This article compares the law and practice of the European Union and Australia in respect to the search and rescue (SAR) of boat migrants, concluding that the response to individuals in peril at sea in both jurisdictions is becoming increasingly securitized. This has led to the humanitarian purpose of SAR being compromised in the name of border security. Part I contrasts the unique challenge posed by SAR operations involving migrants and asylum seekers, as opposed to other people in distress at sea. Part II analyses the relevant international legal regime governing SAR activities and its operation among European States and in offshore Australia. Part III introduces the securitization framework as the explanatory paradigm for shifting State practice and its impact in Europe and Australia. It then examines the consequences of increasing securitization of SAR in both jurisdictions and identifies common trends, including an increase in militarization and criminalization, a lack of transparency and accountability, developments relating to disembarkation and non-refoulement, and challenges relating to cooperation and commodification.
The COVID-19 pandemic has had a devastating impact on the institution of asylum, exacerbating longer term trends limiting the ability of asylum seekers to cross-borders to seek protection. As a result, the early months of 2020 saw an effective extinguishment of the right to seek asylum. This working paper examines how this played out in Australia, Canada, Europe and the United States. National and regional responses varied, with Australia and the United States effectively ending asylum seeking. In Europe, some states upheld the right to seek asylum by exempting asylum seekers from general border closures, while other countries used the crisis to suspend the right to seek asylum. Finally, this working paper explores strategies for restoring and protecting the right to seek asylum beyond the pandemic.
This Article examines how wealthy democratic states evade and avoid their international obligations towards refugees. The focus is on two strategies. The first is hyper-legalism—an overly formalistic bad-faith approach to interpreting international law. The second is obfuscation, which involves secrecy about what actions the government is taking and deliberate silence as to the purported legal justifications. The discussion is illustrated with examples from the United States, Australia, and Europe. The Article concludes with a discussion of possible tactics for resisting these strategies and holding governments accountable for their actions.
This article explains the way that Australian coroners’ courts often fail Aboriginal and Torres Strait Islander peoples. We discuss the gap between the expectations of families of the deceased and the realities of the process of the coroner’s court. The discussion is illustrated with reference to real-life examples, drawn from the authors’ experiences representing the families of the deceased.
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