International Human Rights Law and the Law of the Seain the Context of Rescuing Coordination Dr. Seline Trevisanut Marie Curie Fellow (NILOS) – email@example.com Florence, 3 October 2012Europeanization and Externalization of Border Control and Migrant Detention in Italy and the EU
Overview of this presentation• Duty to render assistance• Search and rescue cooperation• SAR operations in the context of migration (border) control• Human rights at sea• Concluding Remarks
Duty to render assistanceArticle 98 LOSC•Every State shall require the master of a ship flying its flag, inso far as he can do so without serious danger to the ship, thecrew or the passengers:•(a) to render assistance to any person found at sea in dangerof being lost;•(b) to proceed with all possible speed to the rescue of personsin distress, if informed of their need of assistance, in so far assuch action may reasonably be expected of him
Search and rescue cooperation• Article 3(1)(9) of the SAR (as amended in 2004):Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ intended voyage, provided that releasing the master of the ship from the obligations does not further endanger the safety of life at sea.
The Party responsible for the search and rescueregion in which such assistance is rendered shallexercise primary responsibility for ensuring suchco-ordination and co-operation occurs, so thatsurvivors assisted are disembarked from theassisting ship and delivered to a place of safety,taking into account the particular circumstancesof the case and guidelines developed by theOrganisation. In these cases, the relevant Partiesshall arrange for such disembarkation to beeffective as soon as reasonably practicable.
• IMO Maritime Safety Committee (MSC) Guidelines (2004) – “place of safety” means a location where the rescue operations can be considered as completed – the state in whose SAR zone the operation took place has the duty to provide or, at least, to secure a place of safety for the rescued persons• IMO Facilitation Committee (FAL) “Principles relating to administrative procedures for disembarking persons rescued at sea” (2009)
SAR operations in the context of migration (border) control• Irradiation of sovereignty on the sea• Two kinds of maritime borders: – Delimitation – Functional maritime frontier• Functional jurisdiction at sea
Human rights at sea• Xhavara et al. v. Italy and Albania, Appl. No. 39473/98, Admissibility Decision of 11 January 2001the mere existence of an agreement conferring enforcement powers to a state is sufficient for proving the exercise of jurisdiction.
• Medvedyev et al. v. France, Appl. No. 3394/03, Judgment of 29 March 2010French authorities exercised an effective, continuous and uninterrupted control on the vessel (§ 67)
• Hirsi Jamaa and others v. Italy, Application No. 27765/09, Judgement of 23 February 2012Italy cannot circumvent its “jurisdiction” under the Convention by describing the events at issue as rescue operations on the high seas. In particular, the Court cannot subscribe to the Government’s argument that Italy was not responsible for the fate of the applicants on account of the allegedly minimal control exercised by the authorities over the parties concerned at the material time (§ 79).
Human rights potentially violated in SAR operations• Right to emigrate• Right to seek asylum• Prohibition of torture and other inhumane and degrading treatments• Principle of non refoulement• Right to freedom and security• Right to an effective remedy
Concluding remarks• Limits of Hirsi case law• UNHCR, IMO, Rescue at Sea, A Guide to principles and practice as applied to migrants and refugees (2007)• Complementarity between law of the sea and international human rights