Elizabeth Nwarueze is an international law practitioner and graduate of the Oxford BCL programme
Conflict, insurgency and increasing environmental and health crises recently engendered unprecedented internal and global displacements. The uncontrollable wave of migration defies the rigid travel bans and border closures as a result of which the UN Migration Agency declares it a “paradox not seen before in human history”. The trend of forced migration leading to displacement or even death exacerbates at sea mainly as a result of: (a) border control and pushbacks by states; and (b) weak international legal regime for the safety and rescue of persons at sea. Yet, as Hauer et al, 2019 cautioned, humanity cannot escape the backlash of rising sea levels and increased migration since over a billion people make up the global coastal population. The predictions are alarming and thus elevate the global discourse on international preparedness towards the predicted increase in migration by sea and the possibility of addressing the egregious human rights offences against migrants by International Law. This article will expose the weak regime of human protection at sea and suggest an obligatory approach to human rights at sea and the institution of a universal search and rescue (SAR) mechanism to properly address burgeoning challenges.
International Law and protection of persons at sea
Several human rights instruments and resolutions prescribe standards for the protection of persons. The founding instruments like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights among others, have influenced a considerable expansion to the body of rules governing the treatment of persons and are intrinsically considered jus cogens norms. However, adaptations of the human rights principles have found evolution depending on context. For international waters, the UNCLOS is the basic instrument which regulates the interaction among states and their flagged vessels at sea. As remarked by Judge Treves, 2010, being a state-state instrument, it undeniably focuses less on human rights and hardly creates definite obligations in this regard. As will be seen below, human rights receive scanty attention within the convention.
Rescue of persons and slavery in UNCLOS
Article 98 of the UNCLOS places a duty on states to require the master of a ship to immediately render assistance to any person in danger of being lost at sea or in case of collision. This rule is maintained from the preceding convention (1958 High Seas Convention). Article 99 on the other hand, repudiates slavery but only grants enforcement powers to the extent of boarding and inspecting the ship, leaving proper redress to the flag state (whose enthusiasm to sanction its vessels cannot be compelled in practice). Additionally, Article 73 prohibits imprisonment and corporal punishment for fisheries offences and this was reaffirmed in the MV Virginia G ITLOS Judgement. All these indicate an interest in human protection at sea save for obvious shortcomings viz: (a) the obligation to direct SAR in Article 98 is limited by states being able to do so “without serious danger to the ship, the crew or the passengers”, (b) the prohibition of slavery in Article 99 makes no real addition in practice since “slavery” as traditionally defined by the 1926 Slavery Convention hardly occurs presently and (c) article 110 only permits boarding on suspicion of slavery but gives no real enforcement powers to the discovering state.
These gaps in the UNCLOS necessitate the combined reading of the text with more specific treaties like the 1974 Safety of Life at Sea (SOLAS) Convention, the 1951 Refugee Convention, the 1979 Search and Rescue (SAR) Convention which for the first time, established global technical rules for search and rescue activities at sea, and the 2000 Migrant Smuggling Protocol. Granted that these instruments flesh out the hortatory provisions in the UNCLOS, they yet do not match the intensity of the human rights crises at sea. For instance, the key difference between the 1979 SAR Convention’s text and Article 98 of the UNCLOS is that the former mandates the master of the ship to record the reason for his refusal to rescue persons – simply providing a check to his discretion rather than imposing mandatory rescue. This is slightly improved by the 2004 SAR Amendment (1.3.2) which requires rescuing states to provide for initial medical or other needs to rescued persons and deliver them to a place of safety – a provision which only applies if the master exercises his discretion to rescue in the first place.
Another major drawback is that these supporting treaties do not apply to warships, naval auxiliaries or other vessels operated by the government. As such, states are immunised from any immediate responsibility of rescuing persons in distress. While the success of the SAR regime at sea remains debatable from one region to the other (Allianz 2019), the enthusiasm to safely admit persons rescued at sea is staggeringly low. With states determined not to incur the material and financial burden of internally maintaining refugees or migrants, the IMO Guidelines for Treatment of Persons Rescued at Sea which corresponds to Chapter 3 of the SAR 2004 Amendment are merely aspirational. These gaps, coupled with the uncertain character of the conventions bolster a wave of pushbacks, especially recently with heightened restrictions resulting from the Covid-19 Pandemic.
Regional and bilateral agreements
The European Border and Coast Guard Agency (Frontex) established in 2004 is mandated to manage and control the external borders of the European Union while also being competent to engage in search and rescue ‘in situations which may arise during border surveillance operations at sea’ (Regulation 2019/1896, article 3(1)(b)). Several regional treaties such as the 2001 Revised Treaty of Chaguaramas (Art 136) of the Caribbean Community and the Lome Charter of the African Union have created mechanisms to facilitate SAR activities by member states. However, in recent years pushbacks and deaths at sea have become very widespread. The Mediterranean sea, for instance, has been called the cemetery of Europe as border control is often given precedence over saving lives in practice. The UN Human Rights Committee has noted that in the last three years, thousands of migrants died at sea as a result of states’ failure to promptly respond to a distress call and dispatch a vessel, or to bring migrants to safety in several parts of the world, especially in the coast of Africa, Middle East, Europe and Asia. This represents an overall gloomy picture of the international response in this area.
As highlighted above, in the absence of obligatory legal norms, the creation, organisation and effectiveness of SAR regions and facilities depend on the technical strength of each SAR region as well as the political will of states to properly galvanise safety mechanisms for persons in distress at sea. It is proposed that a significant remedy to the issues identified above would depend on: (a) improving the normative texture both conceptually and in enforcement and (b) significantly unifying and democratising SAR operations in the global community.
First, adopting an obligatory normative standard would demand a review of the conventions. While it would be considerably difficult to broker a re-negotiation of the UNCLOS owing to disparate state interests, the SAR Convention which principally provides for rescue protocols embodies a unique amendment procedure that automatically applies amendments after a specified date unless objections are received from a required number of parties. Specifically, Chapter 3 of the SAR 1998 Amendment on the requirement for states to cooperate in establishing SAR services can be altered to make its establishment mandatory for every state, thereby transforming an obligation of conduct to cooperate into an obligation of result for the maintenance of SAR services. With respect to strengthening non-refoulement obligations, safer states can be incentivised to receive migrants for their protection; perhaps through global economic boost or reciprocal agreements by states involved.
On the enforcement front, unlike other offences in relation to which universal or direct enforcement is permitted under Part XV of the UNCLOS, human rights do not enjoy a similar position of priority. In the meantime, judicial pronouncement, elevating SAR and non-refoulement to a mandatory duty for states may beam the light on enforcement pathways hitherto unconsidered in UNCLOS. This happened in fisheries (AO, 2015) where the ITLOS elevated compliance with conservation practices as a measure of marine environmental protection. A long-term and more extensive solution might be to create a special tribunal for dealing with human rights abuses and refoulement concerns at sea. The feasibility of this approach would expose technical concerns like the characterisation of disputes, parties to sue and available remedies available for aggrieved parties. In any case, achieving this would improve awareness and access to justice for migrants and prevent states from perpetrating unchecked human rights violations.
Secondly, a global and institutionalised SAR mechanism with both finance, personnel and vessels contribution from states to be equitably spread across regions of the world would efficiently allay the fears of states which are unable to maintain sophisticated mechanisms and reduce the pressure on SAR-active states. A potential challenge to this proposed mechanism would be vested interests by states seeking to transform the global SAR institution into state border police, especially where states’ contributions reflect varying economic capacity or military strength. As a safeguard, it will be necessary to properly define the mandate and activities of this global SAR mechanism to solely search and rescue activities. One way to achieve this would be by establishing an independent global institution to oversee the operation of the SAR mechanism and ensure that is not aligned to any particular state. The overarching focus must be to prioritise saving lives across all regions thereby avoiding the partisanship and border policing that allegedly plague some existing regional mechanisms like Frontex.
Photo by Janosch Diggelmann on Unsplash
This is a great piece Liz. Very thought provoking.
What is your take on the UN Global Compact for safe, orderly and regular migration (2018), in terms of the extent to which it may influence State Practice in the protection of persons at sea?
Thanks for reading and for your interesting question. The UN Global Compact of 2018 which you speak of is great and is indeed, one of the attempts by the international community to take a cohesive position on migration (both on land and possibly at sea). However, while we have 164 countries adopting this compact, its ideals and provisions are not legally binding on States. It is just aspirational like the UNCLOS Article 99 [and even less so because the UNCLOS itself has binding character], as identified in my article. This leaves a broad range of possibilities: for instance, the UK upon adopting the Compact, decided that it would only adhere so long as it applies to “regular migrants”. Many other countries expectedly read it in similar manner.
This means that we are back to square 1, where States only grasp on ideals and aspirations but choose how to practically respond to the problems. This also validates my recommendations for obligatory framing of States’ responsibility for search and rescue and non-refoulement, and creation of more practical enforcement mechanisms or a universal body charged with managing the crisis.
Thanks again and I do hope my reply is helpful.