How can we possibly protect someone who, having lost everything else, risks his life by fleeing on an unseaworthy boat? Refugees take to rough waters because there are no alternative migration channels on land — and they prefer the risk at sea over the violence and despair they are fleeing.
I have just returned from a meeting convened by the United Nations Refugee Agency (UNHCR) in Geneva of government officials, advocates and experts from around the world to confront one of the most “wicked problems” of the global refugee landscape — migration by sea. Faced with a staggering loss of life of migrants who escape by boat despite huge risks, one goal of the dialogue was to deter governments who “rescue” boat people by returning them to their persecutors. While harrowing accounts of perilous, overcrowded maritime escapes from the Middle East and North Africa are making headlines in Australia and Europe, they have gotten little attention in the United States. Yet we too have “boat people,” mostly Haitians and Cubans.
From 2010 through the first half of 2014, 15,190 people in 440 recorded maritime incidents sought safety via boats carrying migrants in the Caribbean Sea. During this time, some 240 migrants drowned, and 176 were missing at sea. The U.S. Coast Guard picked up the rest. The victims of these incidents were men, women and child migrants from Haiti, Cuba, Dominican Republic and other countries of the Caribbean and South America.
All migrants intercepted in the Caribbean must be given meaningful access to asylum in accordance with the Refugee Convention of 1951 and its 1967 Protocol. Currently, Cubans and Chinese interdicted by the U.S. are advised of their right to apply for asylum in their own language. It is unclear whether Dominicans, South Americans and other migrants are treated the same.
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What is clear is that the United States government treats Haitians differently and unfairly.
In 2002, President George W. Bush signed an Executive Order authorizing the Attorney General to return individuals to Haiti without an obligation to screen for a fear of persecution. This order, similar to orders issues by previous administrations, remains in effect and is in direct violation of U.S. obligations under international law.
During the last three decades, U.S. Coast Guard has returned all Haitians who do not demonstrate a “physical manifestation” of a fear or return. Those that pass this “shout test” or “sweat test” may be referred for an asylum screening.
The shout test does not pass the smell test. It is ineffective as a refugee screening tool and makes a mockery of international legal standards. No Haitian has been granted asylum after having been “screened” in this careless and arbitrary fashion. The U.S. Coast Guard has subsequently identified one Haitian as having a manifestation of fear, and that person did not pass the credible fear screening. In contrast, in 2010, 55 percent of Haitians who applied for asylum in the U.S. after arriving by air or land were granted asylum.
All U.S. Coast Guard rescue efforts should include procedures that advise migrants of their right to seek asylum if they fear return. The U.S. should not return an intercepted person until he or she has an opportunity to be individually screened, preferably on land, for a fear of persecution.
Also concerning are the bilateral agreements on interdiction in the region. For example, the U.S. engages in joint interdiction operations with the Bahamas. Pursuant to these agreements, migrants are disembarked in the Bahamas, where there is no meaningful process to identify those with a fear of return. This is unacceptable. The U.S. should review the practice of sending intercepted migrants to countries that are not known to respect their international obligations. Such obligations are enshrined in the 1951 Refugee Convention and other international human rights instruments.
The U.S. should provide alternative channels for safe and legal migration that would reduce the need for refugees to risk their lives at sea, including development assistance in the region, humanitarian visas, and opportunities for legal migration.
The recent announcement by the U.S. government of a Haitian Family Reunification program, which permits certain Haitians to join family members in the United States, is a good step. Such legal avenues provide an alternative to migration by sea — and more importantly, to the potential loss of life. As the High Commissioner said at the Geneva dialogue, “Protection at sea starts with protection on land.”
There are no easy answers to the dilemma posed by migrants who flee danger by sailing into danger. But even at sea, all individuals have the right to seek protection from persecution without having to “shout” or “sweat.” Motivated by refugee protection, we hope the U.S. and other governments not only spoke during the dialogue, but also listened. That might save lives.
Mark Hetfield is president and CEO of HIAS, the international Jewish nonprofit that protects refugees.
©2014 Mark Hetfield