Pirates, Boat People, and Bystanders: Contradictions at the Marine Bedrock of the International Human Rights Regime

Monday, May 20, 2019
by Matej Jungwirth

By Matej Jungwirth

 
Abstract

This paper explores the high seas as a critical space for the formulation and development of international human rights law in two inter-related areas: anti-piracy campaigns and rescue of the so-called “boat people.” While the high seas have been instrumental in promoting inter-state cooperation and coordination, I argue that they have also laid bare the limits of states’ nominal commitments to rights protection. Using historical case studies of the Vietnam crisis, Haiti arrivals to the United States, and the current marine policies of Australia, I show that states too often willfully neglect their human rights obligations. In doing so, these states might succeed in protecting their short-term interests, but undermine the foundations of international human rights regimes in the long run. 


“At night, when the sea cradles me
And the pale star gleam
Lies down on its broad waves,
Then I free myself wholly
From all activity and all the love
And stand silent and breathe purely,
Alone, alone cradled by the sea
That lies there, cold and silent, with a thousand lights.
Then I have to think of my friends
And my gaze sinks into their gazes
And I ask each one, silent, alone:
"Are you still mine"
Is my sorrow a sorrow to you, my death a death?
Do you feel from my love, my grief,
Just a breath, just an echo?"
And the sea peacefully gazes back, silent,
And smiles: no.
And no greeting and no answer comes from anywhere.”

(At Night on the High Seas, H. Hesse)

A docked boat.

Image courtesy of jtstewart under Creative Commons license CC BY-SA 2.0.

 

Introduction

The “high seas” are defined as all marine areas that lie at least 200 nautical miles from coasts of sovereign nations. As such, the high seas cover 64 percent of the global marine surface and 43 percent of Earth’s overall surface (The Pew Charitable Trust 2015). Given how central nautical exploration and activity in the high seas were to the development of European nations since antiquity, it is not surprising that negotiations over maritime issues have played an increasingly important role in interstate relations. Consequently, the international waters and interactions between states presented a unique opportunity for the development and codification of widely accepted rules governing the use of the world’s seas.

This is evident in a number of legal documents recorded at various stages of European history: from the early Roman drafts of maritime law for the management of seafaring in the Mediterranean, through the German Hanseatic League’s Laws of Wisbuy to Hugo Grotius’ famous formulation of the principle of the freedom of the sea (Sohn and Gustafson 2002). The United Nations Convention on the Law of the Sea of 1982 can thus be understood as a culmination of a continuous string of international efforts to establish a binding normative framework for the high seas.

In this interpretation, international waters are traditionally conceived of as remote and ungovernable areas. The increasingly pressing need of seafaring nations to reach an agreement on basic guidance for their vessels then laid the groundwork for the modern regimes of international law and, as will be shown, human rights. Yet, sovereign states were repeatedly able to conclude binding agreements on maritime rules and regulations. Still, the willingness and enthusiasm with which states followed up on their contractual commitments on the high seas have varied greatly from case to case.

Acknowledging the centrality of the high seas to the development of international law, this paper explores two foundational themes of international marine law: the suppression of piracy and the plight of boat people (understood as refugees embarked on a vessel). Both pirates and boat people defy a core requirement of international marine law – that every vessel operating on the sea clearly identifies its nationality by hoisting an appropriate national flag. As Sohn and Gustafson note: “A ship’s nationality is, therefore, a crucial element of the regime of the oceans” (Sohn and Gustafson 2002). This action makes it clear to bystanders – that is, nearby vessels – under whose jurisdiction and protection the vessel falls. Pirates who willfully refuse to fly a country flag and boat people who are unable to do so fall outside this regulated and rule-based space of international marine law. Nevertheless, the international community has responded to the challenges posed by pirates and boat people.

I argue that the desire to suppress and prosecute the crime of piracy fueled much of the early marine cooperation between sovereign European states. Consequently, the anti-piracy campaigns also gave birth to the twin concepts of universal jurisdiction and hostis humanis generis (i.e. an enemy of mankind) which were invoked at the Nuremberg trials and at the trial of Adolf Eichmann, one of the Nazi masterminds of the Holocaust.

I will then turn to the 1951 United Nations Convention Relating the Status of Refugees (“1951 Refugee Convention” to avoid confusion with previous treaties of a similar name), its 1967 amending protocol, and the United Nations Convention on the Law of the Sea (UNCLOS). The 1951 Refugee Convention represents the single most significant international instrument of refugee protection (including the boat people) and as such warrants closer attention. In particular, I will look at the historical context in which the 1951 Refugee Convention was formulated (especially visible in the so-called geographic restriction) and on the specific instruments of refugee protection that the 1951 Refugee Convention and the UNCLOS introduced, especially the non-refoulement clause. Understanding these mechanisms properly then allows us to adjudicate the various failures of Western nations to uphold and honor these very commitments towards disenfranchised boat people on the high seas in the second half of the 20th Century.

Boat people, unlike the traditional pirates and hostis humanis generis, have posed a far more complex and ambiguous challenge to states active in international waters. Under the 1951 Refugee Convention, UNCLOS, and earlier customary principles of international marine laws, ships of any nation have an unambiguous obligation to come to the help of others who are at distress regardless of which flag (or if any at all) their vessel flies.

Coming to the rescue of boat people, often fleeing repressive and life-threatening regimes with no opportunity for return, poses a choice for the marine witnesses: save a stranger or abandon her to near certain death. Yet, as Itamar Mann poignantly observes, the choice is surprisingly difficult for many governments; it is the dilemma “between treating people as humans and risking changing who ‘we’ are (in terms of the composition of our population) or giving up human rights and risking changing who ‘we’ are (in terms of our constitutive commitments)” (Mann 2017, 11).

Western nations, including the US, Great Britain, and Australia, have repeatedly chosen to abnegate their constitutive human rights commitments to boat people that their vessels encountered on the sea. Relying on specific examples from the Vietnamese boat people crisis of 1970, the U.S. Supreme Court’s 1993 ruling on the United States response to the boat arrivals of refugees from the chaos-stricken Haiti, and Australia’s Operation Sovereign Borders, I attempt to demonstrate first, the institutionalization of this abnegation of human rights obligations, and second, its disastrous consequences under international marine law.

The selfish and norm-defying behavior of states towards boat people undermines the credibility and reputation of those very states in the global context and erodes the rights regime they seek to uphold, at least nominally.

Finally, I will strive to adjudicate the glaring discrepancy between the universal willingness of seafaring nations to coordinate their campaigns against international piracy on the one hand, and the willful abolition of their concomitant commitments (further certified by their signatory role to the Refugee Convention and UNCLOS) to boat people on the other hand. I will argue that seafaring states are ultimately pragmatic in their approach to the obligations deriving from international marine law. They aggressively protect their own interest in international waters but equally forcefully defend themselves from potential obligations originating therein. While this behavior can sometimes be defended through a narrative of domestic policy pressure, it nonetheless undermines the cooperative regime governing the high seas and, if unchecked, threatens to erode it altogether eventually. Thus, the selfish and norm-defying behavior of states towards boat people undermines the credibility and reputation of those very states in the global context and erodes the rights regime they seek to uphold, at least nominally.  

 

Hostis Humanis Generis

The crime of piracy has been defined as an act of robbery on the high seas that occurs without state sanction.1 Unchecked piracy in international waters has represented a serious hindrance to the ability of seafaring states to explore unknown shores and to maintain vital shipping trade links. The Roman philosopher Cicero has been credited with coining the term Hostis Humanis Generis to encapsulate the nature of pirates’ crimes (Gould 2010, 87). In the 18th century, a renowned English politician and judge named William Blackstone formulated guidelines for the transnational prosecution of those who commit piracy on the high seas:

“[The pirate] has renounced all the benefits of society and government, and has reduced himself … to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community hath a right … to inflict that punishment on him, which every individual would in a state of nature have been otherwise entitled to do” (Gould 2010, 84).

Though first offered in the context of the English legal system, this understanding of piracy and its suppression provided a natural bedrock for the notion of universal jurisdiction. Recognizing certain crimes as crimes against the whole of humanity (regardless of whether they took place on high seas or sovereign lands), the principle of universal jurisdiction posits that perpetrators of these crimes are subject to prosecution by any state who might capture them (International Justice Resource Center 2017).

The Israeli trial of Adolf Eichmann, seen by many as a direct response to the lack of attention that the Holocaust received as a crime of genocide against Jews specifically at Nuremberg,2 offers an example of the direct application of the originally marine concept of Hostis Humanis Generis.

Gideon Hausner, the chief Israeli prosecutor, relied extensively on the twin notions of universal jurisdiction and Hostis Humanis Generis in his indictment of Eichmann. Hausner did so to justify both the kidnapping of Eichmann and his prosecution under Israeli domestic law. In the defense of the validity of the court’s proceedings, Chief Justice Hausner rephrased Jackson’s words on piracy:

“Pirate can be tried by any country into whose hands he falls [...] The perpetrator of a crime against humanity is considered to be on a similar level. His offense is not aimed at a particular part of the society; it is a crime against the human race. It is, therefore, within the power of any civilized state to try him” (Hausner 1966, 314).

In other words, Justice Hausner and others were convinced that the very nature of Eichmann’s crimes defined him as a quintessential “pirate,” in the sense that he was an enemy of mankind who could be tried by any state under the crimes against humanity charge that was first deployed at Nuremberg. Eichmann was found guilty of “crimes against Jewish people” and, after both his appeal and plea for clemency were denied, he was hanged on May 31, 1962 (Arendt 1983, 281).

"The Appeal of Nazi War Criminal Adolf Eichmann" by Government Press Office (GPO).

"The Appeal of Nazi War Criminal Adolf Eichmann" "The Appeal of Nazi War Criminal Adolf Eichmann." Image courtesy of Government Press Office (GPO) under Creative Commons license CC BY-NC-SA 2.0.

Justice Hausner’s designation of Eichmann as Hostis Humanis Generis relied on the precedent of piracy crimes and suppression thereof was widely accepted. To this day, many countries proactively and eagerly join ranks to coordinate their campaigns against actual piracy. Both NATO and the EU have been running large and expensive naval operations (Operation Ocean Shield and Operation Atalanta, respectively) in the Horn of Africa region to reduce the threat of piracy to the freedom of navigation through the adjacent waters that are central to global marine supply routes.

 

The 1951 Refugee Convention (and the 1967 Protocol)

As Guy S. Goodwin-Will observes in his comments on the UN Convention relating to the Status of the Refugees, this treaty is: “the central feature in today’s international regime of refugee protection [and] by far the most widely ratified refugee treaty” (Goodwin-Gill 2018). The formulation and adoption of the Refugee Convention reflected the urgent need for a permanent legal framework for the protection of European refugees displaced by World War II. It was not until the 1967 Protocol that this so-called “geographical restriction” was lifted and non-Europeans were explicitly granted protection under the statute of the original Refugee Convention.

As of April 2015, 145 states have become parties to the 1951 Refugee Convention and 146 states were parties to the 1967 Protocol, according to the UNHCR, the UN’s chief body for refugee policies that was established by the 1951 Refugee Convention as well (UNHCR 2015). The 1951 Refugee Convention itself provided a lasting (if only somewhat convoluted and legalistic) definition of a refugee meriting protection under the treaty as someone who:

“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it” (UNHCR 2010, emphasis added).

As Goodwin-Gill notes, contrary to the popular interpretation of this provision, it is not necessary for a refugee to have fled on these grounds, rather: “The fear of persecution looks to the future and can also emerge during an individual’s absence from their home country, for example, as a result of intervening political change” (Goodwin-Gill 2018). This is a crucial distinction for it posits that it is, in fact, not necessary for refugees to be driven out of their homeland by the “well-founded fear of prosecution,” but rather that this condition prevents their return to the home country after they have left.

 

The Principle of Non-Refoulement

The principle of non-refoulement, derived from the French word “defouler”, which means “to drive back or to repel,” is a critical component of the Refugee Convention for the analysis of the behavior of sovereign states towards the boat people on high seas (Goodwin-Gill 2018). The 1951 Refugee Convention defines non-refoulement in Article 33, Paragraph 1: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (UNHCR 2010).

Paragraph 2 of Article 33 then lists the only instance in which the non-refoulement may be breached: when the refugee at hand can reasonably be expected to present “a danger to the community of [the country where they seek asylum]” (UNHCR 2010). In other words, if a refugee presents a grave threat to the society tasked with accepting him, the receiving state may neglect its obligation under the non-refoulement principle and send the refugee back to his country of origin regardless of what end he might meet there. This provision was likely a result of the many compromises forged during the drafting of the 1951 Refugee Convention – developed European states did not want to be left with no means of turning refugees down as an otherwise strict adherence to the non-refoulement principle would require.

While the non-refoulement principle was directly transferred from the wording of the 1933 Refugee Convention, the 1951 Refugee Convention did not adopt a crucial principle of its 1933 predecessor: prohibition on preventing refugees’ entry to the country in the first place. “Each of the Contracting Parties undertakes not to remove or keep from its territory by application of police measures, such as expulsions or non-admittance at the frontier (refoulement)” (Refworld 1933). The omission of this provision from the wording of the 1951 Refugee Convention, will prove relevant to our subsequent debate of encounters in the high seas and the practice of the marine “pushbacks.”

Pertinent to our discussion of refugee encounters on the high seas is Article 32 of the 1951 Refugee Convention, which outlines the grounds under which states can expel a refugee who is “lawfully in their territory” (UNHCR 2010). The refugee shall be granted the benefit of “due process of law,” including the right of appeal and legal representation at the court of the state where he seeks to file his asylum claim (UNHCR 2010).

While the 1951 Refugee Convention is unambiguous about rights and protections to which refugees who are found to be “lawfully” in the territory of the receiving state are entitled, it leaves questions unanswered about encounters on the high seas. The vacuum that this territorial restriction represents and the resulting question of the extraterrestrial validity of the non-refoulement principle require that we understand the basic provisions of the United Nations Convention on the Law of the Seas (UNCLOS) first.

 

UNCLOS

The primary reasons behind drafting and adopting the UNCLOS were not humanitarian. As global seas became increasingly important in the strategic mindset of the Cold War (many types of conventional ballistic missiles could have been launched from naval ships), so did the need to subject the marine space to a multilaterally agreed-upon framework of governance. The UNCLOS was adopted in 1982 and came into effect in 1994; it currently has 168 signatory states (UN 2018) with the United States being one of the few non-signatories (Patrick 2012).

Article 98, informed by centuries of customary marine law, then prescribes the obligation of a flag-hoisting vessel “to render assistance to any person found at sea in danger of being lost” and “to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may be reasonably expected of him” (UN 1982). As O’Brien notes, this wording makes it clear that the duty to render assistance rests not on the individual mariner, but on the flag state of the rescuing ship whose obligation is “to ensure that an adequate transpositional law is enacted, which imposes the obligation on the master of the ship; it is not a self-executing norm” (O’Brien 2011, 721).

This leads to a discussion of the “extraterritorial applicability” of non-refoulement. After careful deliberation, O’Brien concludes that the requirements of non-refoulement apply in the high seas for three major reasons. First, the 1951 Refugee Convention at large “does not contain any clause limiting the application of the Convention to a particular territory” (O’Brien 2011, 728). Several previous rulings of international courts have used the metrics of “effective control” to determine the assignment of national jurisdiction and, as O’Brien notes, it is hard to imagine a more effective control than being rescued at high seas. Second, Article 33 of the 1951 Refugee Convention explicitly provides that a refugee shall not be returned “in any manner whatsoever.” Third, from a teleological perspective, the goal of the 1951 Refugee Convention, stated in its Preamble, is to “ensure the broadest possible protection of refugees worldwide.” A selective and territorially limiting interpretation thereof would surely “frustrate this aim” (O’Brien 2011, 729).

 

Historical Cases of Encounters at the High Seas

In this section, I will cover three major historical examples of marine encounters with boat people attempting to make their refugee status claims on the high seas. In particular, I will focus on tracing the various ways in which states and their flag-bearing vessels managed to skirt their legal obligations under the 1951 Refugee Convention and the UNCLOS toward the boat people, often actively through coordination with other states.

The Boat-People Crisis

The term “boat people” earned its worldwide recognition after the Fall of Saigon in April, 1975. The collapse of America’s ally in the war against North Vietnamese Communists sent thousands of Vietnamese fleeing, most often on boats. The United States recognized that it had moral obligations towards its (former) allies in South Vietnam and actively participated in the 1979 Orderly Departure Program through which some 823,000 Vietnamese were formally resettled to the United States (Mann 2017, 60). However, as the gap of four years between the Fall of Saigon and the adoption and implementation of the Orderly Departure Program demonstrates, thousands of refugees found themselves stranded in refugee camps in states neighboring Vietnam.

Although the operation of these camps was financed by international organizations and foreign governments, the living conditions deteriorated with increasing overcrowding of the camps. In an abnegation of the non-refoulement principle, “navies and coastguards [of the refugee-hosting states] started pushing refugee boats out of territorial waters and back to sea” (Mann 2017, 59).

It is important to acknowledge a common sentiment at the time: that refugee acceptance was an act of generosity, not a legal obligation. This was encapsulated by Edmond L. Papantonio, who wrote in 1979: “To speak of asylum in purely legal terms is to miss its essence, for it is a moral right that cannot be effectively enforced – the refugee is dependent upon the generosity of the state where he seeks refuge” (Mann 2017, 72, emphasis added).  

The Australian government, disquieted by the possibility of boat people reaching its territorial waters and submitting their refugee claims therein, is a prime example of this view of refugees and their claims. Australia led an initiative with 24 other countries, including France, the United States, and Canada, to establish an offshore detention center on the Indonesian island of Galang, where Australian authorities could intern the boat refugees and process their claims far from the Australian mainland. This remarkable feat of international cooperation allowed Australia to avoid its duties towards the boat people on the high seas, prevent their physical entry into Australia’s territory and, as Mann notes, set forth an “important precedent in later efforts to extra-territorialize refugee processing” (Mann 2017, 74).

Thus, the Vietnamese boat people crisis not only brought the plight of refugees in the high seas to the world’s attention, but showed the limits of the willingness of seafaring states to honor their legal obligations towards the boat people. In fact, Australia proactively coordinated with other states to skirt its obligations in the high seas, setting forth a tradition in Australian migration policy.  

U.S. Arrivals from Haiti

The waning days of the Duvalier dictatorship in Haiti in the late 1970s had a destabilizing effect on this already fragile island state. As a result, tens of thousands of Haitians fled their homeland on boats in an attempt to reach the United States and file their asylum claims there. In disregard of its obligations under the 1951 Refugee Convention, President Reagan issued Executive Order 12,324, titled “Interdiction of Illegal Aliens,” in September 1981 (Executive Order 12324, 1981).

The Order granted U.S. Coast Guard vessels expansive powers to “stop and board vessels, when there is reason to believe that such vessels are engaged in the irregular transportation of persons” and “to return the vessel and its passengers to the country from which it came.” Both these actions were authorized in the high seas as well (Executive Order 12324, 1981). The Order also paid lip service to the non-refoulement principle, adding a provision that “no person who is a refugee will be returned without his consent” (Executive Order 12324, 1981).

As Mann notes, this Order was accompanied by a bilateral US-Haiti treaty that permitted U.S. vessels to patrol Haiti’s coastal waters and carry out interceptions (Mann 2017, 114). This agreement also provided for the asylum seeker’s consent before their return to Haiti. However, the claim-processing mechanisms were spurious – they took place aboard U.S. Coast Guard cutters with representatives of the State Department and the Immigration and Naturalization Services. While this seems like a solid guarantee of due process, the numbers suggest otherwise – out of some 25,000 Haitian asylum-seekers processed this way, only 28 were found to present a bona fide asylum claim. Those Haitians whose claims were turned down, but who could not be returned to Haiti (due to capacity reasons), were interned in a facility in Guantanámo Bay (Mann 2017, 115).

As Mann observes, even this was lenient for the standards of the George H.W. Bush administration: “In 1992, with Executive Order 12807, Bush authorized the Coast Guard to return all fleeing Haitians with no process at all” (Mann 2017, 115). The language and policies of these two Executive Orders were challenged by the Haitian Refugee Council, an American NGO that lobbied for the rights of Haitian refugees in the U.S. courts (Mann 2017, 116). The case was eventually heard by the U.S. Supreme Court in June 1993.

The U.S. Supreme Court struck down the challenge on behalf of the Haitian refugees in an eight to one decision, with Justice Blackmun being the sole dissenter. The majority opinion, written by Justice Stevens, asserted, that the “duty of non-refoulement did not extend to the high seas” (Mann 2017, 117). Justice Stevens reasoned: “Because the text of Article 33 [of the 1951 Refugee Convention] cannot reasonably be read to say anything at all about a nation’s action toward aliens outside its own territory, it does not prohibit such actions [e.g. interception of boats and pushbacks in high seas]” (Mann 2017, 115, emphasis added).

Justice Blackmun challenged this narrow and territorially exclusive interpretation of the United States’ human rights obligations. In his dissent, he stressed both “substance and process” of the case at hand and, apart from the non-refoulement principle, defended the Haitians’ “right to be heard” (Mann 2017, 117). However, therein lies the crux – the right to be heard is utterly powerless when no one is listening. The result is a denial of right that is informed not by active deliberation and judgment over the case at hand, but by active choice not to hear the case in the first place, and by physically removing the claimant as far as possible from the civilized territorial jurisdiction of the nation state.  

Australia’s Operation Sovereign Borders

Australia’s ongoing Operation Sovereign Borders (OSB), which launched in September 2013, is a military-led operation “aimed at combating maritime people smuggling and protecting Australia’s borders” (Australian Government, Department of Home Affairs 2018). The OSB website conveys the Australian government’s policies: “Settlement in Australia will never be an option for anyone who travels illegally by boat … There are no exceptions.” In addition, “even if [asylum seekers traveling on boats] are accepted as refugees, they will not be resettled in Australia” (Australian Government, Department of Home Affairs 2018).

The top of the OSB website presents a highlighted text box that reads: “In December 2017, Australian authorities intercepted a Sri Lankan people smuggling boat attempting to reach Australia illegally. All 29 people aboard were returned to Sri Lanka” (Australian Government, Department of Home Affairs 2018). The text makes no mention of whether the Sri Lankan boat people were even allowed to present their asylum claims, nor does it assure us that the non-refoulement principle was observed in this specific case.

Australia has not been shy in resorting to boat push-backs ever since OSB came into effect. As of October 2017, the Australian government has pushed back 31 vessels carrying 771 asylum seekers out of high seas or its own waters to the country of origin (Doherty 2017). The OSB and the resulting push-back practices have been subject to intense international criticism, including a specific case in 2015 when the Australian Government bribed a ship’s captain $30,000 in cash to turn his boat around back to Indonesia. In 2014, a ship carrying 157 Sri Lankans was intercepted by the Australian Coast Guard and its passengers were taken to Nauru island, which falls under Papua-New Guinea’s jurisdiction and where Australia has an extraterritorial detention center. The abysmal living conditions and the legal uncertainty that detainees face has been the repeated subject of harsh critiques by Human Rights Watch and other international NGOs (Human Rights Watch 2017).

Furthermore, similar to the U.S. Coast Guard’s approach to the Haitian boat asylum seekers, Australian immigration authorities carry out “on-water assessments” to adjudicate the merits of an individual’s asylum claim. This process has been criticized by many for its “perfunctory questioning, often involving interpreters on unreliable phone lines and without legal representation, is unfair and risks sending people home to danger” (Doherty 2017).

As the Kaldor Centre for International Refugee Law at University of Sydney notes, some of the boat people pushed back by Australian vessels are at heightened risk of torture and imprisonment in their country of origin, especially in Indonesia and Vietnam (Kaldor Centre 2015). Australian authorities often actively cooperate with countries of origin in their pushback efforts.

Australia’s behavior towards asylum seekers fulfills Justice Blackmun’s warning against policies that prevent the claimant from making their human rights claim in the first place. The securitization of the issue of border protection and relentless campaign to present boat arrivals as illegal permit Australia to carry out a policy that removes the possibility of human encounter and subsequent human rights claims.

 

Concluding remarks

In theoretical terms, the contradictory behavior of developed Western seafaring nations in the ungoverned and truly anarchic space of the high seas could be cast as a challenge to the framework of neoliberal institutional theory as formulated by Robert Keohane and others. These scholars posit that the establishment of a mutually agreed upon regime to facilitate cooperation (in the ungoverned space of the high seas in our example) is nearly impossible.

However, my analysis of the evolution of anti-piracy laws into the universally accepted formulation of Hostis Humanis Generis and associated crimes against humanity shows that such a regime was, in fact, put in place on the high seas. Thus, sovereign states have succeeded in cooperating in their anti-piracy campaigns to protect their security and economic interests. Nonetheless, this willingness to follow an international normative framework often disappears when boat people appear to make pure “human rights” claims on the high seas, as illustrated by Itamar Mann and the three cases above (Mann 2017).

It is tempting to blame the failure to accommodate claims made by boat people on the failure of cooperation among the sovereign seafaring nations or on the lack of enforcement mechanisms. However, many historical cases of the abnegation of normative obligations toward boat people have shown that these are often enabled by a high degree of coordination among sovereign states. Examples listed in this essay include the United States striking and agreement in early 1990 with Haiti to forcefully push back Haitian refugees headed toward the U.S. mainland or Australia actively coordinating its pushback campaigns with countries of origin in the present day.

The fact that sovereign states willfully collude to protect their core national interest against the potential human rights claims made by the boat people severely undermines the belief in the inherent normative strength of multilateral commitments to refugee rights protection.

It would be far more comforting to attribute the states’ failures toward the boat people on high seas to the lack of enforcement mechanisms and traditional difficulty and costs of intra-state coordination. The fact that sovereign states willfully collude to protect their core national interest against the potential human rights claims made by the boat people severely undermines the belief in the inherent normative strength of multilateral commitments to refugee rights protection. 

Additionally, the boat people cases presented in this essay reinforce Hannah Arendt’s brilliant discussion of “rights to rights.” The boat people from Haiti or Vietnam were quite literally at the mercy of the vessels of sovereign states that found them. In contrast to the UNHCR and other normative international treaties that view right to rescue and protection from harm as inherent to any human existence, the boat people experience shows that these rights are, in fact, dependent upon the charity of rescuing nation or, critically, lack thereof.

This sets off a dangerous race to the bottom as states trust in one another unravels. This is a race where the boat people, who desperately need the support and protection of the international human rights regime, stand to lose the most.

What of the consequences for pushbacking states then? On the one hand, they are achieving domestic political goals and popularity from a substantial part of their electorate by keeping asylum seekers away from their shores. On the other hand, refusal to uphold normative commitments that many of these very states forged over half a century ago erodes the international credibility of boat people-rejecting governments. This manifests itself in two major ways - lack of trust and disincentive to act. States that preach water and drink wines simply won’t be as trusted by others to follow-up on their stated commitments. Additionally, when exhorted to “do more for the refugees,” developing states might point to the U.S. response to the Haiti crisis or Australia’s Operation Sovereign Borders and refuse to act themselves. This sets off a dangerous race to the bottom as states trust in one another unravels. This is a race where the boat people, who desperately need the support and protection of the international human rights regime, stand to lose the most.  

I am forced to conclude with Hermann Hesse’s somber words with which I opened this essay: In response to those stranded on rickety vessels on the high seas, “no greeting and no answer comes from anywhere.”


About the Author

Matej Jungwirth graduated from the Woodrow Wilson School's MPA program in June 2019. This paper was originally written as a submission for Gary Bass's excellent course Human Rights - a course that every MPA student should consider. He can be reached at matej.jungwirth@gmail.com.


Notes

1 As Gould dryly notes: “Apparently there is robbery, and then there is robbery” (Gould 2010, 87).    

2 Otto Adolf Eichmann made a career in the SS where he eventually earned a reputation as an expert on Jewish affairs . In 1938, he was promoted to the head of the Central Office for Jewish Emigration that carried out the complex logistics of mass deportations of Jews to ghettos and death camps. After the war, he fled to Argentina under an assumed name.    


References

Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin, 1983. Print

Australian Government, Department of Home Affairs. “Operation Sovereign Borders.” http://osb.homeaffairs.gov.au/ (May 15, 2018).

Doherty, Ben. 2017. “Australia’s Asylum Boat Turnbacks Are Illegal and Risk Lives, UN Told.” The Guardian. https://www.theguardian.com/australia-news/2017/oct/30/australias-asylum....

“Executive Order 12324—Interdiction of Illegal Aliens.” 1981. The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=44317 (May 15, 2018).

Goodwin-Gill, Guy S. “Introductory Note on the Refugee Convention.” UN Audiovisual Library of International Law. http://legal.un.org/avl/ha/prsr/prsr.html (May 14, 2018).

Gould, Harry D. The Legacy of Punishment in International Law. Palgrave Macmillan, 2010.

Hausner, Gideon. Justice in Jerusalem. New York: Harper & Row, 1966. Print. p. 314. Emphasis added.

“High Stakes on the High Seas.” Protecting Biodiversity in Waters beyond National Jurisdiction, The Pew Charitable Trust, 1 May 2015, www.pewtrusts.org/en/multimedia/data-visualizations/2015/high-stakes-on-....

Human Rights Watch. 2017. “Australia/PNG: Refugees Face Unchecked Violence | Human Rights Watch.” https://www.hrw.org/news/2017/10/25/australia/png-refugees-face-unchecke... (May 15, 2018).

Kaldor Centre. 2015. “‘Turning Back Boats’ | Factsheet.” Kaldor Centre for International Refugee Law. http://www.kaldorcentre.unsw.edu.au/publication/turning-back-boats (May 15, 2018).

Mann, Itamar. Humanity at Sea: Maritime Migration and the Foundations of International Law. Cambridge University Press, 2017.

O’Brien, Killian S. 2011. “Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem.” Goettingen Journal of International Law 3: 715–32. http://heinonline.org/HOL/Page?handle=hein.journals/gojil3&div=34&g_sent... (May 14, 2018).

Patrick, Stewart M. 2012. “(Almost) Everyone Agrees: The U.S. Should Ratify the Law of the Sea Treaty.” The Atlantic. https://www.theatlantic.com/international/archive/2012/06/-almost-everyo....

Sanborn, Frederic Rockwell. Origins of the Early English Maritime and Commercial Law, 1930.

Sohn, Louis B., and Kristen Gustafson. The Law of the Sea in a Nutshell. West Group, 2002.

Universal Jurisdiction.” International Justice Resource Center, accessed on 4 Feb. 2017, www.ijrcenter.org/cases-before-national-courts/domestic-exercise-of-univ....

UNHCR. 2015. “State Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol.” http://www.unhcr.org/afr/3b73b0d63.pdf.

UN. 2018. “Chronological Lists of Ratifications of UNCLOS.” http://www.un.org/depts/los/reference_files/chronological_lists_of_ratif... (May 14, 2018).

UNHCR. “Convention and Protocol Relating to the Status of Refugees.” http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf.

UN. “United Nations Convention on the Law of the Sea.” http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm.