Opinion: the sea is a hotspot for irregular migrant flow and migration control at sea is increasingly strengthened by states through the law
On October 23rd, news broke about the discovery of 39 bodies (31 men and 8 women) in a refrigerated lorry in Essex. This lorry came via ferry from Zeebrugge, Belgium to Purfleet on the River Thames. The 39 Vietnamese are believed to be victims of smuggling and/or human trafficking.
Based on climate change reports, Vietnam is predicted to be among one of the most affected countries by climate change. The 39 dead people in Essex might not have been climate migrants, but what if they were?
We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences
From RTÉ Radio 1's Drivetime, Siobhan Mullaly, Director of the Irish Centre for Human Rights at NUI Galway, and Kevin Hyland, Formerly Britain's first Independent Anti-Slavery Commissioner, discuss the ongoing investigation into the 39 migrants who died in a container attached to a truck in Essex.
Climate migration is not new. An 8th century drought in the Middle East influenced the Muslim expansion into the Mediterranean and southern Europe. Reports show there will be 200 million "forced climate migrants" by the year 2050. These climate migrants will mainly migrate internally, though some might seek international protection of which there is none. Therefore, they are still irregular migrants and will be subjected to the same dilemma at sea. Just like irregular migrants, they will be easy prey for people smugglers and traffickers.
Irregular migration at sea
Over the years, migrants have been classified as regular or irregular. The regular migrants are those who migrate legally to another country, while irregular migrants are those either in transit or already in the chosen country of destination without legal documentation. Migrants fleeing persecution are called "Refugees" and are offered protection under the law so they are not irregular migrants. Irregular migrants are the ones fleeing poverty and climate change, and pursuing a better life.
The sea is a hotspot for irregular migrant flow and migration control at sea is increasingly strengthened by states through the law. In four years, over 13,000 migrants have died, and unfortunately, the numbers are rising. There are "push" and "pull" factors around the decision to migrate and the choice of the destination country. Push factors from the destination country are the political, security and economic situation of such a country, while the pull factors are the economy, asylum seekers’ policies and perceived welcoming ambience of the destination country.
We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences
From RTÉ Radio 1's Today with Sean O'Rourke, freelance journalist Sally Hayden on search and rescue missions at sea
The law of the sea
However, there is no reference to the law itself as a pull and push factor which ultimately leads to death at sea. The law of the sea does not give explicit reference to irregular migrants or migration. However, it does mention "persons in distress" and "ships in distress". Case law points out that there has to be a risk related to loss of life for a ship to be in distress. This qualifies a migrant boat or a rescuing ship as a "ship in distress" and migrants at sea as "persons in distress" despite their legal status.
The legal framework at sea recognises states' duty to render immediate assistance to persons in distress, but there is no corresponding right to be rescued. While irregular migrants at sea are not right holders under the law of the sea, states retain their duty to render assistance. This duty ends upon disembarkation to a place of safety, however, and there are no obligations on states to permit entrance which creates a block to the actualisation of the duty. Consequently, states can prevent NGOs or civil organisation with rescued migrants onboard their vessels from disembarking those rescued within their territories.
International human rights law applies to all humans irrespective of their legal status. However, no case law has recognised the right to be rescued at sea or the duty to authorise disembarkation. Perhaps, this is because it does not exist.
We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences
From RTÉ Radio 1's Morning Ireland, Dr Claire Healy, International Centre for Migration Policy Development, says people are resorting to illegal methods because of tightened immigration laws
A ship in distress which can be a migrant boat or a migrant rescuing ship has a right to stop and anchor at a port. This right to call at a port for ships in distress and the duty to render assistance at sea is, in fact, a legal ‘pull factor’ for irregular migration. However, the measures States take to secure their borders is a push back which ultimately leads to death.
The externalisation of border control
Under international law, states have the duty to control their borders to any "extent possible" to fight against people smuggling and human trafficking. This has been widely transposed into the EU law as "the facilitators' package" and has led to the externalisation of border control. This simply means that EU member states control migration across their borders through policy agreements with other organs and countries.
Research in 2018 concluded that the European border control measures increase criminal activities in and out of Europe such as people smuggling, trafficking in persons and exploitation of labour. The Essex case is a clear example of this, as ongoing investigations reveal that the suspects are persons from Northern Ireland and Ireland.
Almost all EU member states criminalise persons and organisations who conduct humanitarian assistance at sea
As a result of the facilitators' packages, almost all EU member states criminalise persons/organisations who conduct humanitarian assistance at sea. This discourages some civil actors and NGOs from providing such assistance at sea, which in turn leads to migrants drowning. This facilitators package is a push back against the hope given by the pull factors which still draw migrants to the sea. They rely more on facilitators to escape life-threatening perils but, in the Essex case, the victims were very unlucky.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
