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The Positive Obligation for States to Search and Rescue Migrants at Sea

Sara Massimi

LL. M. in International Human Rights.

2019 – Contemporary Issues in International Migration Law

Module No. LW5105.

Prof. Siobhan Mullally.

02.05.2019

Abstract

In the last decade, the European borderscape has assisted to a steep increase in migration. Indeed, asylum seekers fleeing from the shores of North Africa attempt perilous journeys in search of a better future for them and their family. Unfortunately, they have not only to cross borders but the sea. In the last years, the Mediterranean route has been declared as one of the most unsafe paths to embark on for migrants and asylum seekers. In this context, the European States witnessing this process, instead of choosing for proactive-humanitarian assistance, started to adopt more and more a securitarian approach.

Indeed, if until 2014 the Italian-led Operation Mare Nostrum was pre-emptively searching and rescuing migrants at sea, from 2015 onward the Operations shifted toward a more securitarian methodology, excluding the search and rescue component – i.e. saving the lives of people – and investigating on smugglers and traffickers. Thus, enveloping with a criminal allure all the unseaworthy vessels full of asylum seekers found at sea. This, however, did not stop migrant’s journey, on the contrary, it just shifted the criminal routes and increased the deaths at sea.

Nonetheless, even though it seems that the sea is a lawless space and there is no liability for those deaths, a constellation of international norms are pertinent in this space. Indeed, both Human Rights Law, Refugee Law and the International Law of the Sea are applicable and contains norms available for the protection of said migrants.

As a matter of fact, through both legislation and case law, this paper argues that there exist not only norms for the protection of the aforementioned individuals. Nevertheless, firstly, it is possible to affirm that there exist State’s jurisdiction – outside of the territory – in the Mediterranean Sea granted by the Search and Rescue Convention and other Law of the Sea norms. Secondly, States cannot act negligently in the Mediterranean space but have a positive obligation to search and rescue migrants at sea. Indeed, States may be held liable for a violation of the European Convention on Human Rights as a consequence of their negligence because of the knowledge requirement contained in the articles of the Convention and its Case law.

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