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The Human Tragedy of Illegal Migrants

Saturday, 28 November 2015
by Tullio Scovazzi, Professor of International Law, University of Milan-Bicocca, Italy
The Human Tragedy of Illegal Migrants
The Human Tragedy of Illegal Migrants[1]

In the last years too many people have put at risk their lives in attempts to cross a border. They are driven by the desire to enter into a country where they will be safe from persecution, poverty, conflicts, natural disasters or other calamities and where they will have the chance to spend a decent life. They are ready to face social discrimination and vulnerability, after arriving somewhere and living there irregularly. The hope to migrate is the reason why the waters of some seas, such as the Mediterranean, have become the graveyard of thousands of human beings, including children, who are moving from a number of African or Asian countries to reach the European Union. This is a great human tragedy that unfortunately is not yet completely understood by the States of destination, including the European Union where an adequate immigration and asylum policy is lacking.

The human right to mobility is not fully protected by international law. Art. 13, para. 2, of the 1948 Universal Declaration of Human Rights provides that every individual has the right to leave any country, including his own. The same right is protected by Art. 12, para. 2, of the 1966 International Covenant on Civil and Political Rights. However, it remains an asymmetrical right, as it is not complemented by a corresponding right to immigrate. Under customary international law and unless different provisions are applicable because of treaties in force, any State has the sovereign right to allow or not to allow migrant aliens to enter its territory and can adopt legislation limiting immigration flows. Such legislation is in force today in many States for a number of reasons.

In the present situation of so-called globalization, goods and capitals move freely or almost freely, but not human beings. If they want to escape from persecution, poverty or conflict, human beings are often forced to cross borders clandestinely at the cost of great risk and suffering. Looking at the question from the point of view of the migrant, one may ask what is the meaning of a right to emigrate without a corresponding right to immigrate. Where are migrants entitled to settle if they are rejected by the States of destination? On the high seas? In the unclaimed sector of Antarctica? On the Moon or in outer space?

If illegal migrants are in distress at sea, the duty to render assistance to persons in danger is an expression of the principle of protection of human life which has a longstanding tradition in maritime custom and is reflected in Art. 98 of the 1982 United Nations Convention on the Law of the Sea. Several treaties adopted within the framework of the International Maritime Organization aim at ensuring safety of life at sea, in particular the 1979 International Convention on Maritime Search and Rescue. It provides that any person in distress at sea has the right to be rescued and brought to a place of safety. Unfortunately, the thorny question left open by the Search and Rescue Convention is how to determine where the place of safety is located and consequently where the rescued persons are to be delivered. This does not help to ensure adequate assistance to rescued people, especially if they consist of large groups of migrants.
According to the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, illegal migrants have the right to be treated humanely and not as criminals. Also illegal migrants enjoy the human rights granted to any individual and arising from customary international law and treaties in force. In particular, they have the right not to be returned to a State where they could be tortured, as provided for, inter alia, in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Some illegal migrants qualify to be considered as refugees under the 1951 Convention Relating to the Status of Refugees. Unfortunately, the international definition of refugee does not include people who are trying to flee conflicts, either international or internal, poverty or natural disasters (so-called war, economic or environmental refugees). Most of present illegal migrants belong to this kind of people.
 If illegal migrants qualify as refugees, they have the right not to be returned to a place where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. While the right to receive asylum might be granted under the national legislation of States parties, the Refugees Convention does not provide the refugee with such a right. Here is another instance of asymmetrical rights in international law. A refugee, who has a right not to be returned to a country where he is threatened, has no right of entry into a given State. He could be rejected to a State where he is not threatened. But the latter in its turn has no obligation to allow the refugee to enter its territory. If States, one after the other, reject the refugee, where should he be entitled to settle? On the high seas? In the unclaimed sector of the Antarctic continent? On the Moon or in outer space?

Athough the Refugees Convention is not clear enough on such a crucial question, it seems implied in the object and purpose of this treaty that a refugee who is outside his country and presents himself to an official of a State party has a right to submit an application for asylum and to have it processed and screened in a fair and efficient way. States cannot play with asymmetrical rights beyond a certain extent and reach the point where the true objective of a treaty of humanitarian nature is denied. If the refugee cannot decide whether, where and when he will be admitted, he must at least be granted a right to present himself to submit an application.

At sea, the identification of asylum-seekers and the processing of their applications are activities that normally cannot be carried out on ships. It must consequently be assumed that the rescuing or intercepting State is under an obligation to disembark the potential refugees in a place where they can exercise their right to fair and efficient asylum procedures. Regrettably, some States have taken the position that human rights treaties, including the Refugees Convention, do not apply outside the national territory and have engaged in policies of pushing-back potential refugees at sea. This was in the past also the policy of Italy which in 2012 was held by the European Court of Human Rights responsible for violations of the European Convention of Human Rights in a case relating to the pushing-back to Libya of illegal migrants.[2] In fact, the theory that human rights treaties apply only within the territory of States parties is not only wrong, but is a mockery of the rule of law. Respect for human rights is due to any individual who is under the power or effective control of any agent of a State party, wherever he or she happens to act, including the high seas.

Today Italy has radically changed its previous attitude. In October 2013, after 366 migrants drowned in the vicinity of the island of Lampedusa, it started a policy of engaging units of the navy and coast guard to face the humanitarian emergency occurring in the waters of the South-Central Mediterranean Sea. Illegal migrants and asylum seekers found in unseaworthy boats, where they are often abandoned by smugglers, are rescued and transported to the Italian territory where applications for asylum are processed. A new and more balanced regime of asylum is expected at the European Union level to better share the burdens met by Mediterranean member States.
In conclusion, many of the relevant facts show that illegal migrants are too often the victims not only of smugglers, but also of a number of States which try to evade their legal and moral duties by resorting to shows of strength against the weakest human beings or to hardly credible legal technicalities. The treaties so far concluded are not sufficiently clear to deal with all the problems posed by this great human tragedy. The very invention of asymmetrical rights undermines the merits of international law in addressing the basic human needs of illegal migrants and asylum seekers among them. This is the reason why, where different views are admissible, a clear position should be taken in favour of the weaker subject, that is the illegal migrant, and against the stronger subject, that is the State. If it appears that the international rules in force do not offer sufficient protection for the weaker party, the only conclusion to be drawn is that the present regime should be changed and improved as soon as possible.

  1. This short paper summarizes considerations developed elsewhere, for example in SCOVAZZI, The Particular Problems of Migrants and Asylum Seekers Arriving by Sea, in WESTRA, JUSS & SCOVAZZI (eds.), Towards a Refugee Oriented Right of Asylum, Farnham, 2015, p. 177.
  2. Judgment of 23 February 2012 in the case Hirsi Jamaa and others v. Italy. The Court found violations of Art. 3 (Torture) and Art. 13 (Right to an effective remedy) of the Convention and Art. 4 of Protocol No. 4 (Prohibition of collective expulsion of aliens). See also the report of the visit made in 2009 by a delegation of the European Committee for the Prevention of Torture, established under the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The report casts many doubts on Italys compliance with its international obligations.

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