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Part IV Access to Protection and International Responsibility-Sharing, Ch.26 Protection at Sea and the Denial of Asylum

Violeta Moreno-Lax

From: The Oxford Handbook of International Refugee Law

Edited By: Cathryn Costello, Michelle Foster, Jane McAdam

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 11 December 2023

Asylum — Non-refoulement — Law of the sea — Extraterritorial application of treaties

This chapter grapples with the vexed issue of protection at sea, unpacking destination States’ practices of interdiction and their justification on purported humanitarian grounds. After introducing the rules governing interdiction powers and the obligation to render assistance to persons in distress, it problematizes the instrumentalization of maritime rescue, based on the supposed benevolent effect of ‘stopping the boats’ as a means to ‘save lives’. Two competing yet complementary dynamics are detected and critiqued. First, while destination States inflate their policing competence through reliance on rescue rhetoric and intervene beyond prerogatives explicitly recognized in the law of the sea, they tend to maintain minimalistic constructions of the associated concepts of ‘distress’ or ‘place of safety’ to reduce the scope of their legal responsibilities. Thus, secondly, they deflate their rescue duties and detach them from related international protection obligations, either by deflecting them to third countries or by negating them altogether. Drawing on examples from the US Caribbean interdiction programme, the Australian ‘Pacific Strategy’, and the mare clausum approach favoured in the Mediterranean, the chapter traces the shift from direct to indirect forms of interdiction, increasingly performed by third countries or private actors, culminating in practices of interdiction by omission, which not only tolerate but purposively embed the risk of death as part of the migration control toolbox of destination States. The final effect is one that paradoxically transforms rescue into an interdiction tool that denies access to asylum to ‘boat migrants’.

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