ECHR. Articles 6 and 7 of the 1966 International Covenant on Civil and Political
Rights, the 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment or the 1969 Organization of African Unity
(OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa
are all instrumental in supporting the obligation of not to return a person where there
are substantial grounds for believing that there is a real risk of irreparable harm. It is
needless to highlight that the risks of infringing these rights have increased with the
policy of outsourcing migration management, by making the authorities of third
countries to intercept migrants or accept them back before reaching the European
coast (Andersson 2016).
In general, only ratifying States are obliged by the abovementioned instruments.
However, some human rights such as the prohibition of torture and inhuman and
degrading treatment are enshrined in customary international law and thus all States
are responsible for their respect. The question is, nevertheless, whether maritime
professionals are to be held accountable for infringement of these rights as well,
i.e. whether they can be held responsible for not assisting migrants in distress,
including disembarking them at a place of safety.
From a public international perspective and the abovementioned human rights
framework, an answer in the negative is right to the extent that international
instruments are primarily directed towards States and not private persons, setting
aside some exceptional cases. However, States are obliged to incorporate the said
human rights protection in their legislation and this obligation reaches private
persons, of course. The correct answer is, thus, that maritime professionals might
be held accountable in accordance with a national criminal law if they do not comply
with basic human rights. In this vein, many jurisdictions construe a duty to rescue
that it is more or less restrictive depending on the tradition to which the applicable
law on board ascribes. More specifically, failures to provide assistance might be tried
as crimes within the jurisdiction of the flag State, including if rescue implies
returning a person to a place where his/her life is in danger. Nevertheless, it does
not seem as States are willing to enforce criminal law in view of the difficulties in
proving lack of legal compliance with the duty to rescue.
4 Criminalisation of Maritime Professionals
Compliance with the duty to rescue might become an issue for maritime professionals, but for the very reason of trying to comply with it as they may face charges
for migration facilitation. The risk of being taken for smugglers has dramatically
increased for seafarers and fishermen in last times. Indeed, and along with other
instances in which they are criminalised, this is becoming an occupational hazard.
As a matter of fact, the significant increase in (in)voluntary migrants has been
accompanied by a flourishing industry willing to take advantage of people’s desperation and the hardening of the borders. The harder the border, the more pressing the
need to resort to facilitation services. In particular, maritime migration has become
Occupational Hazards in the Light of the Maritime Migration Challenge
85
Rights, the 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment or the 1969 Organization of African Unity
(OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa
are all instrumental in supporting the obligation of not to return a person where there
are substantial grounds for believing that there is a real risk of irreparable harm. It is
needless to highlight that the risks of infringing these rights have increased with the
policy of outsourcing migration management, by making the authorities of third
countries to intercept migrants or accept them back before reaching the European
coast (Andersson 2016).
In general, only ratifying States are obliged by the abovementioned instruments.
However, some human rights such as the prohibition of torture and inhuman and
degrading treatment are enshrined in customary international law and thus all States
are responsible for their respect. The question is, nevertheless, whether maritime
professionals are to be held accountable for infringement of these rights as well,
i.e. whether they can be held responsible for not assisting migrants in distress,
including disembarking them at a place of safety.
From a public international perspective and the abovementioned human rights
framework, an answer in the negative is right to the extent that international
instruments are primarily directed towards States and not private persons, setting
aside some exceptional cases. However, States are obliged to incorporate the said
human rights protection in their legislation and this obligation reaches private
persons, of course. The correct answer is, thus, that maritime professionals might
be held accountable in accordance with a national criminal law if they do not comply
with basic human rights. In this vein, many jurisdictions construe a duty to rescue
that it is more or less restrictive depending on the tradition to which the applicable
law on board ascribes. More specifically, failures to provide assistance might be tried
as crimes within the jurisdiction of the flag State, including if rescue implies
returning a person to a place where his/her life is in danger. Nevertheless, it does
not seem as States are willing to enforce criminal law in view of the difficulties in
proving lack of legal compliance with the duty to rescue.
4 Criminalisation of Maritime Professionals
Compliance with the duty to rescue might become an issue for maritime professionals, but for the very reason of trying to comply with it as they may face charges
for migration facilitation. The risk of being taken for smugglers has dramatically
increased for seafarers and fishermen in last times. Indeed, and along with other
instances in which they are criminalised, this is becoming an occupational hazard.
As a matter of fact, the significant increase in (in)voluntary migrants has been
accompanied by a flourishing industry willing to take advantage of people’s desperation and the hardening of the borders. The harder the border, the more pressing the
need to resort to facilitation services. In particular, maritime migration has become
Occupational Hazards in the Light of the Maritime Migration Challenge
85