Breakfast Briefing
June 15, 2005

The Migration Policy Institute (MPI) held a Breakfast Briefing on June 15, 2005 to discuss the global issue of Interception and Rescue at Sea, and to share lessons and perspectives that emerged from a two-day roundtable meeting on this subject.  Panelists included: Grainne O’Hara, Legal Officer in the Protection Policy and Legal Advice Section of the Division of International Protection at the United Nations Office of the High Commissioner for Refugees (UNHCR); Peter Mares, journalist and Senior Research Fellow with the Institute for Social Research at Swinburne University of Technology in Melbourne, Australia; Lou Orsini, Assistant Chief in the Office of Law Enforcement of the US Coast Guard; Maria de Donato, Head of the Legal Office at the Italian Council for Refugees; and Guy Goodwin-Gill, Senior Research Fellow at All Souls College, Oxford, and Professor of International Refugee Law at the University of Oxford. The panel was moderated by Joanne van Selm, Senior Policy Analyst at MPI.

Presentation

Grainne O’Hara gave a brief overview of recent changes in the UN’s response to situations of interception or rescue at sea.  She explained that several UN agencies have mandates that call on them to respond to such situations, which has led to a successful model of cooperation.  These agencies, which include UNHCR, the International Maritime Organization (IMO), which has primary responsibility for maritime safety and security, and the Office of Drugs and Crime, have joined together in a working group since 2001 to discuss how to coordinate their responses to situations of interception or rescue at sea.  The IMO has also led debate on areas where international law could be strengthened, developing rules and regulations to fill gaps in international law.  UNHCR participated in this process, bringing the refugee protection perspective to the development of legislation covering search and rescue, and is collaborating on developing new guidelines on rescue at sea for ship’s masters.

Peter Mares outlined the events of the Tampa affair, which was a turning point in Australian migration history.  In August 2001, a Norwegian cargo ship called the Tampa rescued 344 people, mostly Afghans and Iraqis, from a vessel in distress in the waters between Australia and Indonesia.  The Tampa’s captain was advised to return the migrants to Indonesia, but the migrants threatened to jump overboard if not taken to Australia.  Concerned for the safety of those on board, the ship’s master headed for Australian territory.  However, when the Tampa approached Christmas Island the Australian government refused to allow the asylum seekers to disembark, leaving them stranded on the boat.  When the ship’s master became concerned about the medical situation on board, he defied orders and again entered Australian territory.  After much negotiation between several nations and UNHCR, the majority of the asylum seekers were taken to the island of Nauru for processing of their cases. The remaining asylum seekers were taken to New Zealand.   

After this incident, Australia initiated programs to divert migrant boats to Nauru and Papua New Guinea where asylum applications would be processed, and developed a ‘regional solution’ through which would-be migrants were directed to UNHCR within Indonesia while planning an onward journey to Australia.  Mares stated that the flow of asylum seekers traveling by boat to Australia did halt after this policy change, although other factors, including the military interventions in Afghanistan and Iraq, could have contributed to that change. Mares also indicated that the new plan was very expensive, created great suffering for asylum seekers, and had damaged Australia’s international reputation.

Lou Orsini explained the procedures of the US Coast Guard when intercepting migrants, primarily from Cuba and Haiti, at sea in the Caribbean.  He explained that the Coast Guard monitors common migrant transit routes on the high seas.  When they encounter boats that are not seaworthy, they first work to provide safety for those on board, and then turn their focus to law enforcement.  Officials transfer the intercepted migrants to Coast Guard cutters, collect personal information, perform a basic medical screening, and provide food, shelter, and hygiene facilities.  They generally have an interpreter on board, or can get one from another cutter if needed.  If the migrants show any signs of fear of return, or indicate a history of persecution or torture, the Coast Guard calls in asylum officers to provide an asylum pre-screening interview.  Anyone demonstrating credible fear of return is brought to the naval base at Guantánamo Bay for further screening.  If asylum seekers are found to have well-founded fear, they are resettled to countries other than the US, otherwise they are repatriated.

Maria de Donato spoke about migration issues in the Mediterranean Sea.  Italy, Malta, and Spain have all experienced significant flows of migrants arriving by sea.  Since 1998, Italy has worked with Albania and North African countries to attempt to stem migration flows.  She noted that these flows generally consist of a mix of asylum seekers and economic migrants, and that all are in the hands of smugglers.  Italy and Spain both try to intercept migrants before they reach the mainland, and make refugee status determinations on their non-mainland territories — Italy on the island of Lampedusa, and Spain on its territories of Cueta and Melilla in northern Morocco.  In the past, Italy was generous in granting refugee status, but more recently has established stricter procedures for migrants from some countries.  Those from North African countries are immediately returned, while those from Western African countries are accommodated in detention centers.  De Donato explained that European countries have devised various bilateral and multilateral agreements on migration policy, but expressed concern about the lack of transparency of such agreements, especially a recent agreement between Italy and Libya.  She called for greater oversight by human rights organizations.

Guy Goodwin-Gill advocated for an international response to maritime migration crises under the direction of a group modeled on the UN Interagency Standing Committee.  Such a group could coordinate responsibility during instances of rescue at sea and resolve differences that might emerge.  In developing solutions, the group would account for international law and the Safety of Life at Sea Convention, as well as states’ disparate interests, and the need to protect migrants.  Such a group should involve states, UN agencies, the IMO, UNHCR, the International Chamber of Shipping, and the International Organization for Migration in working toward coordinated migration solutions.    Goodwin-Gill stated that after the Indochinese refugee crisis in the 1970s, governments from around the world rallied to provide massive resettlement for the refugees.  However, today there is no such sense of urgency, and countries are much less likely to allow migrants intercepted at sea to disembark on their shores.  He stated that international conventions on refugees are clear in stating that refugees must not be sent back to where they will be tortured or killed, and that when migrants must be sent back to their countries of origin, it must be done in safety and with dignity.  Goodwin-Gill concluded that while states are still struggling to effectively handle ongoing migration challenges, the constant oversight of international organizations can ensure compliance with basic standards.

Question and Answer Session

US Coast Guard practices

Many of the questions during this session were directed to Lou Orsini, and concerned the practices of the US Coast Guard.  One audience member asked for his response to reports of US mistreatment of Haitian migrants during repatriation to Haiti. Orsini answered that in one instance US Embassy representatives were prevented from meeting migrants at the dock, as they normally would, because roads were blocked by a political protest.  He further explained that a man who was shackled aboard a US Coast Guard cutter had been creating a disturbance, and was restrained for safety reasons after physically resisting efforts to restore order.  Orsini stated that although he was not present, the report he was given indicated that while the man was unhappy to have to return to Haiti, he did not show signs of fear of return.  Another audience member questioned whether it was true that Cuban, Haitian, and Chinese migrants were all treated differently.  Orsini explained that all Cuban migrants are read a statement explaining that they will be given a credible fear interview if they desire, Chinese migrants are given a written questionnaire asking why they have left China, and all other migrants are given a credible fear interview if they show or state a fear of return (the ‘shout test’).  He explained to another audience member that Creole interpreters are always available when needed.

Policy emulation 

One participant asked whether the tendency for countries to emulate each other’s migration policies, in what some see as an erosion of standards, is a practice that takes place through formal channels.  O’Hara and Mares answered that there are formal channels for discussion and exchange, especially within the IMO and in UNHCR processes, and that Australia’s government has made explicit attempts to share its policy with other nations.  Goodwin-Gill added that forces of international and national law are sometimes effective in counteracting the emulation of restrictive policies and preserving basic standards.

Assisting migrant- sending countries

Another discussion centered on ways to facilitate the reintegration of migrants in their countries of origin upon return.  Goodwin-Gill noted that European states have not provided assistance for reintegration, adding that they have also been hesitant to address the root causes of migration by either focusing on economic development or the strengthening of democracy in migrant-sending countries.  De Donato emphasized that European countries often mistrust each other when working out the details of readmission procedures, despite the existence of bilateral and multilateral readmission agreements. 

Building international cooperation 

A final question focused on the possibility of learning from experience and of creating international cooperation in order to improve systems of resettlement and asylum.  O’Hara answered that the international community has good experience to build on, citing the response to the 1970s Indochinese refugee crisis.  She called for transparent, cooperative responses to asylum seekers, especially in the Mediterranean, to avoid the constant shifting of blame.  Goodwin-Gill ended the discussion by stating that outside observers are needed to ensure that states comply with international conventions on refugees and human rights, rather than pursuing their own national interests.