By Timothy William Waters
The sea is vast, but the horizon is near. If you are in the water, you see hardly any distance. With every foot of elevation, the horizon recedes: Five feet above sea level — standing on a raft — it’s three miles away.
So, from the deck of your foundering vessel, you might still see Libya, as your rescuers arrive.
Earlier this month, aid groups and the Italian Coast Guard rescued hundreds of African migrants off the Libyan coast. The scene was captured in sickening photos: overcrowded boats compared to slave ships, the rescued clambering over the bodies of the dead. The only redeeming part of this piteous spectacle was the humanitarian response.
Yet rescue may be the wrong thing to do; perhaps we should send these people back. Because, in this modern Middle Passage, the slaves are paying their own way and the humanitarians are providing the ships.
Although these recent images were shocking, what they captured has been going onfor years, ever since Libya descended into chaos after the fall of Col. Muammar el-Qaddafi. More than 150,000 made this crossing in 2015 — and since the Aegean route from Turkey to Greece closed earlier this year, traffic through Libya has increased.
The crossing from Africa is much more dangerous, and more traffic has meant more deaths — over 3,000 this year, the highest rate in years. Some people drown, others are crushed on overcrowded decks, or suffocate in holds.
From the photos of the rescues earlier this month, one might imagine they took place on the high seas. In fact, they occurred only about a dozen miles off the Libyan coast. The closest place in Italy, where these migrants were heading, is Lampedusa, an island almost 200 miles from the Libyan capital, Tripoli. Using radar and spotter planes, the rescuers search for migrants just off Libya, then transfer them to warships bound for Europe.
The migrants are, in effect, paying to be rescued. They have little prospect of making the crossing unaided, and a majority of the 110,000 people who have reached Italy this year made it on rescue ships. The smugglers know this, so they launch unseaworthy boats without enough fuel or food. Why invest in supplies that won’t be needed? The rescue is the route.
The surest way to shut down this dangerous transit is to stop providing transport. No one should be left to drown, but there is an alternative: Rescue them and send them back. The drownings will stop when the boats stop leaving, and the boats will stop when the traffickers can no longer convince migrants they can get across.
Sending migrants back wouldn’t require establishing an international presence in Libya. Libyan boats could be hired to tow migrants’ boats back in. In fact, the European Union is already working with the Libyan forces to intercept some boats. Smugglers will fight to protect a lucrative business, but militias opposed to them would willingly accept European backing to combat them. And naval forces already involved in rescues could provide cover, instead of doing the smugglers’ work for them.
Interdiction might seem to violate asylum rules. But people rescued at sea have no right to claim asylum on a vessel, and no right to be taken to their preferred destination. States aren’t required to disembark rescued shipwrecked people, even those claiming asylum.
The shipwrecked must be taken to a place of safety. Libya is a dangerous place, especially for migrants, but the recent wave of refugees overwhelmingly chose to travel via Libya (many Syrian refugees fly to Khartoum, in Sudan, and continue overland). Being pulled from the sea to save their lives does not vindicate any asylum claim they may have. It is a perversion of the principles governing asylum to pretend that those in peril at sea have an overriding right not to be returned to a country they chose to enter.
This proposal is realistic and legal, but is it moral? Do we not have obligations to these desperate people? We do, but we don’t fulfill them by making rescue an expectation.
If these people deserve refuge, they deserved it before they boarded those boats. So, process their asylum claims in Libya, their countries of origin or of first refuge, and fly successful applicants to Europe. That would be more humane, would save lives, and might even be cheaper than maintaining a naval cordon.
Europe could do much to improve the dreadful conditions in Libyan detention facilities, and it should work to ameliorate the distant crises that drive millions of people to flee their homes in the first place. But it does not follow that Europe should also operate a ferry service that guarantees entry to those reckless enough throw themselves into the sea. That is not a policy. It is a cruel and deadly lottery.
It is not moral to beckon desperate people and draw them into greater danger. We have an obligation to reach down into the waves and rescue the drowning, but also a responsibility to look over the horizon, and see the effects of our actions in perspective.
Two centuries ago, abolitionists attacked the global slave trade before taking on slavery itself. We face an analogous challenge today: First, stop the grim traffic; then, address the deeper causes that make people enslave themselves to such an evil trade.
The images are horrifying; we must do something. So grant those in peril on the sea the ancient protection: Bring them safely to shore. Then shut the sea gate. Because look, just over the horizon, the boats are filling again.
Timothy William Waters is a professor of international law and an associate director of the Center for Constitutional Democracy at Indiana University Maurer School of Law.
The New York Times