The application of human rights law and refugee law at sea : a focus on search and rescue operations

Abstract

Irregular maritime migration is a multi-faceted phenomenon characterized by diverging interests. The subject of irregular maritime migration is the human being. This introduces human rights and refugee law considerations which must be central to any State response concerning this phenomenon. These considerations are often juxtaposed with State interests, such as securing borders and minimizing the amount of migrant arrivals. This dissertation focuses on the human element as the locus of irregular maritime migration by examining the relationship between the overlapping branches of international law, namely the law of the sea, human rights and refugee law, which comprise the legal regime governing maritime migration. Migrants and refugees at sea are afforded human rights protection by virtue of general international law and particular treaties such as the European Convention on Human Rights and the Convention Relating to the Status of Refugees. Close consideration will be given to the application of human rights at sea and the principle of non-refoulement under refugee law through de jure and de facto jurisdiction. Furthermore, the laws governing search and rescue operations, including the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea and the International Convention on Maritime Search and Rescue will be analysed together with the meaning of ‘distress’ and ‘rescue’ and the 2004 International Maritime Organisation amendments. This analysis will highlight the disembarkation lacuna present in the legal regime which hinders the effective human rights protection that migrants and refugees at sea are entitled to. Reference to key judgements will illustrate the jurisdictional issues met when determining State responsibility for human rights violations as well the trigger of States’ due diligence obligations. This dissertation concludes by gathering the key findings and discussing the importance of adopting a human-rights based approach to regulate irregular maritime migration.