Adrift in international law: towards a place of safety for sea migrants

Abstract

Maritime search and rescue of sea migrants embarked on irregular crossings raises complex and multifaceted considerations that exceed the search and rescue operational system originally designed to respond to situations of distress following accidents at sea and to the needs of maritime traffic. Singular approaches to search and rescue in the context of irregular crossings and differing biases shaped by the priorities sought at sea inevitably result in differing constructions of specific concepts key to define the contours of maritime search and rescue obligations. This highlights the need to scrutinise the maritime search and rescue international legal framework to assess its potential to adequately foster considerations of humanity. This thesis takes a firm stance on the urgent need to safeguard and advance considerations of humanity in the maritime search and rescue international legal framework in the context of irregular crossings. This thesis aims at assessing whether the International Convention on Maritime Search and Rescue, 1979, as amended (SAR Convention) can foster an integrating reading grounded in international human rights law and international refugee law considerations. Crucially, it explores this interpretative approach with regards to the concepts of persons in distress and delivery to a place of safety, that respectively mark the beginning and the end of a search and rescue operation, invoking considerations of humanity. Ultimately, this thesis scrutinises whether the search and rescue system can be more responsive to the needs of sea migrants. To this end, this thesis undertakes an interpretative legal reasoning that is underpinned by the vulnerability reasoning, underscoring the specific needs at stake among sea migrants and calling for a mechanism of redress at the very stage of the interpretative process. This interpretative reasoning draws on the principle of systemic integration. This guiding interpretative mechanism is studied and its functionality assessed to invoke international human rights law and international refugee law considerations to better address the specific needs of sea migrants. The interpretative reasoning proposed here strives to contribute to the on-going discussion for a common understanding of the notions of persons in distress and place of safety. It fundamentally seeks to propose an innovative approach to the reading of this maritime legal instrument that addresses the specific needs among sea migrants and enhances considerations of humanity for a more responsive approach to maritime search and rescue in the context of irregular crossings.

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ORCID for Andrew Serdy: orcid.org/0000-0002-4727-6536

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