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91. The Interdiction of Asylum Seekers at Sea: Law and (mal)practice in Europe and Australia

Author:
Violeta Moreno-Lax
Publication Date:
05-2017
Content Type:
Policy Brief
Institution:
Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney
Abstract:
The phenomenon of irregular migration by sea or ‘boat migration’ is not new, 1 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.
Topic:
International Law, Migration, Refugee Crisis, Deterrence, Protection, and Asylum Seekers
Political Geography:
Europe and Australia

92. Creating safe zones and safe corridors in conflict situations: Providing protection at home or preventing the search for asylum?

Author:
Geoff Gilbert and Anna Magdalena Rüsch
Publication Date:
06-2017
Content Type:
Policy Brief
Institution:
Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney
Abstract:
The conflict in Syria has prompted renewed calls for so-called ‘safe zones’ and ‘safe corridors’ to prevent people from needing to seek protection abroad as refugees, and to encourage refugees to return home. Given the inherent dangers that arise from trying to leave a conflict zone and travelling onwards to seek asylum, the idea of creating safe zones within States has been put forward as a positive humanitarian alternative. Yet, there are a number of legal and practical preconditions that must be met for safety to be guaranteed. The reality of conflict today means that in all but the most extreme circumstances – where flight is impossible – safe zones cannot be a substitute for asylum in another country. They may be the best response to people trapped in a conflict zone, but that is all. They do not provide true ‘protection’ as envisaged by international refugee law. Furthermore, the law is underdeveloped and the practice is too erratic and random for safe zones to be a proper response to a humanitarian crisis. If States in the global north want to spare refugees the dangers of irregular flight, they should establish proper pathways to safety through humanitarian and migration channels, and push for peace in those areas of the world where conflict is rife.1 Safe corridors could provide that route out – as well as operating to allow those trapped in conflict zones to carry on with their lives by safely accessing work, education, markets and health care, to the extent possible. This policy brief begins by asking some fundamental questions about safe zones and safe corridors, and sketching the complexity of the international legal frameworks that apply. It then briefly examines the history of the law and practice of safe zones and safe corridors, before analysing the preconditions to their creation, their qualities and character, how they are accessed, and how protection and other human rights can be assured. Finally, it considers the responsibility and accountability of various international actors with respect to safe zones and safe corridors. The existence of different terms to describe the concepts, and the interplay of several different sub-branches of international law, make the analysis more complicated, but the conclusion reached is that in all but the most extreme circumstances – where flight is impossible – safe zones can never provide a substitute for asylum. They cannot provide the same degree of protection that a safe third country can. By contrast, safe corridors can enable people to flee to a place of safety, and at the very least can help those unable to leave by facilitating access to vital services.
Topic:
Syrian War, Asylum, Armed Conflict, Protection, and Safe Zones
Political Geography:
Global Focus

93. In search of commitments: The 2016 refugee summits

Author:
Elizabeth Ferris
Publication Date:
11-2016
Content Type:
Policy Brief
Institution:
Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney
Abstract:
An extraordinary series of meetings took place in 2016 to respond to perceptions of an unprecedented global refugee crisis. This policy brief traces the context and the results of these meetings and explores the common themes that emerged over the course of the year. The meetings examined include: the Supporting Syria and the Region Conference, held in London in February; the High-Level Meeting on Global Responsibility Sharing through Pathways for Admission of Syrian Refugees, held in Geneva in March, the World Humanitarian Summit, held in Istanbul in May; the Summit on Refugees and Migrants, held in New York on 19 September; and the United States (US) Leaders’ Summit, held in New York on 20 September. Although not all these meetings were technically ‘summits’, they all sought to mobilise attendance and commitments at the highest political level, and for this reason are referred to in this policy brief as ‘the summits of 2016.’ Four specific contextual factors set the stage for the summits of 2016. First, the United Nations (UN) had scored major successes in summits focused on development, climate change and disaster risk reduction in 2015. Secondly, the growing carnage in Syria and the inability of the international community to address it was a vivid backdrop to all of the summits. A third and related trend was the dramatic increase in requests for humanitarian funding. Donors had tripled their contributions to humanitarian appeals over a decade – and yet it still was not enough. Finally, the summits took place at a time of political change. The United Nations Secretary-General’s term was coming to an end. There were nasty politics in Europe with the rise of right-wing populist parties and the United Kingdom (UK)’s decision to leave the European Union. Xenophobic politics in the United States had led to a vociferous reaction to the resettlement of Syrian refugees. These all contributed to a sense that the system itself was not fit for purpose.
Topic:
Migration, United Nations, Refugee Crisis, Dialogue, and Protection
Political Geography:
Europe, Syria, Global Focus, and United States of America

94. Extraterritorial processing in Europe: Is ‘regional protection’ the answer, and if not, what is?

Author:
Jane McAdam
Publication Date:
05-2015
Content Type:
Policy Brief
Institution:
Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney
Abstract:
The loss of over 700 lives in a single incident in the Mediterranean on 18 April 2015, following a six-day period in which over 10,000 migrants were rescued, has sparked renewed debates about whether extraterritorial processing – sometimes called ‘offshore processing’ – might save lives at sea.1 Despite a plethora of European proposals over the past 20 years, none has ever been sufficiently fleshed out to receive adequate support to be implemented. Legal and practical concerns have proven insurmountable. There is also recognition that while regional or other external processing arrangements may provide a useful complement to other protection mechanisms, they are not a solution in and of themselves. This paper examines European proposals for extraterritorial processing and the establishment of regional protection centres by considering: • their policy rationale; • their history; • legal concerns; • comparisons with Australia and the United States; • the role of host States; • models for regional processing; and • complementary strategies that can provide a protection ‘toolkit’. Cooperative regional approaches can help States to develop more coherent, systematic and predictable responses to refugee movements. But they must acknowledge the concerns and interests of all participating States. And timely solutions for refugees will be central to their success or failure. The paper concludes by offering a flexible range of tools that can help States to provide protection in a safer, and more regular, manner. Unless States create measures to allow people to seek protection lawfully, dangerous journeys will continue.
Topic:
Refugees, Protection, Asylum Seekers, and Extraterritorial Processing
Political Geography:
Europe, Australia, United States of America, and Mediterranean

95. Regional refugee protection in comparative perspective: Lessons learned from the Asia-Pacific, the Americas, Africa, and Europe

Author:
Kate Jastram
Publication Date:
11-2015
Content Type:
Policy Brief
Institution:
Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney
Abstract:
Refugee movements in South-East Asia, the Middle East and Europe during 2015, along with the fact that more people are displaced now than at any time since the Second World War, provide an opportune moment to revisit some of the key regional cooperation arrangements for refugee protection. There are lessons to be learned, in particular from the 1989 Comprehensive Plan of Action for Indochinese Refugees, and its precursor agreement in 1979 (CPA), as well as from the 1989 International Conference on Central American Refugees (CIREFCA). These two programs were widely seen as successful when they were implemented, and they have stood the test of time. Regional refugee protection cooperation arrangements can provide practical, principled responses by several States working together to meet the protection needs and humanitarian challenges posed by the movement of asylum seekers, whether fleeing in large or small numbers. There is no single definition of a regional cooperation arrangement, but the most important and useful examples are those that are protection-oriented. The need for States to work cooperatively is found in the Preamble to the 1951 Refugee Convention, and UNHCR’s Executive Committee, comprised of 98 States, has provided a great deal of guidance on regional approaches to protection. States participate in regional arrangements because they can be an effective means of providing protection in a manner beyond the reach of a single State. Regional arrangements can be flexible and responsive to the particular circumstances presented, within a basic framework of protection principles. The legal issues relevant to regional refugee cooperation arrangements can be organised in three categories: non-refoulement (non-return) and other substantive standards; procedural standards; and standards of treatment.
Topic:
Regional Cooperation, Refugees, Protection, and UNHCR
Political Geography:
Europe, Middle East, and Southeast Asia

96. Emergency State and Civil Protection in the Republic of Kosovo

Author:
Florian Qehaja
Publication Date:
07-2008
Content Type:
Policy Brief
Institution:
Kosovar Centre for Security Studies (KCSS)
Abstract:
Matters of emergency management present one of the most complex and very sensitive segments of every society. Every country gives a priority to the emergency readiness because preventive measure would minimize natural disasters which could threaten the state. The concept of civil protection mainly belongs to the internal affairs of states1 nevertheless it is a flaw to say that this is a responsibility of exclusively one state. Natural disasters can occur not only within one state- they can have regional and wider repercussions. Truly, the matters of civil protection are already becoming more of international character.
Topic:
Natural Disasters, Crisis Management, Protection, and Emergencies
Political Geography:
Europe, Kosovo, and Balkans