14 August 2020
English Channel Migrant Movement and Human Rights at Sea
Professor Steven Haines
People move. Migration has always been a feature of the human condition and it will always be so. We cannot stop it and efforts to stem it will, in the long run, prove futile.
Global population has ballooned in recent years and travel from region to region has increased. More and more people are on the move. Their motives for leaving their homes and seeking lives elsewhere are numerous, but two in particular are relevant to the ‘crisis’ that has developed in recent weeks in the English Channel.
The first is to do with people fleeing unstable and life-threatening conditions, including long-running violent conflicts, such as those in Syria, Yemen and Libya. North Africa and the Middle East are obvious starting points for those fleeing for their own lives and those of their loved ones. But the migrant flow also includes those who begin their travels much further afield in Asia and Africa.
The second is about people wishing to improve their lives in general, not necessarily fleeing in fear for their lives. They seek a move to a better life in an economically strong country. They want what we all want for ourselves and our families. They are ambitious and want the best deal they can get in a safe and secure environment in which they can thrive and prosper.
The former are frequently regarded as ‘refugees’ and garner some sympathy, though often not as much as they deserve. The latter are often dismissed as ‘economic migrants’; it can be difficult indeed to generate sympathy for them.
In reality, however, many are a combination of the two and it is difficult to distinguish between them. All are moving and a great many appear to see their destination of free choice as the United Kingdom (UK).
The English Channel ‘Crisis’
Having arrived on the northern French coast, they face the obstacle of a sea passage to reach the shores of England.
The English Channel and the Dover Straits is about the busiest waterway in the world. Just over twenty miles at its narrowest, any crossing from north to south will be fraught with danger. In a small boat it is especially so, even in broad daylight.
Having already travelled hundreds, if not thousands, of miles, they are not to be deterred. They are determined to reach the UK and are easily persuaded to pay unscrupulous criminal gangs’ significant amounts of personal money for the small boats, mostly inflatables, that they will use to attempt to reach the English coast.
The numbers attempting to reach the UK across the English Channel have increased significantly in recent weeks. Compared with the numbers of migrants arriving in other European countries, the numbers attempting to enter the UK are not significant. They are sufficient, though, to cause those opposed to immigration to apply political pressure on the British Government.
Those individuals make ludicrous claims about an illegal immigrant ‘invasion’ and demand the Armed Forces be deployed to defend the integrity of British territory.
There is no doubt that the situation is complex; there are no easy solutions that will satisfy all concerned; be they governments, electorates or the people taking grave risks to improve their lives.
The bottom line, however, must be the protection of lives and the rights of vulnerable people; men, women and children. That must be the principle driver, whether it be for the French authorities dealing with migrants in France, the British authorities dealing with migrants arriving in the UK, or those encountering vulnerable people in life-threatening situations at sea.
Human Rights at Sea
Human rights apply at sea, as they do on land.
In France, the French authorities have responsibility for protecting rights. In the UK it is the British authorities, while at sea every mariner has a responsibility under international law to go to the aid and rescue of those in distress.
This is a customary humanitarian duty that has existed for hundreds of years. It is reinforced by international treaties dealing with Safety of Life at Sea, the International Convention for the Safety of Life at Sea (SOLAS), 1974 and maritime Search and Rescue, the International Convention on Maritime Search and Rescue (SAR), 1979.
Both Britain and France are party to those treaties.
If the crew of a ship encounters people in distress or whose craft is unseaworthy, they have a duty to rescue those people and take them to a place of safety. Not to do so would be negligent and potentially, a crime against humanity.
This duty belongs to public officials serving in government vessels, including warships, to the same extent that it does to those in private or commercial ships.
A government order to its vessels not to rescue those in distress would be illegal. The commander of a government vessel in receipt of such an illegal order would be under a legal obligation not to comply. It is no defence in law to claim that one was merely obeying orders.
The British authorities have so far complied strictly with their international legal obligations to rescue people in distress at sea and take them to a place of safety. There is no reason to suppose that they will not continue to do so.
The British Government should ignore the demands of those who wish to use force to prevent migrants making the crossing from France to Britain.
Once they are at sea, those migrants are entitled to protection and a humanitarian response if they are in distress, regardless of the reasons why they are there and the circumstances that led them to attempt passage over the Channel.
There is a great deal of misleading information being spread about the situation as it stands.
The migrants leaving the French coast in small boats have a right to do so (we all have a legal right to leave a country if we so wish). They have a right to be present on the high seas; they are doing nothing illegal simply through their presence there.
When they enter British territorial waters, their status is that of individuals subject to immigration control. If they attempt to avoid this, they will be in breach of UK domestic law and will be subject to due legal process.
Once within UK jurisdiction, they will be able to request asylum (everyone has an internationally recognised legal right to do so). The UK authorities will then investigate their circumstances to establish whether or not they are entitled to refugee status. If they are and this is granted, they will obtain all the rights to which they are entitled as refugees under international and British domestic law. If not, they will be subject to removal from the UK and return to the country from whence they came.
The law is easily stated. The full situation is more difficult to summarise, however.
There are other legal issues to investigate, including the activities of criminal gangs operating in France and Belgium to ‘assist’ migrants on their way to the UK. Their activities will be subject to French and Belgian criminal law; they need to be pursued and prosecuted by the French and Belgian authorities.
There are then political and logistical issues to do with returning migrants who have arrived in Britain, who have failed to satisfy the demands of UK Immigration controls (including those related to asylum and refugee status), and who are subject to removal and return to the country from which they departed.
These issues demand the attention of governments and negotiations between them to establish practical arrangements to deter migrants setting out to cross the sea, to deal with them fairly wherever they are found, and to ensure that their humanitarian requirements and human rights are fully respected and met.
What the details of those arrangements might be is for governments to determine, but they must obviously comply with international law: with Human Rights Law, with the law relating to Safety of Life at Sea, maritime Search and Rescue, and with Refugee Law.
The Role of the British Armed Forces
There has been a good deal of speculation in the British press about the apparent request from the Home Secretary, Priti Patel, to the Ministry of Defence for assistance at sea dealing with migrants crossing the Channel.
There have also been demands from some quarters opposed to immigration for the Royal Navy to be used to protect the integrity of Britain’s borders.
Both have led to significant ill-informed speculation about the potential role of the Armed Forces and the possibility of them using force against migrants. Such speculation; including from politicians who should know better is inflammatory and profoundly misleading.
The British Armed Forces, unlike those in many other countries, have long had a legitimate role in providing assistance to civil ministries, with that assistance being legally restrained and fully subordinate to those civil ministries, which remain in control of any activities the Armed Forces engage in.
One long-standing and routine role has been in relation to maritime SAR, which has been provided by the Royal Navy and Royal Air Force as a routine function since at least the middle of the 20th century.
Both forces, for example, provide helicopters for maritime SAR and routinely and continuously work in close cooperation with the Maritime and Coastguard Agency (MCA), the civil authority for SAR, in ensuring the UK’s coastal waters are safe and adequately covered by vessels and aircraft to recover people in distress.
They will also be able to assist the Border Force which, it needs to be appreciated, has not only dealt with the Immigration Control requirement, but has also rescued numerous migrants from life-threatening situations.
Human Rights at Sea understands that this is the purpose for which the Royal Navy and Royal Air Force are being used. Such use is not inappropriate, it serves to identify and respond to situations in which those at sea are in distress or danger.
Apart from those wishing to use inflammatory rhetoric to score political points, either in favour of a military solution or opposed to any military engagement, there is no suggestion that military involvement will be for any purpose other than to ensure the safety of those in peril at sea and to aid their appropriate reception once within British jurisdiction.
Royal Navy warships frequently offer assistance to mariners and other sea-goers in distress, they are well-practiced at doing so and certainly do not pose a threat to migrants crossing the English Channel.
Royal Air Force aircraft will be used to identify craft that are crossing the Channel, providing information to both the MCA and the Border Force.
Human Rights at Sea will continue to monitor developments in the English Channel and will seek to provide informed comment on all aspects of the human rights of those attempting to cross from France and Belgium to the UK.
As an established UK-registered human rights organisation with an explicit mandate to cover such issues, we believe that for the moment fundamental Human Rights are generally being respected by authorities on both sides of the English Channel, and that humanitarian rights and duties are being respected and delivered.
We do, however, believe that it would be far better to have a formally established route and process for migrants administered by the relevant authorities, and which would end the involvement of criminal gangs providing migrants with unsafe craft at significant cost to them in terms of financial exploitation, physical safety and personal security issues.
Professor Steven Haines is Professor of Public International Law at The University of Greenwich and a Trustee to Human Rights at Sea.