A central question is: would be it be morally/legally right to return Libyan migrants rescued off the coast of Libya, yet the country remains potentially unsafe?
The situation of the movement of certain migrants to and within Europe since 2015 has been described as a ‘crisis’. The ‘crisis’ designation has been used because of the numbers involved—commonly depicted as the largest movement of people in Europe since the World War II. The question has been how the role of European states in assisting such people should be determined in a fair and equitable manner, in the face of sharp inequities in how things played out in practice.
The protection of migrants is well envisaged in the International Convention on the Protection of the All Migrants Workers and Members of their families, which entered into force in July 2003. Its primary objective is to protect migrant workers and their families, a particularly vulnerable population, from exploitation and the violation of their human rights.
Arguably, migrants can be treated like asylum-seekers in case conditions that triggered to flee are pretty much similar to well-founded reasons for persecution. Under refugee law, non-refoulement principle means refugees shall not be returned to their home countries or to places where they would be at risk of being returned home. The field of international migration law is well established in human rights laws. However, this legal framework encourages migrants to take risky journeys to reach the borders of destination countries. International human rights law then requires these migrants to distill their complex reasons for moving into a claim of non-refoulement in order to obtain permission to remain.
That said, the extension of the non-refoulement obligation to the extraterritorial context, when allied to the policy of engaging in rescues at sea, potentially attenuates the risk people face, and the efforts smugglers have to make.
International human rights law draws migrants with the possibility of lawful status for thowand establish refugee status while at the same time diverting attention from laws that provide inadequate options for migration and stringent border controls that render safe transit an impossibility.
Indeed, the principle of non-refoulement, as laid down in the 1951 Convention relating to the Status of Refugees, is the cornerstone of their international legal protection. It prohibits the return of refugees to a risk of persecution. Likewise, Article 3 of the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment establishes the principle of non-refoulement. It forbids states parties from expelling, returning or extraditing a person to a state "where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Refugees often flee repressive regimes to escape persecution. Sending people back to a country where they’re highly likely to suffer torture violates the CAT.
The principle of non-refoulement is likewise recognised as a central piece of the European Union’s fundamental rights regime, as reflected in Article 78(1) of the Treaty on the functioning of the EU. Therefore, EU member states ought to reconsider their international obligations as contained in relevant instruments.
In order to adequately address contemporary migration flows, international migration law is in need of substantial reform. This approach must involve not only human rights law but also other other areas of international law relevant to migration such as trade law, law of the sea, and transnational criminal law.
An effort to unify migration law might begin with a temporary regime, meaning a binding treaty with a sunset provision that could shape expectations around and build norms underlying a permanent treaty regime. As a minimum, such a regime should be able to anticipate migration flows and coordinate responses. It must provide migrants with safe passage to destination countries. Both host states and migrants have an interest in creating a functional international legal regime that anticipates and regulates migration flows, preventing exploitation of migrants and putting an end to migration emergencies.
As a matter of principle, non-refoulement plays a mitigating role in times of crisis. Specifically, the principle presents a mitigating role in responding to the dangerous sea crossings by asylum seekers. It indeed illustrates that in the area of disaster risk reduction, states have turned to specific human rights that map on and mitigate particular risks in disaster.
Bearing these observations in mind, and as a human rights advocate, I would opine the ratification of International Migration Convention and other legal instruments concerning migrants by all States.
The writer is a law expert.