The magnitude of the migrant crisis faced by Europe appears to be unprecedented. With a flow of people coming into Spain from North West Africa, Italy from Libya and Tunisia, and particularly, into Greece from Turkey, it is undoubtedly at crisis point. Every week, news reports surface of yet another boat capsizing, leaving hundreds dead. The dangers faced by nationals living in Afghanistan, Somalia, Eritrea, and Syria, mean that the journey on a dinghy is somehow safer than waiting for conflict to threaten their very survival. There are no clear solutions in sight, with hundreds of thousands still choosing this perilous journey. However, it may serve nations well to draw on lessons from a migrant crisis that occurred previously in the South China Sea during the late 1970s.
This migrant crisis was a result of changing political regimes in the Indo China region, modern day Laos, Cambodia and Vietnam, resulting in threats of genocide and persecution. A mass outflow of over three million refugees took to the open seas, seeking asylum in the South China Sea in other States such as Malaysia, Thailand and Indonesia. These ‘boat people’ faced the same risks and consequences as many now do crossing the Mediterranean in an effort to reach Europe, including facing the treacherous conditions of the sea and the risk of not receiving refugee status upon arrival.
First, it is clear that States have not acted in any more progressive a manner so as to ensure the safety of the refugees prior to departure. This failure is the reason why smugglers have began making a business of facilitating boats, and now more often dinghies, for the dangerous crossing of seas. Refugees are being charged thousands of euros for this journey while being made to commandeer the boat themselves without any guidance or training. They are often only given a phone with contact details of the coastguard for rescue when they reach subsequent territorial waters of the arrival State. These boats are often overcrowded, not sea worthy and are likely to sink.
States have done little to nothing to ensure safe passage of these refugees. They fail to target the exploitative tactics of the smugglers, and are letting thousands die through this omission. Unsafe passage occurred both in the South China Sea and now in the Mediterranean. However, instead of learning from the consequences, the situation in the Mediterranean has worsened. Furthermore, it continues to be ignored by European States.
Human Rights Watch has criticised the actions of some States in driving the smugglers underground, incorrectly returning refugees, and not concentrating their efforts on rescue at sea. One such example is the friendship agreement secured between Italy and Libya, two major points of passage, and debated on in the case of Hirsi v Italy in 2012. Italy would provide money, rescue boats and training to Libyan officials to return refugees to Libya, even if they are now in Italian waters. Similar tactics were previously used during the Indo-China Crisis, particularly by Australia, as seen in the Tampa case. In that case, a ship bound for Christmas Island, an Australian territory, was forcibly commandeered and turned away, even though it placed the refugees on board in the dangerous situation of the open waters again. Fortunately, in that case, a Norwegian vessel rescued the refugees. However, passengers in similar occasions have not been so lucky.
In both situations, the international principle of non-refoulement, the prohibition of returning the refugee to a place of persecution and danger, was not respected. It is clear that States are acting selfishly, breaching their own general international obligations and failing to improve on many criticisms that arose in South-East Asia during this deeply alarming crisis.
Additionally, within a year of the crisis in the Indo-China region, the Orderly Departure Program was enacted, allowing for applications for refugee claims to be processed prior to departure, ensuring a safer passage and disembarkation. In the case of the Mediterranean crisis, this is not the case. Balkan States have closed their borders; Turkey has permission by the EU to turn down refugees, forcing them back into Syria and Iraq as a result. Additionally, asylum seekers are not being evaluated by biometric measures as obligated. Refugees continue to suffer, despite a framework that should work because of the lack of State co-operation.
During the Indo-China Crisis, the duty to rescue those in distress at sea was largely complied with, particularly with disembarkation schemes such as Rescue at Sea Resettlement Offers (RASRO) and Disembarkation Resettlement Offers (DISERO). However, these schemes were specifically for the Indo-China Crisis, and have not been applied in the Mediterranean. Even with the UN Convention on the Law of the Sea, there is very little evidence of practical disembarkation procedures being implemented for the Mediterranean, meaning that much of the suffering that occured in the South China Sea has not be learnt from.
One can hope that in the near future, provisions will come about for the protection of these refugees. It is estimated that more than 5,000 people have died this year in crossing the Mediterranean, with numbers continuing to grow. With estimates of the UNHCR putting the figure of those that died in the Indo-China Crisis being between 200,000 and 400,000, the Mediterranean Crisis is a long way of being this severe.
But unfortunately, this may be another case of saying ‘never again’, if States are unwilling to comply with their international obligations. There has been an attempt to justify state inaction, with statements such as; “we do not have room”, “refugees are a threat to national security”, or “we are already swamped with refugees.” However, these are obligations that cannot be negated, even if it goes against the political machinery of each State. Politics is separate from the Law. Europe cannot seem to process this, and as a result, thousands have and will continue to die.