Human Rights Adrift? Enabling the Disembarkation of Migrants to a Place of Safety in the Mediterranean
Forthcoming, Vol. X, Irish Yearbook of International Law
48 Pages Posted: 11 May 2017
Date Written: April 11, 2017
Europe is in the throes of a refugee emergency. To many it will conjure up the image of Alan Kurdî, the Syrian three-year-old whose little body washed to shore in Turkey on 2 September 2015. It is only one of the many human tragedies that take place amidst large flows of migrants trying to reach Europe over sea. An important challenge in this context concerns the safe and swift disembarkation of rescued and intercepted migrants to a place of safety. Failures to do so are a manifestation of coastal States being unable or unwilling to receive migrants on to their territory. Even though the 1974 Convention on the Safety of Life as Sea (SOLAS Convention) and the 1979 International Convention on Maritime Search and Rescue (SAR Convention) have been amended in 2004 with a view to remedying this failure, disembarkation remains an unresolved issue. Moreover, commercial vessels are increasingly unwilling to pick up migrants exactly because there is no clear guidance on where to disembark, which for them leads to financial loss, security risks, and the danger of being prosecuted for smuggling activities.
This article scrutinises the legal obligations of EU Member States regarding the disembarkation to a place of safety of migrants at sea – directly or indirectly through assisting vessels. It makes the normative claim that specific regional obligations in terms of disembarkation arise based on European asylum and human rights law beyond the ambit of the International Law of the Sea (LoS). It also questions the compatibility of the current EU border control and asylum acquis with the parameters set out in this normative claim. It concludes that EU law needs reform in which access, procedural guarantees and burden-sharing are key, a task that needs to be taken up in light of the current reform of the Common European Asylum System (CEAS).
Keywords: International Law of the Sea, Migrants, Refugees, disembarkation, Common European Asylum System
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