Yesterday Reform announced ‘Operation Fortress’, their latest plan to ’stop the boats’ which will apparently entail the Royal Navy (RN) being deployed to track and detain migrant people in the Channel and to take them, in RN vessels, to France or Belgium where they will be disembarked. On the Today Programme yesterday, Zia Yusuf of Reform appeared to be suggesting this would be done as part of the UK’s legal obligations to protect life under the European Convention on Human Rights (ECHR) and that any attempt to block it would amount to a breach of international human rights law.
The irony of Yusuf praying in aid the ECHR in support of these proposals and decrying those who would oppose the plans (namely the French) as potentially committing a ‘crime against humanity‘ did not go unnoticed, given the party’s firm position (along with the Conservative Party) that it will leave the ECHR if it forms the next government. Nonetheless, if this is a sign that Reform is embracing a new-found respect for international law, there are plenty of lawyers who would be happy to advise on the legal implications of many of his party’s policies, not least this one. It would also be interesting to see the legal opinion Reform claims to have based this latest policy on.
Invading France?
It seems strange to have to make the point that invading the territory of another state is contrary to international law, but for the sake of completeness:
Article 2(4) of the UN Charter stipulates that: all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.
Using RN vessels to take the Royal Marines (or any service person) inside the territorial waters of another country, here France and/or Belgium, to intercept small boats, and then sailing on to the coasts of those countries to forcibly disembark those people would entail a sustained incursion into those countries’ territorial waters and, presumably, some incursion onto their land, if the plan entails, at it appears to, enforced disembarkation at a port or otherwise along the coast.
Reform has thought about this though. They will seek the French Government’s agreement to their proposal.
Helpfully, the French have already made their position clear and yesterday, the French Interior Ministry issued a statement saying, correctly, that the proposal ‘would constitute a violation of French sovereignty, as well as a violation of the law of the sea and international law.’
Plan B then, according to Yusuf, is that Reform ‘will argue with the French’, appearing to suggest to the BBC that a refusal to co-operate by France with the British armed forces invading their territory would amount to a ‘crime against humanity’, rather overlooking the fact that transporting a group of vulnerable migrant people at risk of being lost at sea out of British territorial waters, into French territorial waters and dumping them on the shore there raises a number of its own questions about international human rights protection, not least potential breaches of the 1951 UN Convention on the Status of Refugees.
International maritime law
International maritime law establishes the parameters of what can and cannot be done with those in danger of being lost at sea. The duty to render assistance at sea is a long-standing rule of international law. It applies to all vessels and to all areas of the sea and is codified in various international conventions.
The critical convention is the 1982 UN Convention on the Law of the Sea (UNCLOS). This contains the core duty to render assistance, and provides that every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers, to render assistance to any person found at sea who is in danger of being lost.
The 1979 Search and Rescue Convention (SAR) divided the world’s sea areas into search and rescue regions within which the coastal State is responsible for the provision of search and rescue services. It also established that the State responsible for the search and rescue region in which such assistance is rendered shall ensure that survivors assisted are disembarked and delivered to a place of safety, as soon as reasonably practicable. Most of the small boat crossings take place at the narrowest point of the Channel, the Dover Strait. It is just 21 miles across and consists of British and French territorial waters. What is the nearest safe port will depend on where a small boat is intercepted, but the critical point is that they are to be taken to a place of safety as soon as reasonably practicable. In the Dover Strait, that is likely to be the State responsible for the search and rescue zone in which the vessel is intercepted.
The 1974 International Convention for the Safety of Life at Sea (SOLAS) is the main international instrument dealing with the safety of lives at sea. It requires assistance to be provided regardless of nationality, status or the circumstances in which the survivors are found.
The International Maritime Organisation Guidelines on the Treatment of Persons Rescued at Sea 2004 adds flesh to the bones of these conventions and among other things, defines a ‘place of safety’ to which rescued persons should be transported as a location where rescue operations are considered to terminate. It is also a place where the survivors’ safety or life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met.
None of these conventions empower a State to consider their government’s migration policy as part of an assessment of what is a ‘place of safety’. Nor do they permit a State’s armed forces to go into the territorial waters of another state to seize and return people to that state. Indeed, in most cases, to do so may well amount to a flagrant breach of these conventions.
Risk to service personnel
Yesterday Yusuf seemed to be suggesting RN Bay Class warships could be used for these operations (though a later document refers to ‘off shore vessels’), with the Royal Marines (RMs) hopping into smaller inflatables to actually undertake the interception. The RMs would then pick up the people, put them on the larger RN vessel which would apparently then sail into French territorial waters to dump these people on shore there.
Directions given to Service Personnel have to be lawful and Service Personnel are subject to rules of engagement. It is a complete fantasy to suggest that they can simply start sailing into another country’s territorial waters to execute British policy without the consent of the other state. Service Personnel are not trained to undertake this kind of exercise. Imagine a group of already desperate people faced with an impending RN vessel and imminent on-boarding by a bunch of burly marines via an inflatable. The risk of panic, drowning and loss of life is likely to increase. In that situation the RN risks creating the very conditions that could lead to a loss of life. Inquiries will rightly follow with potential criminal investigations (whether in France or the UK) into the conduct of those tasked with carrying out the operation. The numerous former RN officers expressing their serious concern about the proposals in the press yesterday shows there is little support for this within the service community.
Reform seem to think the answer to everything is to come out of the ECHR (though when it suits them to rely on it, apparently, they will). They think they can get around all these problems by pretending this is not an illegal pushback policy but rather, ‘rescue and return’. It is not rescue and return. It is the latest unconscionable chapter in their playbook. It is contrary to law, will enflame international tensions, further dehumanises migrant people, and puts service personnel at risk.