The Law of the Sea

There are few things more despicable than a Government that manufactures outrage in order to distract from its own failings. The latest example  is the UK Government’s ridiculous response to a few desperate migrants crossing the English Channel in boats. The Home Secretary, Priti Patel, has appointed a “Clandestine Channel Threat Commander” (whatever that is supposed to mean) and is apparently considering sending Royal Navy to protect the United Kingdom from the terrifying women and small children arriving in dinghies. Pathetic.

Mind you, I think sending the Royal Navy to the Channel is in some ways a good idea. Once there they could offer greater assistance to small boats in peril on the sea and bring their occupants safely to port in England. That, after all, would be their duty under international law. I know we can’t expect the Home Secretary to either know or care about the law, but I suspect Royal Navy officers do. The Law of the Sea is far older than any Government.

Following age-old maritime traditions, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) obliges that a ship’s master “render assistance to any person found at sea in danger of being lost” and to rescue those in distress so long “as he can do so without serious danger to the ship, the crew or the passengers” of his own vessel. The International Convention for the Safety of Life at Sea (SOLAS) includes a similar obligation requiring ship masters, on hearing about a vessel in distress, to provide assistance and inform the search and rescue service that they are doing so. The International Convention on Maritime Search and Rescue requires parties to provide assistance to anyone in distress “regardless of the nationality or status of such a person or the circumstances in which that person is found.” These laws require the rescue of survivors from unseaworthy vessels crossing the English Channel as much as they do to the Mediterranean (where they are sadly routinely flouted).

Not only is there both a moral and a legal duty to rescue those in danger of losing their life at sea, it is the responsibility of the rescuer to take them to a place of safety. Amendments to the Convention for Safety of Life at Sea and the International Convention on Maritime Search and Rescue codify this obligation of Member States to ensure that the rescued survivors disembark the vessel in a safe place. A safe place is one “where their basic human needs (such as food, shelter and medical needs) can be met.” People rescued in national territorial waters (usually within 12 miles of the coast) become the responsibility of the nation concerned.

There is a far greater humanitarian crisis in the Mediterranean, of course, and we should not forget the failure of other countries (and the European Union) to deal with it properly, but that is not an excuse for Britain to behave so callously.

I saw a comment on Twitter the other day – from a person I subsequently blocked – arguing that migrant boats should be rammed and the occupants allowed to drown. Proudly in his Twitter profile was the slogan. `ALL LIVES MATTER’.

32 Responses to “The Law of the Sea”

  1. Phillip Helbig Says:

    Your interpretation of international sea law is correct, but keep in mind that it was codified at a time when one could safely assume that people in danger at sea got into such danger accidentally, not on purpose. The migrants in boats today put themselves into danger on purpose, for the specific reason that they want to get rescued, because that is the easiest way in which they can enter a country where they would rather be (if there were an easier way, I think that they would take it). Sending the Navy, or anyone else, to rescue them would send the signal to others to come, essentially resulting in a de facto open-borders policy. If that is what you want, then you should say so explicitly; if not, then you should clarify your position and how to implement it in practice.

    There is no way that Europe can accomodate all who wish to come. I think that it is particularly cynical to allow those in who have enough money to pay someone to organize their journey, while those who are really “tired and poor” have no chance. It is also cynical to see those who organize such journeys (and of course are paid for it) classified as criminals while at the same time accepting the results of their actions as faits accomplis—most recognized asylum seekers would not have reached the country which offered them asylum were it not for the help of those who aided them in illegal entry. There is also cynicism in keeping asylum laws on the books but actively preventing those seeking it to enter (in practice, the only way to claim asylum, in many cases, is after illegal entry).

    There is also a wide range of positions between violent right-wing xenophobic nationalism and the idea that there should be no regulation of immigration whatsoever. A big problem in the public discussion is claiming that one’s opponent who disagrees on some details is at one or other end of the spectrum.

    • telescoper Says:

      It’s not illegal to enter a country to seek asylum. People crossing the channel in a boat to claim asylum are not breaking any law.

      • Phillip Helbig Says:

        According to the Dublin Agreement, the first country entered which is party to the agreement is responsible for deciding on asylum. I doubt that those crossing the Channel are not coming from a country party to the Dublin Agreement.

        Whether one thinks that the Dublin Agreement is a good idea is, of course, a completely different question.

      • telescoper Says:

        The Dublin Agreement places a duty on the country where an asylum application is lodged. That does not apply to people crossing from France who did not seek asylum there.

      • Phillip Helbig Says:

        I think that it is safe to say that the law is not completely clear.

        What is clear is that, in most cases, one has to be in the country or at a point of entry in order to claim asylum, hence efforts by countries to prevent people from getting close enough to claim asylum; that is the cynicism I referred to above.

        In any case, the “right to enter” applies to those claiming asylum, not to everyone (it can apply to some others, such as refugees). Of course, anyone can utter the word and, according to the law, be granted entry, but if asylum is not granted in a particualr case, one doesn’t have the automatic right to stay just because one tried, and failed, to obtain asylum.

      • telescoper Says:

        In any case the UK is no longer in the EU so it no longer has the right to return migrants to another EU country.

      • Phillip Helbig Says:

        “The Dublin Agreement places a duty on the country where an asylum application is lodged. That does not apply to people crossing from France who did not seek asylum there.”

        The whole point of the Dublin Agreement is that one is not allowed to pick and choose where one wants to seek asylum; it has to be at the first country entered. A country returning asylum seekers to the Dublin-Agreement country from which they came is fully within its rights, regardless of whether they applied for asylum there.

        Again, the question whether the Dublin Agreement is practical, useful, moral, good, etc. is a different question.

      • telescoper Says:

        How would you know when a refugee from Iraq lands in Kent which was the first EU country they entered? The probably don’t know themselves.

      • Phillip Helbig Says:

        “How would you know when a refugee from Iraq lands in Kent which was the first EU country they entered? The probably don’t know themselves.”

        I think that you severely underestimate the knowledge refugees have. As many people have known since 1066, it is not exactly easy to enter England; they are doing it for a reason rather than just ending up there by chance. Do you really think that those arriving in England in dinghies didn’t know that they were recently in a country where they could have applied for asylum? Either they applied and intentionally left, which is a violation of the Dublin Agreement, at least in spirit, or they intentionally didn’t apply, which is also a violation, at least in spirit. In the first case, if they applied, why did they leave? In the second case, the fhey didn’t apply, why did they journey through so many countries between Iraq and the UK without applying?

      • telescoper Says:

        Simple. They can speak English rather than French or Italian or Hungarian or whatever. Do you think they traveled on tourist coaches that stopped for sightseeing on the way? They probably spent most of the journey in the bank of a lorry and had little idea where they were.

      • telescoper Says:

        An alternative case, which for some reason Brexiters are not making, is that the EUSSR is a terrible place that nobody would want to live in, so their desire to come to Britain is quite reasonable.

      • Phillip Helbig Says:

        I”In any case the UK is no longer in the EU so it no longer has the right to return migrants to another EU country.”

        https://commonslibrary.parliament.uk/home-affairs/immigration/what-is-the-dublin-iii-regulation-will-it-be-affected-by-brexit/ says

        “It will still be possible for a UK asylum application to be considered inadmissible if the applicant first travelled through another EU country. This will be done through changes to the UK’s immigration rules which ‘ensure[s] continuity of approach, by widening the scope of other third country Rules to deal with these cases.'”

      • Phillip Helbig Says:

        http://www.biicl.org%2Fdocuments%2F1531_faq_-_brexit_and_uk_refugee_law_and_policy.pdf says:

        “Q: What does BREXIT mean for the situation in Calais?
        A: The UK and French governments have signed an agreement that allows the UK to undertake border control on
        French territory thereby preventing people from crossing to the UK and seeking protection there. This agreement was
        reached independently from the European Union and therefore in theory will not be effected by BREXIT. In practice
        however, France might re-consider it’s position if the UK is no longer part of the EU and the Dublin system. This in turn
        might result in a higher number of spontaneous arrivals, coupled by the inability of the UK to return those individuals to
        other countries that might be responsible for that individual under the Dublin system.”

        So, at least for now, Brexit seems to be irrelevant here.

        In any case, a transition period for Brexit is in place until 31 December 2020 so Brexit is, until then, completely irrelevant to this discussion.

      • telescoper Says:

        “in theory”…

        I need hardly point out the spectacular lack of success the British Government has had in negotiating anything over the last few years.

      • Phillip Helbig Says:

        “In practice however, France might re-consider it’s position if the UK is no longer part of the EU and the Dublin system.”

        As far as I know, that hasn’t happened.

      • Phillip Helbig Says:

        “Simple. They can speak English rather than French or Italian or Hungarian or whatever. “

        Right. So they intentionally came to England; they didn’t just happen to show up there.

        “They probably spent most of the journey in the bank of a lorry and had little idea where they were.”

        Those coming by boat got out of the lorry at some point.

      • telescoper Says:

        Of course they came to England intentionally. They probably sold all their possessions to pay for the trip, arriving with just the clothes they were wearing. Rightly or wrongly they reckoned they would have a better chance of making a new life in a country where they could speak the language.

      • Phillip Helbig Says:

        “An alternative case, which for some reason Brexiters are not making, is that the EUSSR is a terrible place that nobody would want to live in, so their desire to come to Britain is quite reasonable.”

        If that means ex-USSR then, sure, I wouldn’t want to live there, but AFAIK the countries of the former Soviet Union are not party to the Dublin Agreement.

        Some former satellite countries are, and I wouldn’t want to live in them. However, as with the Dublin Agreement itself, one must distinguish between the facts of what laws exist and what they specify, and the opinion whether those laws are good. Two separate questions.

        Of course, most people would like to have a higher standard of living than they have. By extension, should they be allowed to break any law which increases their standard of living?

  2. brissioni Says:

    I don’t believe migration will end given the state of the world, so why not get a plan for helping migrants fit in wherever they migrate to.

    • Phillip Helbig Says:

      Because it won’t work in practice.

      • telescoper Says:

        Translation: I don’t want it.

      • Phillip Helbig Says:

        Your translation is completely wrong. It would indeed solve many problems if there were a workable plan to help migrants fit in wherever they migrate to. I’ll believe it when I see it.

        I don’t want to die, but I will. I would expend considerable effort to avoid death. If I say that there is no workable scheme to avoid death, that should not be construed to mean that I don’t want such a scheme.

    • Phillip Helbig Says:

      Also, different people have different ideas about what it means to “fit in”. In most cases, people can fit in if they want to, even to the extent that they are mistaken for natives by the natives. Although capacities are finite, the migrants who want to fit in are normally not the problem.

      Let everyone who wants to come to Europe from Africa do so, then, so that they can fit in and participate in society, let them vote. See what happens to LGBQ+ rights.

    • telescoper Says:

      The real crisis of immigration in the UK is that there simply isn’t enough of it.

  3. telescoper Says:

    Here is an interesting discussion of refugee and asylum law.

    http://eulawanalysis.blogspot.com/2020/08/updated-qs-and-as-on-legal-issues-of.html?m=1

  4. Christopher Leavitt Says:

    If the migrants are described as an invasion would it not be the Navy’s responsibility to repel them?

    • telescoper Says:

      They’re being described as an invasion by a bunch of racist loons to whom no attention should be paid. It’s clearly not an invasion of any kind. The people in boats are unarmed and do not represent a threat. To `repel’ them would be a violation of international law.

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