Even if the customary status of the principle of non-refoulement remains elusive, all is not lost for the Rohingyas fleeing on rickety boats. In our third and final article, we will explain how an ASEAN framework can be forged from the law of the sea and law of asylum.
Finally, the Association of Southeast Asian Nations (ASEAN) agreed to accept their long-suffering neighbours fleeing from internal strife with open arms. It was an unprecedented moment of concession and cooperation by States not even parties to the Refugee Convention.
The Indochinese boat crisis would always be remembered with bittersweet feelings.
After the Vietnam War ended in 1975, tens of thousands of Vietnamese and Laotian fled from the reverberating aftershocks on boats to Hong Kong and South-East Asia. Save for China taking in about 260,000 Vietnamese, all other neighbouring countries refused to grant asylum.
In July 1979, 65 States attended meetings of the UN International Conference on Indochinese Refugees held in Geneva. A mutual understanding was reached. Western countries such as the United States (US) and Canada agreed to resettle the Indochinese refugees, whilst ASEAN countries would only provide them ‘temporary refuge’ pending such resettlement or return to their homelands.
Despite initial positive reception, ASEAN gradually grew disillusioned. Reduction of quotas and slow processing in the West caused a ‘caseload’ building up in Asia. The rate of arrivals far outpaced the rate of resettlement. Temporary asylum was turning into permanent camps.
On 14 June 1987, the Foreign Ministers of ASEAN communicated a joint statement to the UN General Assembly and Security Council. They reiterated that continual influx would cause ‘severe economic, social, political and security problems in the ASEAN countries, particularly Thailand and Malaysia which have had to bear the main brunt of the refugee problem’. Further they expressed concern over the ‘compassion fatigue among the resettlement countries resulting in a slow-down in the resettlement programme which would increase the residual problem of refugees in ASEAN countries’.
Feeling aggrieved – perhaps even betrayed – by the West not upholding their part of the bargain, ASEAN countries reverted back to their pushback policy in 1988. The 1979 solution had failed.
Fortunately, within a year, the real breakthrough came.
On 22 September 1989, the West and ASEAN returned to the negotiation table. The draft Comprehensive Plan of Action (CPA) was adopted. What was different this time? Suffice to say, the CPA contained several pragmatic policies which ‘went against the grain’ and ‘had never been tried before’.
First, deterrence of ‘clandestine departures’ through mass media dissemination of its ‘dangers and hardships’ and strict ‘institution of a status-determination mechanism’. The impact of such media ‘scare’ campaign was immediate – departures from South Vietnam dropped from 6,000 to 400 within a year. Simultaneously, the ‘Orderly Departure Programme’ (ODP) which provided the regular pathway to resettlement was promoted in tandem. The ODP’s strict screening procedure greatly unsettled human rights and legal purists – it defied the automatic presumption that all boat people were refugees fleeing persecution.
Second, temporary asylum was only granted to asylum-seekers pending completion of their status-determination process by national authorities. The UNHCR would merely play an observer and advisory role. Again, the purists were heavily critical – how can the fate of asylum-seekers be left in the hands of non-signatories to the Refugee Convention?
Third, the rules on resettlement and repatriation were tightened. Rejection of a resettlement offer automatically disqualified a refugee from subsequent offers. The plan did not rule out ‘forcible repatriation’ – as evinced by the coyly coded language that ‘alternatives recognized as being acceptable under international practice would be examined’ in the event that ‘voluntary repatriation is not making sufficient progress towards the desired object’.
Legality aside, the unconventional plan worked.
The pushbacks immediately halted. Despite some political hiccups, clearance for repatriation were expedited to meet the deadline. With time ticking and UNHCR’s funds running low, the last few boats from Malaysia and Indonesia were swiftly dispatched to Vietnam.
On 30 June 1996, UNHCR declared the closure of the CPA.
Today, despite its chequered history, Vietnam has become the fastest growing economy in ASEAN.
The success story is worth retelling for several reasons. First, that ASEAN has proven its doubters wrong before. Second, international cooperation is best driven by realistic goals, not lofty aspirations. Third, any refugee boat crisis ought to be appraised through the broader legal landscape above and beyond the solitary principle of non-refoulement.
Our final analysis expounds on the third point. Our solution to the Rohingya refugee crisis will draw inspiration from two other legal regimes. First, the law of the sea as refined by the instruments of International Maritime Organisation (IMO). Second, the law of asylum as reflected in EU’s framework and bilateral arrangements with North African countries to control migratory flows across the Mediterranean.
II. THE DUTY OF SEARCH AND RESCUE UNDER THE LAW OF THE SEA
The duty to rescue persons in distress at sea is a sacrosanct tradition recognised since ‘time immemorial’ as a steadfast commitment of solidarity amongst seamen.
Today, such regime has breathed new hope – as well as controversy – in the phenomenon of clandestine migration across the sea. On one hand, migrants sailing on rickety boats are being saved by rescue missions. On the other hand, coastal States are being overburdened by the disembarkation of migrants on their territory and the ‘war’ against human-trafficking.
Nevertheless, this regime is critical in providing frontline protection to the Rohingyas.
A. Origin and Framework
The duty to render assistance at sea is enshrined in Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS):
‘1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;
(c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.
2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.’ (emphasis added)
The duty is two-pronged. First, flag States are obliged to ensure that all ships bearing its flag adhere to the duty to rescue persons in distress at sea. Second, coastal States are obliged to operate an effective search and rescue service, in cooperation with neighbouring states where necessary.
The specifics of such duty are further contextualised by several international conventions.
The 1974 Convention for Safety of Life at Sea (SOLAS) is generally regarded as the leading treaty concerning the safety of merchant ships. First conceived in 1914 as a direct response to the sinking of RMS Titanic, today’s current version is the fifth iteration of SOLAS. Chapter V on safety of navigation includes provisions on the duty of shipmasters and states to rescue persons in distress at sea.
The 1979 Convention for Maritime Search and Rescue (SAR) is a specialised treaty covering search and rescue operations, to complement the duty of ships to render assistance to vessels in distress. The treaty envisions an international search and rescue plan – rescue missions will be coordinated by international organisations, in collaboration with other organisations where necessary. The world’s oceans are divided into 13 search and rescue areas, each delimited to specific countries. The responsibilities of States are clarified in minute detail, with emphasis on regional coordination between maritime and aeronautical search and rescue operations.
The 1989 International Convention on Salvage (Salvage Convention) incentivised salvors at sea by offering appropriate salvage rewards. Article 10(1) provides that ‘every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea’.
The duty to render assistance to persons in distress at sea is a ‘traditional hallmark of the law of the sea’ codified since the beginning of the 20th century. In 1910, this duty was explicitly recognised in the International Convention relating to Assistance and Salvage at Sea, and the International Convention related to Collision between Vessels. This duty was later expounded by the International Law Commission (ILC) in its 1956 draft articles culminating to its presence in the 1958 Convention on the High Seas. The ILC affirmed in 1956 that the duty to render assistance ‘states the existing international law’.
The customary status of the duty to render assistance at sea holds true until today. This is evinced by the number of State ratifications to SOLAS (165 States) and SAR (113 States) – which collectively represent over 97 percent of the gross tonnage of the world’s merchant fleet.
Moreover, the provisions in SOLAS can be regarded as ‘generally accepted international regulation[s]’ under Article 94(5) of the UNCLOS on the duties of flag States on the high seas. This has been affirmed by the numerous declarations of the IMO i.e. the UN special agency entrusted to regulate shipping.
For instance, in the 2016 South China Sea Arbitration before the Permanent Court of Arbitration, the tribunal held that Convention on Prevention of Collisions at Sea (COLREGS) was binding upon Philippines, a non-signatory, because the COLREGS was a ‘generally accepted international regulation’ under Article 94(5) of the UNCLOS.
Malaysia has ratified the SOLAS, but not the SAR and Salvage Convention.
B. Are Rohingya Boats in ‘Distress’?
The more contentious issue is whether the duty to render assistance at sea as codified under the UNCLOS, SOLAS and SAR extends towards the protection of desperate asylum-seekers setting sail on the perilous seas.
Before the 21st century, the traditional scope of ships in distress hinged on the promotion of continuous peace and freedom of oceanic navigation. This can be traced back to port regulations from centuries ago. Articles VIII and XXIX of the Maritime Ordinances of Trani in 1063 (a city on the southeastern coast of present-day Italy) addressed force majeure considerations for ships in distress. In 1150, Chapter 105 of the Navigation Code for the Port of Arles (France) provides for search and rescue duties to protect lives onboard vessels ‘exposed to danger’. Similar provisions are embodied in Article 4 of the Barcelona Maritime Code of 1258 (Spain).
So what amounts to ‘distress’?
In 1809, Lord Stowell in the English High Court of Admiralty opined that ‘it must be urgent distress; it must be something of grave necessity… the danger must be such as to cause apprehension in the mind of an honest and firm man’.
In 1929, in the context of immunity of foreign vessels in distress, the international arbitral tribunal in the case of Kate A. Hoff opined that ‘a ship floundering in distress, resulting either from the weather or from other causes affecting management of the vessel, need not be in such a condition that it is dashed helplessly on the shore or against rocks before a claim of distress can properly be invoked in its behalf’.
Under the SAR, ‘distress phase’ is defined as ‘a situation wherein there is a reasonable certainty that a person, vessel, or other craft is threatened by grave and imminent danger and requires immediate assistance’.
Most Rohingya boats are cramped beyond capacity, often by vulnerable women and children without adequate food or water. Hence, such boats would meet the threshold of ‘distress’ under the law of the sea.
C. The Disembarkation Dilemma
Traditionally, the duty to render assistance at sea refers to the duty to search and rescue ships in distress. What happens to the passengers after rescue? Where should they be disembarked and sheltered? Unfortunately, the scope of post-rescue protection of migrants afforded under international law is rather nascent and nebulous.
The world’s oceans are divided into maritime zones. The first 12 nautical miles from any baseline of a State forms part of the State’s territory i.e. ‘territorial sea’. The next 12 nautical miles lies the ‘contiguous zone’ where States may exercise enforcement measures to prevent infringement of their territorial rights. The next 200 nautical miles lies the ‘exclusive economic zone’ (EEZ) where States possess certain rights of exploration and exploitation of maritime resources. Beyond the EEZ lies the ‘high seas’ over which no State may claim sovereignty.
Although Article 98 of the UNCLOS is located in Part VII concerning the high seas, it is well-settled that the duty to search and rescue persons in distress applies to all maritime zones. Such duty is implicit in Article 18(2) concerning the territorial seas:
‘Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.’ (emphasis added)
Moreover, there are no territorial limitations to this duty under the SAR, SOLAS and Salvage Convention.
This duty does not discriminate between the classes of persons in distress at sea – be it shipmen, explorers, fishermen or asylum-seekers and refugees. This is evident from the words ‘any person’ in Article 98 of the UNCLOS. Prohibitions against discrimination are also explicit within SAR and SOLAS: ‘The duty to render assistance applies to every person in distress regardless of his status, nationality or the circumstance that led to the distress situation’. The Salvage Convention goes a step further by prohibiting discrimination even against an enemy in danger of being lost at sea.
The more pressing question is this – to what extent are coastal States bound to accept migrants in distress at sea whether rescued by their own flagged vessels or vessels of other States?
This issue came into the fore during the infamous MV Tampa incident in 2001 (as previously explained in Part II). Australia’s steadfast refusal to accept the migrants prompted a global review of the existing framework to address loopholes, particularly with regards to the treatment of rescued persons. The 2002 Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea brought together a multi-disciplinary convocation of experts from, amongst others, the IMO, the United Nations Division for Ocean Affairs and the Law of the Sea, the United Nations High Commissioner for Refugees (UNHCR), the United Nations Office on Drugs and Crime, the Office of the United Nations High Commissioner for Human Rights, and the International Organization for Migration. The review led to the 2004 amendments to the SAR and SOLAS, and streamlined the IMO Guidelines for the Treatment of Rescued Persons at Sea (IMO Guidelines).
The 2004 amendments to the SAR and SOLAS essentially encapsulate the following:
‘Contracting Governments shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ intended voyage, provided that releasing the master of the ship from the obligations under the current regulation does not further endanger the safety of life at sea. The Contracting Government responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases the relevant Contracting Governments shall arrange for such disembarkation to be effected as soon as reasonably practicable’. (emphasis added)
The 2004 amendments to the SOLAS and SAR have been accepted by all State Parties respectively except Malta, whilst Finland declined to accept the amendment in relation to the SOLAS.
The implications of the amendments are monumental. First, the onus is placed upon States to coordinate and cooperate in releasing shipmasters from their obligations of rescued distressed persons. This alleviates the grievance of commercial vessels being stuck at sea and suffering economic loss due to the refusal of disembarkation by coastal States.
Second, the primary responsibility of States is based on the search and rescue regions in which the rescue takes place. Such assignment of responsibility prevents States from the continuous practice of ‘ping-ponging’ vessels carrying rescued persons – which not only may amount to refoulement, but also deters commercial vessels from coming to the migrants’ rescue.
Third, the long-existing gap of disembarkation of rescued persons has been resolved. Such primary responsibility extends to assistance in the disembarkation of rescued persons in a place of safety.
This notion of ‘place of safety’ is a novel one aimed at safeguarding rescued persons from unruly treatment. Neither the SAR nor SOLAS define such term.
Instead, the term is defined in the non-binding IMO Guidelines:
‘A place of safety… is a location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination’.
The IMO Guidelines further expounded that a place of safety ‘may be on land, or it may be aboard a rescue unit or other facility at sea that can serve as a place of safety awaiting disembarkation’. The latter alternative potentially opens a loophole for coastal States to deny disembarkation of migrants on their shores. However, the Italian Court of Cassation has held that a ship at sea cannot be classified as a place of safety because ‘not only it is at the mercy of adverse weather events, but also it does not ensure respect for fundamental human rights of rescued people’.
Moreover, the IMO Guidelines provides that ‘an assisting rescue ship should not be considered a place of safety solely because the rescued persons are no longer in immediate danger’. An implicit reference to the non-refoulement is reflected in the ‘need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened’ for asylum-seekers and refugees recovered at sea.
D. The European Mediterranean Migrant Crisis
Unsurprisingly, the scope of the duty to render assistance at sea attracts recurring real-life controversy.
For decades, many migrants look towards Europe to escape the wars, violence, political upheavals and economic unrests in Africa and the Middle East. Desperation draws them aboard cramped, unseaworthy vessels. In October 2013, a capsized boat killed over 300 men, women and children attempting to cross the Mediterranean. Their bodies washed up on the shores of Lampedusa, Italy for days thereafter.
This ‘immense tragedy,’ as dubbed by then Prime Minister Enrico Letta, sparked Italy into action. On 18 October 2013, a comprehensive search-and-rescue operation with a considerable budget of $12 million monthly called ‘Mare Nostrum’ was launched. The Mare Nostrum was estimated to have saved 130,000 lives. Alas, barely more than a year, on 31 October 2014, Italy ceased the Mare Nostrum, leaving only the EU-led Frontex to save distressed migrants with only a third of Mare Nostrum’s budget.
The scaling down of search and rescue efforts could not have arrived at a worst time. In 2015, Europe saw a massive hike in migrant arrivals (1,032,408 compared to 225,455 in 2014) and recorded 3,771 persons dead or missing. In 2016, despite arrivals lessening drastically to 373,652, the death toll increased to 5,096.
The worsening crisis prompted the intervention of non-governmental organisations (NGOs). Their rescue operations include patrolling the Mediterranean, bringing migrants onboard a safe vessel, providing food, shelter and medical services, and disembarking them at a safe port. From 2015 to 2018, over ten NGOs operated in the Mediterranean.
However, their noble intentions have not been well-received by governments. Since 2015, coastal States have refused the entry of NGO vessels intending to disembark rescued migrants. Even worse, on at least 11 occasions, authorities have resorted to prosecution against their shipmasters and crew for breaching immigration laws and abetting migrant smuggling. Rescue vessels have been impounded and seized.
In June 2018, Italy denied the entry of the rescue vessel Aquarius which carried over 600 rescued persons onboard. After a week-long standoff at sea which attracted international criticism, Aquarius was finally allowed to disembark its rescued persons in Valencia, Spain. Meanwhile, Italian prosecutor in Sicily opened investigations against Médecins Sans Frontières (Doctors without Borders), the NGO that jointly operated the ship. The Aquarius ceased operations by December 2018 after its Panamanian flag was revoked at the French port of Marseilles. Aquarius’s demise marked the eclipse of NGO search and rescue operations in the Mediterranean at that time. Soon after, the death toll in the Mediterranean rose sharply.
In July 2019, Captain Carola Rackete of German rescue vessel Sea-Watch 3 was arrested by Italian police after forcefully disembarking rescued persons in the port of Lampedusa after a two-week standoff at sea. Captain Rackete defied the instructions of Italian authorities and trapped its police patrol boat against the quay. Despite allegations of aiding irregular migration, the Italian Court of Cassation upheld Rackete’s release on the basis that she had acted in accordance with the customary obligation of rendering assistance to persons in distress at sea.
Italy’s hardline enforcement against disembarkation was mainly propelled by then Italian Minister of Interior Affairs, Matteo Salvini. Due to political winds of change, Italy has softened its stance and reopened its doors towards rescued persons. In November 2019, Italy permitted the disembarkation of 213 migrants in Messina by rescue vessel Ocean Viking. In May 2020, over 180 migrants were rescued off an Italian ferry in Palermo after being kept in isolation for 14 days.
Nonetheless, the COVID-19 pandemic has complicated matters. Most recently, Italy and Malta have closed their ports, of which they claim are no longer ‘places of safety’ due to the pandemic. Whilst mindful of valid public health concerns, critics argue that a blanket ban on disembarkation is disproportionate considering the small numbers of migrants rescued.
In sum, the EU experience is a mixed bag of highs and lows. The commitment of Mediterranean coastal States like Italy towards their duty to rescue migrants at sea is largely driven by political will and economic resource, which tends to recede in times of crisis.
E. Search and Rescue Operations – Lifesavers or Smugglers?
The primary objection raised by governments against search and rescue operations is that they act as a ‘pull factor’ that incentivises migrant smuggling at sea. To what extent does this hold water?
The key instrument is the Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling Protocol) which supplements United Nations Convention against Transnational Organized Crime (UNTOC). The UNTOC has 190 State parties including Malaysia. The Smuggling Protocol is ratified by 149 State parties including Myanmar, Thailand and Indonesia, but not Malaysia.
The primary purpose of the Smuggling Protocol is ‘to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants’. ‘Smuggling of migrants’ is defined as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’.
Further, the Smuggling Protocol contains a ‘saving clause’ which states: ‘Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including… the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein’.
There are several reasons why combatting migrant smuggling is not inconsistent with the duty to render assistance at sea. First, the rescue operations conducted by NGOs (albeit involving illegal entry in certain cases) are essentially voluntary and humanitarian in nature, and cannot be deemed as ‘smuggling’. Second, the correct procedure in intercepting vessels suspected of migrant smuggling is to notify the flag State of the vessel and board and search the vessel only upon obtaining the flag State’s authorisation, and not to refuse entry or divert them away.
Third, any measure taken against such vessels must ‘ensure the safety and humane treatment of the persons on board’ and ‘preserve and protect the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment’ of such persons. Fourth, the Smuggling Protocol is explicitly clear that the principle of non-refoulement under the Refugee Convention shall remain unaffected.
Hence, the duty to combat migrant smuggling under the UNTOC regime and duty to render assistance at sea under the UNCLOS regime are both complementary in their aim – to protect the lives and well-being of vulnerable migrants. More importantly, such regimes form a strong legal framework to greatly reduce Rohingya fatalities along the Straits of Malacca and South China Sea.
III. THE EU REGIME ON ASYLUM, IMMIGRATION AND BORDER CONTROL
The European Union – commonly known as the EU – is a regional political and economic bloc encompassing 27 countries. Some non-EU members are part of the Schengen zone which abolishes internal borders and allows free movement of people (e.g. Switzerland); whilst some members are not (e.g. Ireland). For ease of convenience – and at the possible expense of technical accuracy – any mention of the EU or Europe should be construed as referring to the affected countries under the specific legal regimes in context.
The current iteration of the EU is founded upon the Treaty of Lisbon signed in 2007 which consists of the Treaty on European Union (TEU) and Treaty on the Functioning of the European Union (TFEU), and the Charter of Fundamental Rights of the European Union (EU Charter). Any dispute on the interpretation and application of such treaties is subject to the exclusive jurisdiction of the Court of Justice of the European Union (CJEU).
For the avoidance of doubt, the EU Charter should not be confused with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which binds both EU and non-EU countries (e.g. Turkey and Russia) and falls under the jurisdiction of the European Court of Human Rights (ECtHR). Since the EU also accedes to the ECHR, cases by asylum-seekers are often brought before both the CJEU and ECtHR.
One of the EU’s core values enshrined under the TEU is the ‘freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’.
The TFEU dictates that the EU ‘shall frame a common policy on asylum, immigration and external border control’. Such common policy encompasses four core areas:
Over the last two decades, the EU has employed four types of enforcement measures to control external migratory flow of Africans and Asians crossing the Mediterranean: (a) border management; (b) repatriation; (c) readmission agreements; (d) and relocation.
A. Border Management
The TFEU allows the EU to adopt measures concerning ‘checks [on] persons crossing external borders’ and ‘the gradual establishment of an integrated management system for external borders’.
The primary regime is the Schengen Borders Code (SBC) which regulates the movement of people across internal borders within EU, as well as the crossing of external borders into the EU zone. The key core principles of border checks include:
The SBC sets out general procedures such as fixed opening hours, entry conditions for third-country nationals (e.g. travel documents), checks on cross-border movements by border guards, border surveillance to prevent unauthorised border crossings or counter crime, and refusal of entry due to non-compliance of entry conditions (without prejudice to right to asylum and international protection) and enforcement of border control (specialised professional training for border guards).
The enforcement of SBC is divided into four tiers (from external to internal): measures in third countries of origin and transit, cooperation with neighbouring countries, border control at frontier, and measures within the EU (e.g. risk analysis and repatriation).
The key player is the European Border and Coast Guard Agency – commonly known as Frontex – established in 2005. Frontex is entrusted with the ‘effective implementation of European integrated border management’ at all four operational tiers. Over the years, the role of Frontex has been expanded to include the following tasks:
Moreover, Frontex’s budget has steadily increased – €19.2 million in 2006, €42 million in 2007 and €87 million in 2010 – unaffected even by the financial crisis. This trend evidently matches in proportion to the escalating migrant crisis in EU.
Due to their frontline presence and police powers, it is not surprising that their Mediterranean operations occasionally hit the headlines for the wrong reasons. In 2011, Frontex deployed Operation HERMES upon Italy’s request for assistance to stem the overcrowding in Lampedusa Island. Frontex joined Spain in Operation HERA 2008 to intercept and divert vessels to the closest North African shore (Senegal or Mauritania). In Hirsi Jamaa, Frontex was even implicated in Human Rights Watch’s report of the Italian navy forcing boats back to Libya.
Missteps in enforcement aside, there is no denying Frontex being the crown jewel at the heart of the SBC. The burden of controlling migratory flows on the open oceans is often too much for national authorities to bear alone. Aside from lending operational support, Frontex ensures such authorities operate within the EU’s framework of human rights – the guardian who watches over the watchmen.
The TFEU allows the EU to adopt measures on ‘illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation’. The regional framework is embodied in the Return Directive. It is left for individual governments to enact and enforce their own laws within such framework. Technical assistance may be sought from Frontex.
The Return Directive provides several procedural safeguards for non-EU nationals deemed staying illegally and issued a ‘return decision’. First, States ‘shall respect the principle of non-refoulement’. Second, a return decision ‘shall provide for an appropriate period for voluntary departure of between seven and thirty days’.
Third, ‘coercive measures to carry out the removal of a third-country national who resists removal’ should be a measure of ’last resort’ and ‘be proportionate and shall not exceed reasonable force’. Fourth, decisions on return, entry-ban and removal must be accompanied with ‘reasons in fact and in law’ and ‘information about available legal remedies’. Fifth, detention is only permissible ‘when there is a risk of absconding or the third-country national concerned avoids or hampers the preparation of return’.
Repatriations are often challenged before the ECtHR (as previously explored in Part II). For instance, the ECtHR in Hirsi Jamaa found Italy’s interception of boats carrying Somalian and Eritrean migrants and their return to Libya violated the prohibition on torture and collective expulsion under the ECHR regime.
In sum, the EU framework provides an effective ‘check-and-balance’ mechanism to ensure EU States exercise their right to expel asylums consistent with the principle of non-refoulement and the protection of human rights as a whole.
C. Readmission Agreement
Under the TFEU, the EU may enter into bilateral agreements with non-EU countries for the ‘readmission’ of their nationals who breach their entry, presence or residence conditions to their countries of origin or provenance.
In practice, the EU has little hesitation entering into agreements with North-African countries lacking ‘a well-functioning asylum system’ or ‘resources or infrastructure to manage large inflows of migrants’. Such countries are obliged to accept not only their own nationals, but also foreign nationals or stateless persons. Hence, many migrants arriving in Italy and Greece are rapidly returned to the previous country of transit, such as Egypt and Tunisia (regardless of nationality).
Needless to say, this sits rather uneasily with the principle of non-refoulement. There is genuine concern that detention centres in North Africa are being promoted – and perhaps even discreetly funded – by the EU to stop migrants from even setting sail to Europe.
In short, such agreement can effectively trap migrants in desolate transit zones. Worse, they may be treated as ‘human pawns’ in a political game of thrones. The EU-Turkey agreement is hinged upon visa exemptions being bestowed to Turkish nationals to enter the Schengen zone in consideration of Turkey housing Syrian refugees. Moreover, Turkey has an alarming tendency in threatening to allow migrants to pass their territory unhindered whenever at loggerheads with the EU on some political flashpoint.
Once again, it is worth recalling the ECtHR case of Hirsi Jamaa which occurred against the backdrop of the Italian-Libyan Friendship Treaty of 2008. Italy argued that such treaty ‘made specific reference to compliance with the provisions of international human rights law’. Unpersuaded, the Grand Chamber observed that Italy cannot evade its responsibility of non-refoulement by ‘relying on its obligations arising out of bilateral agreements with Libya’.
Nevertheless, the concept of readmission agreements is sound in theory. The rationale is to make countries of origins or transit responsible for irregular migrants leaving or passing through their territories due to lax border controls. Such agreements only become problematic when abused by developed States in passing on refugees to States with dubious human rights record.
In theory, a regional readmission agreement could be put in place by ASEAN to oblige member States to accept all Rohingyas landing on their shores. This would prevent countries from ‘turning away’ Rohingyas to their neighbours, and consequently trap the Rohingyas in an endless ‘ping-pong’ state of limbo.
The EU adopts the ‘first country of asylum’ principle (as encapsulated under the ‘Dublin III Regulation’). Member States are obliged to ‘examine any application for international protection by a third-country national or a stateless person who applies on [their] territory… including at the border or in the transit zones’. Such migrants are afforded a bundle of procedural, including right to information, personal interview, protections for minors, and even temporary stay for migrants guilty of irregular border crossings. Whilst admirable in ambition, such principle inevitably places an onerous and disproportionate burden on coastal States to process and protect migrants.
Indeed, the practical limits of such principle were tested during the height of the Mediterranean crisis. In 2015, the EU Council wisely triggered the TFEU’s ‘provisional measures’ mechanism due to ‘an emergency situation characterised by a sudden inflow of nationals of third countries’ for the benefit of Italy and Greece. Such decision was reinforced by the ‘principle of solidarity and fair sharing of responsibility’ governing EU policies on border checks, asylum and immigration.
This interim decision allowed the relocation of 40,000 migrants arriving in Italy and Greece over a span of 2 years, and operated as a ‘temporary derogation’ to the Dublin III Regulation by suspending their obligations to provide temporary refuge to such migrants. The decision expired in September 2017.
On 2 April 2020, the CJEU found Poland, Czech Republic and Hungary liable for non-compliance of such decision. Despite initially indicating willingness to relocate 100 migrants from Greece and Italy, Poland failed to follow up and relocate any migrants. Despite initially indicating interest to relocate 50 migrants, Czech Republic relocated only 12 migrants out of 30 identified by Greece and refused to accept all 10 migrants identified by Italy. Hungary – the least cooperative of the lot – did not even indicate any quota for relocation.
In dismissing their defence on public order and internal security, the CJEU opined that they could have availed to existing mechanism (i.e. security checks and interviews) to ‘ensure effective and swift relocation of a significant number of applicants clearly in need of international protection in order to alleviate the considerable pressure on the Greek and Italian asylum systems’. On the alleged ineffectiveness of such mechanism, the CJEU noted that this ‘did not prevent other Member States from making, at regular intervals, relocation commitments and from actually relocating applicants for international protection’ and any practical difficulties ought to be resolved ‘in the spirit of cooperation and mutual trust’.
The EU relocation provisional measure of 2015-2017 is a great example of international cooperation in the form of ‘responsibility-sharing’.
Remember the ASEAN-wide readmission agreement idea? One major drawback is that the first country of asylum (i.e. typically countries nearest to Myanmar like Thailand) will disproportionately bear the highest burden of housing the Rohingyas. However, this drawback can be directly mitigated by an ASEAN relocation program. By assigning quotas to each country based on their capacity, the ‘burden’ can be spread fairly and equitably across the board.
It is fitting to recall the impassioned plea of former US Vice President Walter Mondale during the inaugural meeting of the UN Conference of Indochinese Refugees at Geneva in 21 July 1979:
‘Let us not be like others. Let us renounce that legacy of shame. Let us reach beyond metaphor. Let us honor the moral principles we inherit. Let us do something meaningful – something profound – to stem this misery. We face a world problem. Let us fashion a world solution. History will not forgive us if we fail. History will not forget us if we succeed.’
Sadly, the solution only came to fruition 10 years later in 1989 at the expense of thousands of lives lost. Could ASEAN have acted earlier to stem the misery of the Indochinese refugees? Perhaps, perhaps not. With the benefit of hindsight, it is easy to pinpoint their failings and gloss over the difficulties faced by infant governments in the early years of independence.
Behold the EU – a union of 27 States rich in resources and guided by a righteous moral compass. Yet, even over a decade, the Mediterranean migrant crisis still persists. International cooperation takes time to foster. Political will – just like Rome – is not built in a day.
Protection for the Rohingya boats should not be merely focused on the principle of non-refoulement, but also encompass other established regimes of international law i.e. law of the sea and law of asylum.
In this spirit, ASEAN should formulate a regional framework on several core areas:
ASEAN has risen once before to save the Indochinese in 1989. There is no reason to doubt why ASEAN cannot rise again to save the Rohingyas today.
Written by Mr Raphael Kok, an alumnus and mooting coach of University of Malaya and Caysseny Boonsiri, a third year student of University of Malaya.
Edited by Siti Sarah binti Azhari.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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 See footnote 2.
 Joint Statement by the ASEAN Foreign Ministers on Indo-Chinese refugees, issued in Singapore on 14 June 1987. UN Doc A/42/477. (17 August 1987), .
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 See footnote 2 above, 3.
 Chetty, A. Lakshmana, “Resolution of the Problem of Boat People: The Case For A Global Initiative”, ISILYBIHRL 8 . Retrieved from <http://www.worldlii.org/int/journals/ISILYBIHRL/2001/8.html>.
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 See footnote 7.
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 See footnote 2, 8.
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 See footnote 2, 6.
 See footnote 10, 13 .
 See footnote 10, 13 [6(a)].
 See footnote 2, 6.
 See footnote 10, 14 [9(b)].
 See footnote 2, 6.
 See footnote 10, 15 .
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 Italian Court of Cassation, Judgement of 16 January – 20 February 2020, no. 2262. Retrieved from <http://www.lacostituzione.info/wp-content/uploads/2020/03/Corte-di-Cassazione.pdf>.
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 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Crime (adopted 15 November 2000, entered into force 28 January 2004) 2241 UNTS 507.
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 See footnote 104, art 2.
 See footnote 104, art 3(a).
 See footnote 104, art 19(1).
 See footnote 104, art 8(2).
 See footnote 104, art 9(1).
 See footnote 104, art 16(1).
 “About the EU”, Official website of the European Union, 30 May 2020, Retrieved from <https://europa.eu/european-union/about-eu/countries_en#28members>.
 See footnote 114.
 Treaty of Lisbon amending the Treaty of European Union and the Treaty establishing the European Community (adopted 13 December 2007, entered into force 1 December 2009) 2007/C 306/01.
 Treaty on European Union (Consolidated version 2016) (adopted 7 February 1992, entered into force 1 November 1993) OJ C 202/1.
 Treaty on the Functioning of the European Union (Consolidated version 2016) (adopted 25 March 1957, entered into force 1 January 1958) OJ C 202/1.
 Charter of Fundamental Rights of the European Union (adopted 2 October 2000, entered into force 7 December 2000) OJ C 202/02.
 See footnote 117, art 16; Achmea B.V. v. The Slovak Republic (Award on Jurisdiction)  PCA Case No. 2008-13, .
 See footnote 117, art 6(2).
 See footnote 117, art 3(2).
 See footnote 118, art 67(2).
 See footnote 118, art 77(1)(b)-(c).
 See footnote 118, art 78(1).
 See footnote 118, art 79(1).
 See footnote 118, art 80.
 See footnote 118, art 77(2)(b).
 See footnote 118, art 77(2)(d).
 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105 (13 April 2006).
 See footnote 130, recital 6.
 See footnote 130, recital 7.
 See footnote 130, recital 8.
 See footnote 130, recital 20.
 See footnote 130, art 4(1).
 SBC, art 5(1).
 SBC, art 6-7.
 SBC, art 12.
 See footnote 130, art 13.
 See footnote 130, art 15.
 François Crépeau. (24 April 2013). ‘Report of the Special Rapporteur on the human rights of migrants, Regional study: management of the external borders of the European Union and its impact on human rights’. UN Doc A/HRC/23/46, .
 Regulation (EU) No 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, Recital .
 See footnote 142, recital 3 and 5.
 See footnote 142, recital 11, art 8.
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 Committee on Migration, Refugees and Population, Council of Europe, The interception and rescue at sea of asylum seekers, refugees and irregular migrants (2011) , .
 Hirsi Jamaa and Others v Italy App no 27765/09 (23 February 2012), -.
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 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348 (24 December 2008).
 See footnote 142, art 8.
 See footnote 150, art 6.
 See footnote 150, art 5.
 See footnote 150, art 7(1).
 See footnote 150, art 8(4).
 See footnote 150, art 12(1).
 See footnote 150, art 15(1).
 See footnote 67.
 See footnote 148, , , .
 European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953), art 3.
 Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain Rights and Freedoms other than those already included in the Convention and in the First Protocol thereto (adopted 16 September 1963, entered into force 2 May 1968), art 4.
 See footnote 118, art 79(3).
 See footnote 141, .
 Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorization, OJ L 134/3, 7 May 2014, art 5.
 See footnote 164, art 6.
 See footnote 141, .
 See footnote 141, .
 See footnote 141, ; Scholfield, Piers, “EU migration deal with Turkey is fraught with risk”, BBC, 2 December 2015, Retrieved from <https://www.bbc.com/news/blogs-eu-34975512>.
 “Erdogan threatens to scrap EU-Turkey migrant deal”, BBC, 16 March 2017, Retrieved from <https://www.bbc.com/news/world-europe-39294776>.
 See footnote 148, .
 See footnote 148, .
 See footnote 148, .
 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 180/31 (29 June 2013).
 See footnote 173, art 3.
 See footnote 173, art 4.
 See footnote 173, art 5.
 See footnote 173, art 6.
 See footnote 173, art 13.
 See footnote 118, art 78(3).
 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, OJ L 248/80 (24 September 2015).
 See footnote 180, recital 2.
 See footnote 180, recital 7.
 See footnote 180, recital 23.
 European Commission v Poland, Czech Republic and Hungary Joined Cases C‑715/17, C‑718/17 and C‑719/17 (2 April 2020) .
 See footnote 184, .
 See footnote 184, .
 See footnote 184, .
 See footnote 184, -.
 See footnote 184, -.
 See footnote 184, -.
 See footnote 184, .
 See footnote 184, .
 Mondale, Walter F, United Nations Conference of Indochinese Refugees, 21 July 1979, Minnesota Historical Society, Retrieved from <http://www2.mnhs.org/library/findaids/00697/pdfa/00697-00109.pdf>.