This article is written by Ipsita Rout of KIIT, School of Law and curated by Anjeeta Rani of Chanakya National Law University.
ILLUMINATING THE ISSUE AT HAND
‘Pushback’ is the term that describes the practice of the authorities prohibiting people from finding safety in their territories by force when they are returning to another state. By holding back those looking for protection Member States abdicate responsibility for questioning the dignity of the border. They have their cases. Pushbacks cover the legal definition of Collective expulsion prohibited by Article 4 of Protocol No 4 to European Convention on the Defense of Human Rights (ECHR). This is a reference to the ‘Prohibition of collective expulsion of aliens’ that occurs when a group is forced to leave the country without being unbiased and honest assessment of particular events.
Push Backs are in breach of EU and international law because it undermines people’s right to seek asylum. It refuses people the right to due process until the decision to expel them is made, and it could eventually threaten to send refugees and others in need of international assistance and security back in danger.
ARE EU COUNTRIES LEGALLY PERMITTED TO TURN MIGRANTS AND REFUGEES OFF AT SEA?
Within the territory of the European Union, no, but beyond those seas, yes. “The moment a person reaches the borders of a European country, the person concerned is qualified to apply for asylum, which must then be investigated,” argues international law scholar Alexander Proelss. But “by principle, there is no such claim beyond the European territory”—not beyond the coastal waters of the state, which can reach up to 12 nautical miles (22.2 km; 13.8 mi) from the coastline. “In the past, there have also been numerous incidents in the Mediterranean in which government vessels were deployed exactly beyond these 12 miles and then forced the refugee boats back so that they could not claim asylum,” says Proelss. He points out that this is a tactic that infringes fundamental human rights
IS THERE AN INTERNATIONAL LEGAL DUTY TO SUPPORT VICTIMS IN DISTRESS?
Every captain is obligated assist people in distress, no matter who they are and with what reason the vessel is in distress unless it endangers the captain’s vessel or crew. This is set out in the 1982 United Nations Convention on the Law of the Sea and the 1979 International Marine Search and Rescue Convention.
As to what the international maritime law says on what occurs to the rescued, Proelss says: “There is no duty under international law of the sea that a nation into which refugees are entering, such as Italy or Greece, has to acknowledge the fact that they can go offshore there.” The current maritime law is incomplete on this issue. In other words, decades-old principles under the law of the sea refer only to a minimal degree to the current refugee crisis.
CAN REFUGEE TAKE LEGAL ACTION TOWARDS PUSHBACKS?
It’s really difficult. First of all, the national regulation in effect is that of the State in whose waters a castaway has been found. Each government must ensure that its civil servants comply with the laws in force and, in particular, with binding human rights when it comes to the maritime rescue. If they do not—as in the case of pushbacks in which the Greek coast guard is suspected to have been involved—the victims may take legal action against this unfair treatment before the Greek courts. If the national judicial process has been completed, an appeal can be brought before the European Court of Human Rights. But: “Migrants who have been transported to Turkish waters have other problems and, to prevent misunderstanding, have neither the awareness nor the means to follow the correct procedure,” says legal analyst Matz-Lück. There is presently no other opportunity to take action against pushbacks.
HOW IS GREECE APPROACHING THIS LEGAL SITUATION?
Greece denies the use of illegal tactics against boat refugees. Amid the COVID outbreak, the country faces “massive and structured migration flows” from Turkey, the Greek Hellenic Coast Guard informed Deutsche Welle in response to requests for comments. The Coast Guard also confirmed that Greece is securing the European maritime borders in compliance with national and international law. To deter immigrants and refugees coming from Turkey, the government in Athens is preparing to set up an underwater barrier just under 3 kilometers away from the Aegean island of Lesbos.
At times of grave human rights violation, the United Nations steps to safeguard the citizens. But, the tales of the waters which have seen the impossible, heard the screams in vessels and tolerated the sorrow of the hidden- humanity is the only hope. The atrocities of the European waters and the extent of pushbacks calls in for urgent intervention on the government, for the time has come for a new era, to shapeshift the laws and protect the ones lost at seas, seeking purpose in life.
In conclusion, the author would like to condemn the government’s decision to seize small boats at the very time of its introduction by naval vessels, as this often leads to casualties and urges for an international resolution on the methods of the EU. Every individual has some basic human rights and, above all, every refugee has certain rights which guarantee the security of his or her life. It would be imprudent and arbitrary to kill refugees who are trying to cross the English Channel to enter the United Kingdom. Instead of adopting such a vindictive system, the state can conform by refugee law and assist refugees by complying with the rules on maritime laws, family reunion, shielding unaccompanied minors, extending resettlement services and supplying them with humanitarian visas. At best, the European states could allow them to cross their channels or let them seek shelter in the shores, so they could find a life of dignity elsewhere, but the contemporary strategy of the European government is nothing but a state of tragedy promoting a global refugee crisis.