Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?

Abstract

Although migration is a transnational phenomenon involving a plurality of states, the state of departure is often unwilling/unable to offer protection. Receiving/transit states can refrain from engaging with the problem until migrants have already entered their territory. With high seas, this can result in the deaths of people taking the risk of travelling to a new place. The article argues that states have a duty to offer (some) protection even when migrants are not in their territory, based on human rights’ positive effect and the principle of due diligence. Because of the transnational nature of migration, all involved states have the responsibility to offer protection. This may lead to concurrent state liability for failure to protect. The duty to protect may extend to the high seas, even when the traditional links for the establishment of jurisdiction are absent. The duty is not unlimited, it needs to prevail over other considerations.

Keywords: human rights, extraterritoriality, migration, refugee protection, duty to protect, due diligence, concurrent state responsibility, high seas