International human rights law and standards relating to responses to irregular migration by sea. Matilda Bogner

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1 International human rights law and standards relating to responses to irregular migration by sea Matilda Bogner Office of the High Commissioner for Human Rights Regional Office for South East Asia Fellow panellists, Ladies and gentlemen, Allow me to express my gratitude to UNHCR for inviting the Regional Office of the UN High Commissioner for Human Rights to address this meeting. Clearly the issue of irregular migration by sea is a pressing human rights concern for us in this region, and one which has become increasingly prominent in recent days and weeks in light of the extremely precarious movement of Rohingya migrants and asylum seekers. Migration is one of six global thematic priorities of OHCHR. Over recent years, we have stepped up our work on migration and human rights, in a bid to move from rhetoric to reality, and to concretely assist states and other stakeholders to promote and protect the human rights of all migrants, wherever they are and whatever their status. In recent years, OHCHR has observed that border protection and surveillance has escalated dramatically. Increasingly tough controls have escalated the risks and raised the stakes of movement, forcing migrants into dangerous modes of travel, sometimes in conditions that violate human rights. Insufficient legal opportunities to migrate, or indeed avenues to seek asylum, add to the compulsion of migrants to rely on smugglers to facilitate their journey. Opaque and onerous migration procedures also create the conditions and incentives for migrants to turn to facilitated movement and the services of smugglers or to fall prey to traffickers. The result is that more migrants take extreme risks to evade security measures in a bid to enter transit and destination states, including taking to the seas in overcrowded and fragile vessels or stowing away in shipping containers. Thousands of migrants die each year en route to international borders and uncounted more suffer extreme physical deprivation, stranded on the high seas 1

2 or arriving at borders in urgent need of food, water, medical aid, and other assistance. Fundamental human rights, such as the right to life and protection from inhuman and degrading treatment, as well as the right to health the right to adequate food, are at stake in such perilous situations. Most fundamentally, migrants in such situations can be at risk of refoulement, including through collective expulsions. In the context of interception, the High Commissioner for Human Rights has noted that overcrowded vessels and their passengers are sometimes endangered by the methods employed by governments and regional organizations to intercept and turn back boatloads of migrants and refugees. She has stated that There must be an unequivocal recognition that no persons, including asylum seekers and migrants, inhabit a human rights limbo while travelling or upon reaching a destination other than their country of origin. 1 From the human rights perspective, therefore, there is a pressing need to ensure that a migrant-centred human rights approach characterises all responses and border enforcement activities in relation to irregular migration by sea. Non-discrimination and due process in expulsions International human rights law provides that all persons, without discrimination, must have access to the fundamental human rights provided in the international bill of human rights. Therefore all migrants, regardless of their legal status, or how they arrive at the border, or where they come from or what they look like, are entitled to enjoy their fundamental human rights. Where differential treatment is contemplated, between nationals and non-nationals or between different groups of non-nationals (for example on grounds of legal status, or method of transit), this must be undertaken for a legitimate objective, and the course of action taken to achieve this objective must be proportionate and reasonable. Within each migratory movement are individuals with unique human rights protection needs and it is thus crucial to recall that the international human rights framework establishes a universal due process right of everyone to have 1 Migrants at sea are not toxic cargo, Opinion Editorial by Navi Pillay United Nations High Commissioner for Human Rights, 15 September 2009 at 2

3 an individualised determination of their situation, their reasons for entry, and their defence against expulsion. This in turn implies that States must institute effective screening processes at air, sea and land borders for all migrants, and that they must avoid treatment including interceptions and expulsions that are arbitrary and collective. Similarly, the Smuggling Protocol (to the Transnational Crime Convention) requires intercepting States to avoid arbitrary expulsions; all persons including smuggled migrants rescued at sea should be screened individually to determine whether they face particular risks to their dignity and safety if disembarked to a foreign State. Every person is entitled to a prior, reasonable and objective examination of their particular circumstances. This due process right ensures that all applicable grounds under international law and national law that may negate the expulsion of that particular individual are duly considered, including, but not limited to the prohibition of refoulement. The absolute prohibition of collective expulsion is well established in international and regional human rights law. Article 22(1) of the International Convention on the Rights of All Migrant Workers and Members of their Families (ICRMW) provides that [m]igrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually. The Inter-American Commission has noted that [a]n expulsion becomes collective when the decision to expel is not based on individual cases but on group considerations, even if the group in question is not large. The Grand Chamber of the European Court of Human Rights recently found a breach of the principle of collective expulsion in the case of Hirsi Jamaa and others v Italy. The Grand Chamber ruled that the transfer of the applicants to Libya had been carried out without any examination of each individual situation, which was in contravention of Article 4 of Protocol 4 of the European Convention on Human Rights, noting that collective expulsions could take place from outside the territory of the expelling State, at border areas and on the high seas where that State exercised jurisdiction or effective control. Thus while States enjoy a sovereign prerogative to control their borders, it is important to note that human rights law provides important limits to the exercise of this prerogative. 3

4 Non-refoulement The fundamental principle of non-refoulement bars States from returning any person, regardless of their nationality or status, in any way to a place in which they would be at risk of persecution, torture or other serious human rights violations. The responsibility of the state is also engaged when it sends someone to another state that would be the first link in a chain of events leading to refoulement. Under human rights law (the Convention Against Torture and the ICCPR), protection from refoulement must also be applied according to the principle of non-discrimination. In its General Comment No. 15, the Human Rights Committee makes clear that a foreigner may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise. It should be noted that the principle of non-refoulement, which is widely recognized as a rule of customary international law, is equally applicable to all places where the intercepting State exercises jurisdiction and control, including on the high seas. The concept of non-refoulement has been extended to encompass violations of the right to life, including extrajudicial execution. There has also been some recognition in international and regional jurisprudence that removal of a person to a situation of arbitrary detention or where he or she risks being subject to destitution which reaches the level of inhuman or degrading treatment would constitute a violation of the principle of non-refoulement. In regard to children, particularly unaccompanied and separated children, the Committee on the Rights of the Child has provided explicitly that return is prohibited in cases where there is a reasonable risk that such return would result in the violation of fundamental human rights of the child, and particularly if there was a risk of refoulement. The Committee has stipulated that an effective determination of the best interests of the child should precede any return decisions taken in respect of children. The Committee has also requested states contemplating the expulsion or return of children to take into account the particularly serious consequences for children of the insufficient provision of food or health services. 4

5 Rescue at sea and protection of the right to life Among the more distressing aspects of recent migratory movements by sea have been reports of vessels and State authorities refusing to rescue migrants in distress or even intercepting them in or near territorial waters and forcing them adrift in perilous circumstances. Boats have broken apart in the water, or have drifted for days, weeks or months while migrants on board ran out of food and water. Vulnerable individuals, such as children, pregnant women and elderly migrants, have been particularly at risk. Boats have been unable to disembark the migrants at the nearest safe port. It should be recalled that article 6 of the ICCPR protects the right to life of all persons, and protects against the arbitrary deprivation of life. The Human Rights Committee has observed that migrants have an inherent right to life, protected by law, reiterating that they may not be arbitrarily deprived of life. In order to protect the physical integrity of migrants travelling at sea, States should be mindful to avoid dangerous interception practices. As the Inter- American Commission on Human Rights notes, a policy of attempting to stop, board and/or tow fully loaded or overloaded crafts in poor conditions on the high seas is inherently a high risk operation which not only jeopardizes many lives, but has resulted in the loss of human life. International maritime law codifies the obligation of Ship Masters and State authorities to rescue migrants at sea, including ensuring that rescued persons are disembarked and delivered to a place of safety. Under human rights law, there is a requirement that such a place of safety should include respect for human rights (such as the right to life, protection against torture and arbitrary detention and fundamental economic, social and cultural rights). Respect for dignity When migrants drift for days or weeks without access to food and water, when interception of their vessel causes injury or death, when children in search of family reunification are summarily returned, these are not just issues of charitable concern, but are serious violations of the human rights of those affected. 5

6 For example, the right to health is guaranteed under the Convention on Economic, Social and Cultural Rights in Article 12 and provides "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health", while article 12.2 enumerates "steps to be taken by the States parties... to achieve the full realization of this right. In effecting returns whether from the high seas or their territorial waters, States are obliged to ensure that migrants are not subjected to physical or psychological treatment amounting to torture or cruel, inhuman or degrading treatment, including excessive physical restraint. There is universal consensus that, as the fundamental unit of society, the family is entitled to respect, protection, assistance, and support. Article 14 of the ICRMW protects all migrant workers and members of their family from arbitrary or unlawful interference with family life. A child s right to family life is established in the Convention on the Rights of the Child. Respect for the right to family life requires States to refrain from actions that cause family to separate, and to take positive measures to uphold the unity of the family and reunite family members who have been separated. States are also obliged to take special measures to trace and reunite parents with their unaccompanied or separated children. Governance of migration While counter-smuggling laws generally aim at disrupting organised criminal networks involved in the facilitation of illegal entry for profit, it is an unfortunate reality that some counter-smuggling measures can have negative human rights impacts, both on the people being smuggled as well as on those who are facilitating their movement. In this context, it is important to distinguish between smuggling and trafficking; while trafficking by definition includes exploitation and entails a number of serious human rights violations, smuggling is essentially the service of moving people from point A to point B, and does not necessarily involve any human rights violation. While trafficking always is, smuggling is not per se a crime against migrants. Ironically, the strengthening of action against migrant smuggling, while often couched in the language of protecting vulnerable migrants, may have only served to make smugglers more organized and dangerous, and make migrants 6

7 more vulnerable to abuse by smugglers as well as State officials. Violence against migrants by smugglers and traffickers, while not directly a state responsibility, nevertheless places obligations on the state to prevent, investigate and punish the perpetrators. In designing and implementing policy responses to irregular migration by sea, thus, States should be aware that international human rights law requires them to give precedence to the human rights, lives and safety of persons at risk over all other considerations. From a human rights perspective, there is a pressing need to ensure that a migrant-centred approach characterises all border enforcement activities. For example, policy frameworks drawn up in relation to irregular migration by sea must also address concerns that border guards may lack the necessary training and technical tools to be able to identify human rights situations in the context of irregular migration by sea. At an expert meeting held by OHCHR last year on the subject of Human Rights at International Borders experts identified the border as a site of significant violence and abuse against migrants, perpetrated by State as well as non-state actors. Borders can also be conceived in national law and administrative regulations as zones of exceptionalism, and exempted from compliance with all of the human rights safeguards, checks and balances that are usually embedded in national laws. OHCHR has begun drawing up a set of authoritative Principles and Guidelines on Human Rights at International Borders and we look forward to discussing such guidance with relevant stakeholders in the coming months. Human rights are not mere aspirations or abstract slogans. Each right has a specific content and claim, based on the fundamental principles of nondiscrimination, participation, empowerment, and legal accountability. The High Commissioner has stressed that human rights are not a matter of charity, nor are they a reward for obeying immigration rules. Human rights are the inalienable entitlement of every human being, including those who set out to sea in search of a safer and better life. 7