The Legality of Intercepting Boat People Under Search and Rescue and Border Control Operations with Reference to Recent Italian Interventions in the Mediterranean Sea and the Ecthr Decision in the Hirsi Case
Journal of International Maritime Law, Vol. 18, No. 1, 2012, pp. 59-74
16 Pages Posted: 30 Jun 2012 Last revised: 12 Aug 2012
Date Written: April 30, 2012
This article briefly addresses the legal grounds for the interception of boat people on the high seas by military vessels, taking into account the Italian Navy's experience on the matter. If interceptions are conducted within the framework of an 'extraterritorial' border control operation, their legality is hardly sustainable. Conversely, when interventions are implemented as search and rescue (SAR) operations, their legal basis is much wider, provided that intervening states' obligations under the SAR legal regime are coupled with those stemming from the prohibition of refoulement under international refugee law. As a result, rescued migrants can only be disembarked to 'safe third countries', namely countries in which they do not run the real risk of being persecuted or returned to other countries 'at risk'. According to some very recent international and national jurisprudence, including the European Court of Human Rights' decision in the Hirsi, before disembarking migrants, intervening states should in principle carry out a positive assessment on the functionality of the recipient country's asylum system. In order to assess clearly the legality per se of interceptions, this article supports the necessity of applying a prevalence criterion, according to which if the SAR character prevails over the objective of preventing irregular migration, the intervention in question should be considered an authentic and lawful salvage operation.
Keywords: Boat People, Hirsi, Human Rights, Interceptions, Migrants, Italy, Push-Backs, Refugees
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