The protection available to migrants at sea under international law

ABSTRACT

The protection of migrants at sea presents a worrying picture as the rights of migrants are usually being violated and ignored at sea than on land. The sea is regarded as a very dangerous environment which has swallowed an estimation of 236.000 migrants in the past decades. Because of these numerous deaths recorded at sea, efforts have been put in place by the international community of states to help combat the problems and difficulties faced by migrants at sea Besides, migrants at sea are always vulnerable as regarding their rights.  They are often ignored by states and their rights at sea such as right to life and health is usually violated and nothing is often done about it. Because of the difficulties faced by migrants at sea, there are some international instruments or mechanisms that have been put in place to protect migrants at sea. Some of them are; the United Nations Convention of the Laws of the Sea (UNCLOS),  Safety of Life at Sea (SOLAS), International Convention on Maritime Search and Rescue at Sea (SAR), the Security Council Resolution 2312 of 2016, Protocol Against the Smuggling of Migrants by Land, Sea and Air, the Prohibition and Prevention of Torture, Cruel and Inhuman Treatment or Punishment at Sea by the United Nation Convention Against Torture (UNCAT), The 1948 Universal Declaration of Human Right (UDHR), Convention on the High Sea, just to name a few.  These mechanisms gives states, ship masters as well as other individuals and Organizations the responsibility or duty to protect migrants at sea in one way or the other. However, even though such mechanisms are put in place to help guarantee the protection of migrants at sea, yet migrants at sea still faces a lot of problems as to their safety and protection. 

The international community of states have responded to an extent positively to the mechanisms protecting migrants at sea as coupled with the instrumental role played by sea Non-Governmental Organizations to saving human life at sea. However, to a greater extent, states and ship masters do no usually respect the provisions of treaties guiding the rights of migrants at sea and as a matter of fact, some states have not even sign to some of those conventions protecting migrants at sea. This have badly led to violation of the rights of migrants at sea from recent years till date, which thus call for concern.

CHAPTER ONE

GENERAL INTRODUCTION

With the improvement of technology and communications, there has been increased movement of people across frontiers, which have led to the strengthening of mechanisms to prevent unlawful entry into territories. With the increasing restrictions placed on lawful immigration, some migrants have engaged in dangerous measures including unsafe voyage by sea to reach their anticipated destinations. In view of their status as migrants, international law has provided some safeguards to migrants travelling at sea and the protections provided under these mechanisms are often invoked by migrants whenever desirable. This chapter discusses the history and evolution of migration in the background to the study, discusses the statement that necessitated the research, the objectives, significance and justification for the study and the theories that underlie it among others.

1.1 BACKGROUND TO THE STUDY

 Migration is the movement of a person or people from one country, place of residence, to settle in another. Migration is often initiated via several routes such as land, air and sea.[1] The sea has long offered passage to a diverse range of people fleeing poverty, conflict, persecution, and oppression, in search of safety and opportunities on the other side. Complex migration routes and mass exploitation of migrants are among the most urgent humanitarian tests of our time. In September 2015, images of three year old Aylan Kurdy lying lifeless on the shores of the Mediterranean Sea shook the conscience of the world. Aylan became a symbol of the plight of thousands of people forced to risk such a fate to escape threat at home. These images shone a light on the failure of the international community to rely in support of refugees and raised a multitude of questions about how we – being members of that community – could have prevented[2]

This phenomenon is not a new one. People have long turned to the sea in flight from poverty and persecution. In the last century, European refugees fled across the Mediterranean to seek asylum in North Africa and the Middle East. Following World War II, thousands embarked on irregular migration journeys from Europe attempting to reach the Palestinian Territories, These include 4,515 people on the ill – fated SS Exodus, most of whom were ultimately deported back to Germany.[3]  Following the Viet Nam War in the 1970s and 1980s Vietnamese “boat people” took to rickety boats in a bid to find a new life elsewhere in the region, some even sailing as far away as Australia. In the same era, Albanians, Cubans and Haitians were drowned to the United States of America in the hope of better opportunities across the sea.[4]

Meanwhile, criminals have become increasingly adept at taking advantage of people’s need to move and their limited choices for doing so, to generate enormous illicit profits by facilitating unsafe migration. Migrant smuggling has been the focus of significant international laws and policies owing to the particular dangers posed to migrants smuggled in perilous conditions at sea. Smuggling by sea has been detected in several regions, including the Gulf of Aden, the Pacific Ocean, the Bay of Bengal, the Andaman Sea and the Mediterranean Sea.

Smugglers often increase their profits by reducing safety and keeping conditions poor on board, which usually mean scramming people into unseaworthy, disposable vessels. To minimize risks to themselves, the profit-makers often do not pilot the smuggling vessels themselves, but instead recruit migrants to captain or crew boats in lieu of a smuggling fee (or a discount on it) or some other incentive. Discounts may also be given to those who undertake sea crossing in winter or under treacherous conditions where there are slim chances of survival.[5]

While significant efforts have been made to strengthen the apparatus used to prevent lives from being lost at sea, State practice has also shown a worrying pattern of either failing to carry out rescue, scrambling to prevent people who have been rescued from reaching their territorial waters, or even pushing them back when they do. Such reactions are grounded in an understanding of State sovereignty that focuses on border integrity instead of a more nuanced approach to the notion of statehood and sovereignty in a global community of actors.[6]  Yet it has been argued that in today’s globalized world, protection obligations should be considered an important aspect of what state sovereignty entails, rather than something that trespasses upon it.

The notion of the protection of migrants at sea have been an issue to talk about. The result is that, states are understandably, often ensure of and may even dispute their obligation to protect lives in the contexts they encounter migrants at sea.  Further, those states that do encounter migrants in need of protection may not be equipped with the capacity and resources required to fulfill their obligations in the areas of the ocean for which they are responsible. The allocation and assumption of responsibility in the maritime context is further complicated by the number of actors-both State and non-state-that may be involved. Two or more states are often involved, raising questions of positive or negative conflicts of jurisdiction and uncertainty regarding the applicable rights regime and who is responsible for protecting persons. Consider the following example: A vessel with irregular migrants on board flying the flag of state ‘A’ may find itself in distress on the high seas near the shores of state ‘B’ but in the search and rescue region for which state ‘C’ is responsible. The vessel in distress itself may be on its way from a transit country, state ‘D’ to state ‘E’ (the neighboring country of state ‘B’), which is the closest port of call. Moreover, a ship registered to state ‘F’ may be in the vicinity of the vessel in distress and be the first to react to the distress signal. Additionally, the migrants on board the vessel of distress have the nationality of state ‘G’ as well as of state ‘D’. Finally, the rescuing ship may decide to disembark those rescued on the shores of state ‘H’. In this scenario, no less than eight states have legal links to the incident and potentially have jurisdiction, depending on the details of the case. Engaging with and protecting migrants then becomes a multi-actor undertaking that requires clear and detailed legal guidance and effective coordination and cooperation. Without such a concerted effort, transitional criminal networks can continue to exploit the confusion to profit from smuggling people by sea, with little risk of being detected and prosecuted. Protection of migrants at sea, provides guidance on applying international legal principles in protecting migrants at sea. The obligation and responsibilities that arise in different jurisdictions are dissected in the context of both regular and irregular maritime migration flows and exploitation of migrants at sea.

Of course not all protection gaps are of political design. Indeed, many states are working concertedly and conscientiously to save lives at sea, and to protect and assist rescued persons thereafter. But while the law of the sea is a longstanding and entrenched body of international law, confusion in its interpretation and gaps in its application mean that lives are still lost. At the time of its conception in the late nineteenth century and beginning of the twentieth century, international maritime law did not foresee the phenomenon of maritime migration rhat would later become commonplace in the latter twentieth and early twenty-first centuries. The search and rescue obligations it prescribes, for example, assume that those retrieved are willing or able to return home countries. Yet many migrants rescued at sea , far from wanting to return home,  have risked their lives to leave their countries and reach another one, whether for political, economic or social reasons.

Whose responsibility rescued persons become in situations where they cannot be returned is not clearly addressed by international law. Even the notion of distress which triggers search and rescue obligations in international law, is one that was borne of another time. Traditionally understood to refer to situations in which vessels were at risk of capsizing due to poor whether conditions or mechanical failure, the term must now also be applied to situations in which people knowingly place themselves in precarious conditions, threatening their own lives in a bid to compel others to save them. Similarly, rules on interception and “hot pursuit” were established to address situations of piracy and slavery in the “middle passage” during the time of the trans-Atlantic slave trade, which involved manageably few people. They were not created with a view to responding to thousands of people stranded in international waters, as was the case in the Bay of Bengal in May 2015 to those who venture across the vast Pacific Ocean in the hope of safety reaching a small island State.

Against this background, it becomes clear that contemporary mass maritime migration has put the international legal framework under intense pressure and represents one of the most urgent and complex humanitarian challenges of our epoch[7]

Adding to these complexities in protection is the fact that, migrants are not only encountered at sea while they are in the process of migrating. They may also be encountered in situations where they are being exploited or otherwise harmed in ways that raise acute protection needs and trigger corresponding obligations for states. Global awareness has risen in recent years about the exploitation of fishers and seafarers – including the migrants among them – in the oceans of Asia, Africa, and Europe and in the International waters beyond.[8]

The situation in which migrants are encountered at sea call into play complex and often overlapping international legal obligations. The challenges of fulfilling these obligations are not arguments to suggest that such obligations are of fading relevance. Rather, they offer a foundation for and impetus to collectively sharpen relevant instruments in confronting the scale and scope of protection needs of migrants at sea today. There have been earlier attempts at regulating rescue at sea. First, it was left to the captain or any ship available nearby without the law actually placing particular responsibility to a state jurisdiction. It was in essence left at the discretion of available rescuers. Local attempts such as technical rope rescue had been used in which, a rescuer is often sent down the rope to the person who is in danger. A litter rescuer was also used. This device looks similar to a cage. It was being lowered down with ropes so that the rescuer can take the stranded person back to safety. [9] Initially, when in danger at sea, responsibility was left to any person or vessel available at the moment. The captain of any nearby ship could come to rescue. He had to rescue the people at distress and take them to a safe place. Such issues had been raised at previous sessions of Executive Committee at which the duty to rescue at sea was stressed. At the committee’s thirty first session, the representatives of certain major maritime states considered that, the view of certain developments, the issue of rescue at sea of migrants and asylum seekers, should be the subject of further consideration. It is in response to this suggestion that, various mechanisms where developed in order to rescue migrants at sea. Noteworthy are the efforts of the Italian Navy which began SAR Missions as early 2004 with the objective safe lives at sea.  Europe has recently witnessed an explosion of humanitarian efforts to assist stranded migrants in the Mediterranean and Aegean. These efforts began most famously in 2014 with the Italian operation “More Nostrum” and culminated in the establishment of numerous search and rescue NGOs, including the Migrant Offshore Aid Station (MOAS), Sea-Watch, Sea-Ey and Proactiva Open Arms. The work of these search-and-rescue organization-which focused on rescuing individuals stranded at sea before providing them with medical treatment and transporting them to safety in Southern Europe, was quickly propel into the political limelight.[10]

There are many international treaties o which the United States is a signatory that impose a duty on mariners to give assistance to persons in danger at sea. For example, in 1910, the Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage At Sea (Brussels Convention) was adopted. It was ratified by the United States and came into force in 1913. Article 11 of the Brussels Convention provides: “Every master is bound, so far as he can do so without serious danger to his vessel, her crew and passengers, to render assistance to everybody, even though an enemy, found at sea in danger of being lost.” The International Convention on Salvage (Salvage Convention) was adopted in 1989 and replaced the Brussels Convention. It was ratified by the United States in 1992 came into force in 1996.[11] The International Convention for the Safety of Life at Sea (SOLAS) was first adopted in 1914 in response to the Titanic disaster. It has been amended several times since. The version in effect today was adopted in 1974 and entered into force in 1980. The duty to rescue persons in danger at sea is now codified under US law at 46 U.S.C. 2304, The Salvage Act. Congress also enacted The Standby Act, which applies to a vessel involved in a marine casualty. The Standby Act imposes a duty on a vessel master or person in charge of a vessel that has been in a casualty to render necessary assistance to each individual affected to save that affected individual from danger caused by the marine casualty. The United Nations Convention on the Law of the Sea (UNCLOS) makes provisions for the rescue of migrants at sea. There are also the International Convention on Maritime Search and Rescue (SAR), Convention on Facilitation of International Maritime Traffic (FAL), Convention on the High Seas and others.[12]  This research aims at unraveling the effectiveness of these laws within the context of rescue of migrants at sea.

1.2. STATEMENT OF THE PROBLEM

In an attempt for international law to provide legal principles and guidance in the protection of migrants at sea, the effort has always encounter doubt as to whether states have extraterritorial obligation to search and rescue ships and migrants at sea.[13] More problems arises on the concept of the place of safety. This concept have not been clearly defined by international instruments and as such, it has not been understood by many. Hence, in protecting migrants at sea, there is usually doubt as to the place of safety where the migrants have to be kept. This raises a problem because, migrants at sea may be rescued but once they are not taken to a place of safety, the rescue is incomplete.[14] As a matter of fact, some states do not obey international law governing the rights of migrants at sea. There is always discrimination as especially when the migrants involved are not of the national of the state in rescue. Since many states do not want to risk their resources, they sometimes ignore their obligations under international law to provide protection to migrants at sea and take them to a safety place in time of trouble at sea. Thus, this research is also aimed at analyzing the legal obligations of states in the search and rescue of migrants at sea.

It is however worthy to note that, in carrying on the protection of migrants at sea, even those states which have jurisdiction are sometimes unable to react. This is because, in some cases, they may not have the required equipment and capacity to rescue a ship in danger. Therefore in such a scenario, migrants are liable to die or suffer material or physical injuries due to the inability of some coastal states to fulfill their obligations under international law. Thus, it might be relevant for international law to establish certain minimum standards in salvage operations so as to ensure protection of the interests of migrants in distress at sea. This research will therefore investigate the successes and challenges faced by states in discharging their responsibilities to migrants at sea under international law.

The efforts of international maritime law to ensure the protection of migrants at sea has also face a problem of contradiction with international human right laws. Maritime interception sometimes becomes a thread to the human rights of migrants at sea seeking protection. While international law does not provide a comprehensive definition of interception, the United Nations High Commissioner for Refugees has referred to interception as one of  the measures employed by states to prevent embarkation of persons on an international journey, and assert control of vessels where there are reasonable grounds to believe the vessel is transporting persons contrary to international or national maritime law[15] Where in relation to this, the persons or migrants at sea who do not have the required documentation, or valid permission to enter, they may be sent back. This raises a problem as to whether this maritime interception action contributes more or less to the protection of migrants at sea. Maritime interception usually affects negatively, innocent migrants at sea as they are usually left in a dangerous situation especially in a “turn back” decision taken by the maritime interception. This research will therefore investigate the contradictions between the various branches of law and demonstrate how the strict application of maritime interception policies may infringe on the rights of migrants in distress at sea.

1.3 RESEARCH QUESTIONS

This research is divided into a main and specific research questions, treated in turn.

• Main Research

The main research question is to appraise the protection available to migrants at sea under international law through the evaluation of the applicable legal framework.

      Specific research questions.

• What are the various mechanisms regulating migrants at sea?

• What are the various positive response of the International community towards the protection of migrants at sea?

• What are the challenges regarding migrant’s protection at sea?

• What policy recommendations may be advanced to improve the safety of migrants at sea?

1.4 RESEARCH OBJECTIVES

This research is divided into a main and specific research objectives, treated in turn.

• Main research objective.

The main objective is to appraise the protection available to migrants at sea under international law through the evaluation of the applicable legal framework.

1.4.1 Specific research objective.

• To analyze the concept of migrants and the various mechanisms regulating migrants at sea.
• To analyze the legal obligations of states in the search and rescue of migrants at sea.
• To analyze the effectiveness of the mechanisms in protecting migrants at sea.
• To analyze the policy recommendations that can be advanced to improve the safety of migrants at sea.

LAW PROJECT TOPICS WITH MATERIALS