to the blurring of the line between rescue at sea and maritime interception as
discussed by Miltner (2006). While the latter had been defined as “measures applied
by a State, outside its national territory, in order to prevent, interrupt, or stop the
movement of persons without the required documentation crossing international
borders by land, air or sea, and making their way to the country of prospective
destination”,
13 the extraterritoriality component has been removed from the definition
14
—and thus interception might take place in a State’s territory, for example by
denying access irregular migrants to its ports—while a humanitarian element has
been awkwardly added—as interceptions might prevent people from risking their
lives at sea—. Nevertheless, the principles behind both institutions remain intrinsically divergent as rescue at sea is basically about human rights protection while
maritime interception prioritizes national security.
For our purposes, the distinction between rescue at sea and maritime interception
is relevant because the latter can only be undertaken by State authorities. Commercial ships do not engage in maritime control tactics. The rescue operation might end
up serving this purpose, though, if the relevant RCC indicates the saviours to deliver
the rescued people to a place which has been determined in accordance with such
strategy. The question is, then, whether the rescue mission is accomplished if
migrants are not delivered to a place of safety in the terms of the applicable
human rights instruments as discussed in the next section.
3 Human Rights Protection at Sea
In the light of the events unfolding in many countries, it is not redundant to remind
that migrants are human beings. As such, they are entitled to human rights protection. To this end, and as already mentioned, international courts have already
confirmed that human rights conventions apply at high seas provided that the ship
flies the flag of a signatory country. Hence, ongoing private—as well as publicowned vessels are within the international human rights framework, even when at
high seas.
Human rights protection does not oppose migratory control tactics provided that
such a protection is embedded in the strategy. Maritime interception is not an
exception in this regard. The abovementioned rulings of the Inter-American Commission on Human Rights and the ECtHR condemn both the United States and Italy
because intercepted migrants were pushed back without an individual screening that
could determine whether they were entitled to human rights protection or not. While
13 UNHCR Executive Committee of the High Commissioner’s Program, Interception of Asylum
Seekers and Refugees: the International Framework and Recommendations for a Comprehensive
Approach, EC/50/SC/CRP.17 (June 9, 2000), at 10.
14 UNHCR Executive Committee of the High Commissioner’s Program, Conclusion on Protection
Safeguards in Interception Measures. No 97 (LIV) (October 10, 2003).
82
L. Carballo Piñeiro
discussed by Miltner (2006). While the latter had been defined as “measures applied
by a State, outside its national territory, in order to prevent, interrupt, or stop the
movement of persons without the required documentation crossing international
borders by land, air or sea, and making their way to the country of prospective
destination”,
13 the extraterritoriality component has been removed from the definition
14
—and thus interception might take place in a State’s territory, for example by
denying access irregular migrants to its ports—while a humanitarian element has
been awkwardly added—as interceptions might prevent people from risking their
lives at sea—. Nevertheless, the principles behind both institutions remain intrinsically divergent as rescue at sea is basically about human rights protection while
maritime interception prioritizes national security.
For our purposes, the distinction between rescue at sea and maritime interception
is relevant because the latter can only be undertaken by State authorities. Commercial ships do not engage in maritime control tactics. The rescue operation might end
up serving this purpose, though, if the relevant RCC indicates the saviours to deliver
the rescued people to a place which has been determined in accordance with such
strategy. The question is, then, whether the rescue mission is accomplished if
migrants are not delivered to a place of safety in the terms of the applicable
human rights instruments as discussed in the next section.
3 Human Rights Protection at Sea
In the light of the events unfolding in many countries, it is not redundant to remind
that migrants are human beings. As such, they are entitled to human rights protection. To this end, and as already mentioned, international courts have already
confirmed that human rights conventions apply at high seas provided that the ship
flies the flag of a signatory country. Hence, ongoing private—as well as publicowned vessels are within the international human rights framework, even when at
high seas.
Human rights protection does not oppose migratory control tactics provided that
such a protection is embedded in the strategy. Maritime interception is not an
exception in this regard. The abovementioned rulings of the Inter-American Commission on Human Rights and the ECtHR condemn both the United States and Italy
because intercepted migrants were pushed back without an individual screening that
could determine whether they were entitled to human rights protection or not. While
13 UNHCR Executive Committee of the High Commissioner’s Program, Interception of Asylum
Seekers and Refugees: the International Framework and Recommendations for a Comprehensive
Approach, EC/50/SC/CRP.17 (June 9, 2000), at 10.
14 UNHCR Executive Committee of the High Commissioner’s Program, Conclusion on Protection
Safeguards in Interception Measures. No 97 (LIV) (October 10, 2003).
82
L. Carballo Piñeiro