to accepting people; for various reasons, including questions of location, time periods, and lack of cooperation by third States, it seems likely that it will be difficult to make return sponsorship work, without running the risk of refoulement, excessive detention, and lack of effective remedies.
Nevertheless, this initiative is one to follow, but freed from a tie to the unfairness of Dublin, and more with the Global Compact for Refugees in mind. What is called for is a catalyst – a State or group of States willing to subscribe to a pool of places for rescue cases, and willing to follow through on process and solutions. This, in turn, may lead to a set of basic principles and actions that can be applied across the board, including in the situation of those displaced by climate change or disaster, where a collective approach will also be needed.
But the right to life is not just under threat, it is being actively disregarded in the Mediterranean; what is needed is action, now.
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