”The ‘permanent crisis’ narrative employed by destination countries in Europe, North America, and Australia, has allowed them to structuralise ‘exceptional’ measures as part of their domestic apparatuses of border control in their war against irregular migration. This is particularly visible at sea, where ‘pull-backs’ by proxy, ‘privatized’ interdiction by merchant vessels, and instances of non-rescue challenge the core principles of international protection. Many have written on the erosion of non-refoulement in extraterritorial contexts, denouncing the difficulties facing ‘boat migrants’ in reaching safe haven. The extra-territoriality of the oceans, removed from the public eye, creates an ‘out of sight, out of mind’ effect favouring the excesses of power characteristic of Operation Sovereign Borders in Australia, the mare clausum approach followed by the EU, and the ‘wet foot / dry foot’ arbitrariness still guiding the US Caribbean interdiction programme. These initiatives have a well-documented negative impact on the rights of ‘boat migrants’ and fail to address the root causes of displacement. Instead, as several studies corroborate, they divert flows towards ever more perilous routes and contribute to the raise of death tolls. They entrench insecurity, fuelling not only the original causes of flight but creating new dangers impeding access to protection – if not denying plain survival. The question hence arises as for whether ‘policies based on deterrence, militarization and extraterritoriality’, denounced by UN Special Rapporteur Agnès Callamard and others, ‘which implicitly or explicitly tolerate [and perpetuate] the risk of migrant deaths as part of an effective control of entry’ are compatible with international law.* What is more, the point is to elucidate whether trapping migrants in a vicious circle of more control, more danger, and more displacement, where they can only rely on facilitators to escape life-threatening perils, does not per se amount to a form of ‘persecution’ in the sense of Article 1(A)2 of the 1951 Refugee Convention. This is the question this paper proposes to explore to determine the limits that international (refugee) law should be understood to impose on consolidating practices of ‘remote’ (yet violent) maritime border control that deter entry by endangering human life, whether purposely or inadvertently. The role of knowledge (rather than intent), the foreseeability of lethal consequences of policy measures, and due diligence obligations to protect physical integrity from irreversible harm will be examined in this framework. The final goal is to (re-)define the contours of what constitutes a legitimate exercise of sovereignty when managing maritime migration flows.
*Report of the Special Rapporteur of the Human Rights Council on Extrajudicial, Summary or Arbitrary Executions, Agnès Callamard, A/72/335 (2018), para 10 (emphasis added).
This lecture is organized as part of the course Mapping Maritime Frontiers in the Eastern Mediterranean at Columbia University, taught by Nora Akawi and Naor Ben-Yehoyada. The event is co-sponsored by the Department of Anthropology, Studio-X Amman at the Graduate School of Architecture, Planning and Preservation and Columbia Global Centers | Amman, the Institute for Social and Economic Research and Policy, the European Institute, and the Middle East Institute at Columbia University.