By Stefanie Grant, a lawyer and consultant to Harrison Grant, solicitors
In recent years, European states have tried and tested a wide range of laws and policies to prevent the arrival by sea of unauthorised refugees and migrants. The European context is complex, because it involves many different state ‘actors’ and institutional mechanisms: legislation of the European Union [EU], and its enforcement at EU external borders; laws of states, applied at national frontiers; the coast guard work of Frontex, on the one hand, and the normative work of the Council of Europe and the European Court of Human Rights [the Court], on the other. But nonetheless there are similarities between European responses to irregular migration, and policies at maritime borders in other regions of the world.
Significant numbers of migrants and refugees have died at these sea frontiers, but their deaths have often been accepted as a ‘tragic by-product’ of legitimate state action to control national borders, combat terrorism and international crime, and prevent irregular migration.  Media reporting has generally emphasised the arithmetic of arrivals, and the viewpoint of states, rather than the cost in human lives of closed borders. Human rights challenges to the harsh logic of European border control have come from civil society rather than states, and the voices of refugees and migrants are little heard. Governments have faced little pressure from migrants’ states or families to record and account for the deaths.
These state-centric approaches have recently come under scrutiny. Measures to curb arrivals from Libya in 2009, and from north Africa in 2011, have been examined. Judges on the Court and parliamentarians of the Council of Europe have assessed European states’ actions, using criteria set by international human rights and maritime law, and questioning governments about the interception of refugees and the failure to rescue migrants in distress at sea. Families have asserted their right to know the fate of missing relatives.
This article first considers the wider international context in which these developments should be seen. It then examines three situations between 2009 and 2011, in which the treatment of refugee and migrant flows across the Mediterranean led to an examination of human rights duties to protect refugees and migrants: first, the interception and refoulement of asylum seekers at sea; second the failure by naval, military and commercial vessels to rescue a migrant boat in distress; third, the demand of Tunisian mothers for information about sons who were missing after leaving by sea to Italy. It then discusses the need for common international standards for the identification and recording of refugee and migrant deaths at sea.
Deaths at sea: the global context
Rising numbers of refugee and migrant deaths are perhaps the most tragic consequence of an international increase in irregular migration. Forced migrants fleeing situations of persecution, poverty and conflict are unable to move legally to more secure or more developed countries in the face of closed borders and restrictive immigration policies. The result has been a rise in irregular and clandestine migrant journeys along more dangerous sea and land routes. As national borders have been closed and even fortified, the activities of traffickers and smugglers have prospered, and rights abuses against migrants have increased.
The problem is most acute on certain migratory fault lines, dividing countries which are unsafe or poor compared to their more secure or prosperous neighbours, on which migrants die in their effort to move from one to the other. Emigration is ‘pushed’ across these fault lines by persecution, insecurity, poverty and conflict, and immigration is ‘pulled’ by labour demand, economic opportunity, and by the need for protection and personal security. This dynamic often reflects a growing disjuncture between migratory pressures, on the one hand and, on the other, economic opportunity behind closed borders in a globalised world economy. More serious in terms of human rights protection is the fact that the number of refugees and migrants who move irregularly has increased, as destination countries have tightened, extended and externalised their border controls, integrating immigration control into policies to address terrorism, national security and international crime. In the case of the EU, these controls have been ‘externalised’ to countries of departure and transit in Africa and elsewhere.
One result, whether direct or indirect, is a high toll of refugee and migrant deaths along land borders – between Turkey and Greece, Mexico and the US - and at maritime borders - between north Africa and southern Europe, between the Horn of Africa and Yemen, between Thailand, Indonesia and Australia, and between Myanmar and Bangladesh.
The number of migrants and refugees who attempt to cross these sea borders is unknown, as are the numbers who die on the journey. But some indicative data exists.
Although a 2010 shipwreck in which 50 asylum seekers died off the coast of Christmas Island was the largest peacetime loss of life in Australian waters in 115 years, losses have been much greater in other places. There were more than 300 deaths when Thailand cast adrift over 1,100 Burmese Rohingya refugee ‘boat people’ in 2008, in boats without engines and little food or water. 860 boats, carrying 43,586 people, crossed the Gulf of Aden in the first eight months of 2009, with 273 losses.
In Europe, after tightened border controls in 2009, and a drop in irregular crossings, the numbers arriving in southern Europe from north Africa rose again in 2011, when political change in Tunisia and conflict in Libya were accompanied by lifting of border controls, and large scale displacement. A record 58,000 migrants, asylum-seekers and refugees arrived in 2011 in irregular mixed flows; the majority – 56,000 - landed in Italy, most of whom came in the first half of the year. Frontex reported a sharp increase in detected Tunisian arrivals, up from 323 in the last quarter of 2010, to 20,492 in the first quarter of 2011. By October 2011, conflict had forced the exodus of over 700,000 from Libya. Most were migrant workers from sub Saharan Africa, and many crossed land borders to Tunisia, Chad, Niger, Algeria, Sudan and Egypt. But for others there was no option but to leave by sea. Italian Refugee Council data suggested that for every 25 migrants who arrived safely in Europe, it was likely that one did not make it. The United Nations High Commission for Refugees (UNHCR) estimated that more than 1500 died or were lost at sea on crossings from north Africa to Europe in 2011. This figure was based on interviews with people who reached Europe on boats, telephone calls and emails from relatives, as well as reports from survivors in Libya and Tunisia whose boats either sank or were in distress in the early stages of the journey. But the real figure was certainly very much higher because the bodies of those who die at sea are often thrown overboard and cannot be counted.
International law provides a framework within which issues of responsibility and accountability should be addressed in the context of irregular migration by sea. The rules are drawn from international refugee, human rights, criminal and maritime law.
The starting point is that states have a general obligation to respect and ensure the fundamental rights of all migrants. Rights which are most at risk in the context of irregular frontier crossings include the right to life, protection from inhuman and degrading treatment, the right to food and drinking water, to emergency health care, and access to legal remedies. States must avoid measures that limit or infringe on a fundamental right. There is a duty to prevent avoidable loss of life. The obligation extends to acting with due diligence to prevent and punish abuses against migrants, whether the perpetrator is a state agent of a private individual. Refoulement – forced return to a situation of persecution, torture or irreparable harm - is prohibited under international refugee law and international human rights law.
Since 2000, international criminal law has required states to make trafficking in persons and people smuggling a criminal offence, and to prosecute traffickers and smugglers, while protecting the rights of migrants who are smuggled and trafficked. The Smuggling Protocol requires states to protect ‘in particular’ migrants’ right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
A ship master’s obligation to rescue is both a long-standing maritime tradition and an obligation in international law. States should require the master of a ship flying its flag to render assistance to any person found at sea in danger of being lost; a shipmaster who is able to provide assistance is bound to proceed with all speed to rescue persons in distress at sea. But shipmasters were increasingly finding themselves in situations where, even after rescue had taken place, states would not allow undocumented migrants and refugees to land. Laws were therefore amended in 2004 to require states to arrange disembarkation as soon as reasonably practicable.
Although it is a basic human rights principle that a state’s right to control its borders should be accompanied by a duty to respect the human rights of refugees and migrants, the principle has not proved easy to apply in the context of deaths at sea. The immediate cause of death is often beyond the state’s immediate control: most of those who lose their lives are victims of extreme weather and unseaworthy boats. Crossing dangerous seas may require the assistance of smugglers, and often exposes refugees and migrants to abuse at their hands. Causes of death among Ethiopians and Eritreans who crossed the Gulf of Aden included not only drowning in rough seas, but also beatings by smugglers, lack of food and water, suffocation because too many people were confined in too small a space, and suicide by desperate passengers who jumped into the sea.  But prosecution of smugglers is often difficult in practice.
Calculating what have been called the ‘human costs’ of border control  requires a complex assessment of the wider effects of closed frontiers. Such an assessment was made by the US Government in response to a rise in deaths on the Mexico-US land border. At the request of the US Congress, the federal General Accounting Office examined deaths on the US border with Mexico. It found that tighter border control had not deterred illegal entry, but rather diverted routes to more dangerous terrain, with many aliens risking death and injury ‘by trying to cross mountains, deserts and rivers.’ 
Similarly, UNHCR has noted that with few opportunities to enter the EU by regular means, thousands of people threatened by persecution and serious human rights violations in their home countries ‘have no choice but to take the dangerous sea route.’
European governments have been slow to examine publicly the, admittedly complex, links between border control, dangerous routes, refugee protection, rescue of those in distress, and border deaths. But their actions have recently come under scrutiny in relation to the refoulement of asylum seekers, and to one tragic failure to rescue refugees and migrants in distress at sea.
Hirsi v Italy: refoulement of asylum seekers
This was the first judgment by the European Court of Human Rights on interception at sea; the case was brought by asylum seekers who were forcibly returned to their point of departure, without an examination of individual asylum claims. 
In May 2009, a group of 200 migrants sailed from Libya on board three boats with the aim of reaching the Italian coast. They were then intercepted by Italian ships, transferred to Italian military ships, their personal belongings and identity papers were confiscated, and they were returned to Tripoli and handed over to the Libyan authorities. This ‘push back’ policy followed the signing of a ‘friendship agreement’ between Libya and Italy in 2009 in which the states had agreed – inter alia – to repatriate clandestine immigrants.
Twenty four members of the group - 11 Somali nationals and 13 Eritrean nationals – later appealed to the Court; they claimed that they were refugees and that their forced return to Libya, with the resulting risk that they would then be forcibly repatriated [refouled] to Somalia and Eritrea, was in breach of their right to be protected from torture or inhuman or degrading treatment or punishment, under Article 3 of the European Convention on Human Rights [European Convention]. The Court’s unanimous ruling – in favour of the refugees – found, inter alia, that their rights under Art. 3 had been violated twice, first because of the risk of ill treatment in Libya, and second because of the risk that they would be repatriated by Libya to other countries where there was a risk of ill treatment in breach of Art. 3. The Court also found a violation of Art. 13, because they had no legal remedy in Italy.
Italy argued that the applicants had been intercepted on the high seas, had thus not been in Italian territorial waters, and so had not come under Italian jurisdiction. The Court responded that although they had not been on Italian soil, they had been on Italian military ships, and were therefore under the exclusive legal and actual control of the Italian authorities.
Italy also argued that none of the applicants had requested international protection as refugees when they were on board the Italian ships. The Court responded that it was for Italy, faced with a situation in which human rights were being systematically violated, to find out about the treatment the applicants would face on return. In other words, the obligation of non-refoulement arises whether or not there is a formal request for asylum.
A third Italian argument was that the applicants were not at risk of ill treatment in Libya because Libya had ratified human rights treaties, and undertaken to comply with the Universal Declaration of Human Rights when it signed the ‘friendship treaty’ with Italy. The Court rejected this argument, on the ground that there were reliable reports of human rights violations against irregular migrants in Libya, noting that the ratification of international treaties did not in itself ensure adequate protection against the risk of ill treatment.
The Court’s judgment means that even on the high seas, international human rights norms apply, including the principle of non-refoulement, prohibiting the return of people to a country where they run the risk of human rights abuse.
Council of Europe: responsibility for lives lost in the Mediterranean
In June 2011, in response to arrivals from North Africa, the Council of Europe’s Parliamentary Assembly [PACE] adopted a resolution on the rescue at sea of asylum seekers, refugees and irregular migrants. It recorded that disagreements between European states on the nature and extent of their responsibilities affected their ability to ‘manage … maritime arrivals’. It noted that although many had been rescued, the ‘list of fatal incidents – as predictable as they are tragic – is a long one and it is currently getting longer on an almost daily basis’. 
‘Shocked’ by a press report that 63 migrants had been left to die in the Mediterranean, PACE had also launched an investigation into the circumstances in which a boat carrying 72 people was left adrift in the Mediterranean for 12 days without food, fuel or water, and without rescue.  The investigation interviewed the 9 survivors, as well as governments and governmental agencies who were operating in the area where the boat drifted.
On 26 March 2011, 70 adults - from Ethiopia, Ghana, Nigeria, Eritrea, and Sudan - and two babies had been taken by Libyan soldiers to board a smuggler’s boat bound for Italy. Their provisions were removed by the smugglers, who wanted to fit as many people as possible into the space, leaving the passengers with a box of biscuits and a few bottles of water for what they were told would be an 18 hour journey. On the second day, the passengers called an Eritrean priest in Rome, to say that the seas were rough, they were running out of fuel, and needed help. He alerted the Italian coastguard, who established the boat’s location. Soon after, a military helicopter appeared, and lowered some water and biscuits by rope. Thinking that rescue was at hand, the boat’s ‘captain’ threw the compass and phone into the sea: he did not want to be found with them in his possession lest they be used as evidence of his involvement in a smuggling network.
But there was no rescue. The boat ran out of fuel, water and food. At one point, it drifted near to some fishing boats, which gave no assistance, drew up their nets and sailed away. By the fifth day, passengers were dying. By the tenth day, when half the passengers had died, the boat drifted towards a large military vessel, which appeared to be an aircraft carrier. The surviving passengers could see people on board looking through binoculars and taking photographs of the boat. They shouted and waved their hands, held up the dead babies, and showed the sick women and empty fuel tanks. But the ship sailed away. By 10 April, when the boat had washed up on Libyan shores, only 10 passengers were still alive. They were arrested, their possessions were removed – wedding rings, documents, photographs – and they were taken to a prison. There was no appropriate medical treatment, and one more died. Eventually, with outside help, the survivors bribed their way out of prison, and sought shelter and treatment at the Catholic church in Tripoli. They then escaped from Libya; most applied for asylum in Europe.
PACE’s investigation asked why, despite distress calls, and contact with several military and civilian vessels, no-one had gone to the aid of the boat. Why had there been a ‘responsibility vacuum’ in an area of the sea in which at that time a large number of planes and ships involved in the multinational military intervention in Libya were operating, and where the North Atlantic Treaty Organisation [NATO] was monitoring all sea traffic as part of the maritime embargo over Libya.
In the case of the commercial fishing boats, the investigation found that rescue of migrants in the Sicilian Channel had been actively discouraged; ship masters had been charged with the criminal offence of facilitating illegal migration after taking migrants in distress on board, and disembarking them in Italy. Although eventually acquitted, the fishermen had suffered severe economic loss, having been on trial for several years, and having had their vessels temporarily confiscated. Disputes, about which state was responsible under maritime law for allowing rescued migrants to disembark, meant that a fisherman who rescued migrants did not always know where they could land.
The investigation’s report found a ‘catalogue of failures’: by commercial fishing vessels to respond to calls for assistance; by NATO, and individual states who were militarily involved in Libya, to anticipate and plan for the exodus of asylum seekers and refugees; by Malta and Italy to launch rescue operations because of disagreements as to who should take over Libya’s search and rescue responsibilities. The deaths were also the result of a ‘reckless disregard’ by smugglers for migrants’ lives.
In an effort to prevent similar tragedies, PACE recommended a thorough review of existing protocols regarding migrants trying to cross the Mediterranean. Clarification was needed on the demarcation of search and rescue obligations between states, as was improved communication between national coastguards and military vessels, an end to any ambiguity over what constitutes a distress call, and more long-term planning to anticipate higher migrant flows at times of military conflict. States should tackle the reasons why fishing vessels fail to rescue, ranging from economic costs, to the fear of being prosecuted for aiding irregular migrants.
But many of the recommendations require changes to be made at the level of national parliaments and supranational bodies such as the EU, UN and Nato. This will take time, and considerable political will.
Anonymous deaths and a right to identity
One common characteristic of frontier deaths is their anonymity. Where bodies are recovered, it is often the case that their names – and even their nationalities – are unknown. They are added to the growing number of anonymous migrant graves, many of them around Europe’s southern frontiers. Although Fortress Europe is able to name some of those who died on land frontiers, and in detention, every death on its list of those who died at sea is marked ‘NN’ – not named.
The PACE investigation recognised this problem, recommending that member states respect the families’ right to know the fate of those who lose their lives, by improving identity data collection and sharing. It proposed the setting up of a DNA file for the remains of those retrieved from the Mediterranean.
The need for such a database is evident from the experience of Tunisian families whose relatives went missing in 2011. The young men had left Tunisia for Italy, but their families did not know if they had arrived. Six boats were involved; it was possible that the men were shipwrecked and that they had died, but it was also possible that some had arrived and been detained. Their mothers organised and took action, demanding access to Italian immigration records which they believed could identify whether their sons were alive. They demanded action by the Tunisian and Italian authorities. They demonstrated outside the Italian embassy, and outside the Tunisian Ministry of Foreign Affairs during a visit by Italian parliamentarians. Tunisia collects fingerprints for national identity cards, and Italy collects fingerprints from arriving migrants, so the mothers travelled to Italy to ask for an exchange of digital fingerprints to determine whether their sons had arrived in Italy. Tunisia sent fingerprints, and Italy agreed to review its records, describing the search for missing Tunisians as a ‘right’ for the Tunisian Government and a ‘commitment’ for Italy. Tunisia then formed a commission to work on locating missing persons, including personnel from the Ministries of Justice, Interior, Defence and Foreign Affairs. But - as the composition of the commission suggests - official procedures are complex, and made more so by the fact that some arriving Tunisians used false identities. Delays from administrative complexities and lack of coordination frustrated families, and in April 2012 the parents of one young man set themselves on fire in protest at the lack of information. In May, Italy’s Interior Minister acknowledged the significance of the case at a human level, but said that the Italian police had found records of only eight out of 142 Tunisians whose fingerprints had been examined; only one record was recent. 
The mothers’ perspective is described in these terms:
Imagine: your brother or your son leaves and, after his departure, you never hear from him again. Has he arrived? …You wait for a couple of days, you watch TV looking for images of places where your brother or your son might be, hoping that you will spot him. You start to realise that your son or your brother is not the only one who has left and never called home again. You start to organise with other families, to ask your country’s authorities to investigate…. But the authorities don’t do anything. They don’t ask and they don’t talk to you and this situation goes on for months. In the meantime, you organise sit-ins and marches, you talk with journalists and various associations’ representatives. You bring your son’s or your brother’s picture everywhere, you talk to anyone you meet who might be from the country where he was headed, you show them his picture, his day of birth… You want to know what happened. But still nothing moves, and you start to imagine what could have happened.
Three lessons can be drawn from these events.
First, the acceptance by Italy that Tunisia had a right to know what had happened to its nationals reflects the long standing principle of diplomatic protection enjoyed by a state in relation to its nationals. But it is very rare for diplomatic protection to be asserted for the benefit of irregular migrants missing at sea. There is, of course, an important distinction between these Tunisian migrants, who can properly look to their country of nationality for protection, and refugees, who by definition cannot do so. But a general duty to identify the missing applies to both.
Second, these families could take public action because of democratic change in Tunisia in 2011. Families of migrants in other countries may not have the same freedom. So the demands of the Tunisian mothers should be seen as having a wider significance, representing families in less democratic countries who want to know the fate of missing relatives but are unable to make public demands.
Third, the difficulties faced by the Tunisian mothers in finding out what had happened to their sons reflect a more general problem: the absence of common international practices for correlating information about migrant deaths between different states. The technical skills needed for identification exist, including fingerprints and DNA, but there is no international framework establishing what information should be collected and how it should be shared.
A good starting point for such a framework would be to review international practices for responding to death and loss in situations of humanitarian emergency. These typically use principles drawn from human rights and humanitarian law, focusing first on prevention of deaths, and then on identification of the dead. They acknowledge a duty to treat the dead with respect and dignity, to acknowledge the rights of families, and – where possible – to return bodies to the families. They recognise that families have a right to know the fate of missing relatives, to have access to information on the place of burial, and to obtain the confirmation of death needed to clarify inheritance, marriage or property rights.
A useful first step would be for states to develop common standards in two areas:
• Preservation of evidence for identification – DNA, photographs, fingerprints, possessions, clothing. This will enable families to obtain information at some future time and establish if a relative has died.
• Creation of an international database in which deaths would be registered, and which relatives could access.
Although the events discussed in this article took place in Europe, they have a wider importance because the principles involved are international. The judgment of the European Court of Human Rights, the lessons from the Council of Europe’s investigation, and the acceptance by Italy that the families were entitled to know the fate of their relatives, are all of direct relevance to refugees and migrants at risk in any region of the world.
 European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.
 Doris Meissner [former Commissioner of the US Immigration and Naturalisation Service], Department of Homeland Security and Immigration: taking stock and correcting course, Doris Meissner and Donald Kerwin, Migration Policy Institute, Washington DC, 2009.
 See generally Weber, L., Pickering, S. 2011, Globalization and Borders: Death at the Global Frontier, Palgrave Macmillan, UK.
 Equal Rights Trust, Unravelling Anomaly: detention, discrimination and the protection needs of stateless persons 2010, p.162.
 BBC News, 15 September 2009.
 See generally, Forced Migration Review issue 39, ‘North Africa and displacement 2011-2012’.
 Frontex, FRAN Quarterly Issue 1, January-March 2011: 29.
 IOM Response to the Libyan Crisis, External Situation Report, 10 October 2011.
 Stephan Faris, ‘Hundreds More Die at Sea fleeing North Africa for Europe’, Time, 8 April 2011.
 See generally, Migration and International Human Rights Law, Practitioners Guide No.6, International Commission of Jurists, Geneva 2011.
 Contained in two protocols to the 2000 UN Convention against Transnational Organised Crime: Protocol to Prevent, Suppress and Punish Trafficking in Persons, and Protocol against the Smuggling of Migrants by Land, Sea and Air.
 Migration and Human Rights Law, supra, pp. 88-91.
 Medecins Sans Frontiers, No Choice: Somali and Ethiopian Refugees, Asylum Seekers and Migrants Crossing the Sea of Aden, June 2008.
 Thomas Spijkboer, ‘The Human Costs of Border Control’, European Journal of Migration and Law 9 (2007) 127-139
 GAO-06-770, Illegal Immigration, Border Crossing Deaths have Doubled since 1995; Border Patrol’s Efforts to Prevent Deaths have not been Fully Evaluated, p.2.
 Mediterranean Sea Arrivals: UNHCR calls for access to protection, UNHCR Briefing Note, 9 January, 2009.
 European Court of Human Rights, Hirsi Jamaa and Others v Italy, Application no. 27765/09, Marie-Benedicte Dembour, Strasbourg Observers
 ’Lives lost in the Mediterranean Sea: who is responsible?’, Council of Europe Parliamentary Assembly, Report of Committee on Migration, Refugees and Displaced Persons, Rapporteur: Ms Tineke Strick, Doc. 12895, 5 April 2012.
 See generally Stefanie Grant, ‘Identity Unknown, migrant deaths at sea’, Forced Migration Review, No. 38 2011. See generally Stefanie Grant, ‘Recording and Identifying European Frontier Deaths’, European Journal of Migration and Law, 13.2 2011; ‘Migration and Frontier Deaths: a right to identity’ in M Bénédicte-Dembour & T Kelly (eds), Are Human Rights for Migrants?: Critical Reflections on the Status of Irregular Migrants in Europe and the United States, Abingdon, Routledge 2011.
 Countries of origin include Afghanistan, Algeria, Somalia, Tunisia, Bangladesh, Egypt, Eritrea, Morocco, Ghana, Nigeria, Congo, Iran, Ivory Coast, and Chad.
 Lives lost in the Mediterranean Sea: who is responsible?, supra, para.13.5.
 Photo reportage by Sara Prestianni. Mediterranean, para. 13.5.
 Le Temps, 4 February 2012; ‘Search for Tunisians missing is a right for Tunisia and commitment for Italy [Italian Minister]’,Tunisian Press Agency, 15 February 2012; ‘Tunis: parents of missing harraga intend to commit suicide by fire’, press statement, Forum Tunisien pour les Droits Economiques et Sociaux, 21 April 2012; http://www.statewatch.org/news/2012/jun/02italy-libya.htm.
 Storie Migranti
 Guiding Principles/Model Law on the Missing, International Committee of the Red Cross, Geneva, 2009.