Migrants at Sea: An Intersection between Moral and Legal Obligations

Mallory, Conall (2015) Migrants at Sea: An Intersection between Moral and Legal Obligations. In: Law and Society Association Annual Conference 2015, 28-31 May 2015, Seattle, Washington.

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Abstract

An obligation to render assistance to those who are in distress at sea has long been recognized in international maritime law. Recent developments in international human rights law have also resulted in a greater understanding of states' extraterritorial obligations which have the capability to extend protection to migrants in distress at sea. These human rights obligations are most commonly defined by whether the relevant state exercises 'jurisdiction' over the area, person or event in question. When such jurisdiction is not present, states are relieved of any human rights obligations to take action or for injury caused by their inaction. Yet in many instances they will still feel compelled to act through some form of a latent moral obligation. Often this moral obligation arises out of a desire to assist and protect the world's most vulnerable populations. This paper will explore the dichotomy between these obligations with regard to the perilous position of migrants in the Mediterranean Sea. Specifically it seeks to find the dividing line between where a state's international legal obligations end and where their moral obligations commence.
Through analysis of selected jurisprudence concerning the position of migrants at sea, decisions of the main human rights treaty monitoring bodies and with a particular focus on the European Court of Human Rights, this paper will attempt to identify the limits of a state's international legal obligations. Consideration will be given to when these obligations arise, how far they extend, what rights and protections are available under them and the extent to which there is room for further interpretation. The result of this will be an identification of the limits of law's promise in relation to migrants at sea.
Beyond the reach of legal obligations lie loosely crafted moral obligations which compel states to assist those persons most in need. Influenced by global policy, security and economics, and characterized by inconsistency in practice, the limits of a state's moral obligations are vastly more uncertain. Through analysis of state efforts, actions and declarations this paper will therefore deconstruct a pattern for when a state's moral obligations will compel them to act with regard to migrants at sea.
There exists a grey area between the international legal obligations incumbent on states and the actions which they are willing to take to fulfil their perceived moral obligations. As migrants at sea are most vulnerable within this disconnect a proposal will be made for how this gap can be bridged. The result of this analysis will be a clearer identification of the limits of law's promise in the Global North, particularly towards the most vulnerable populations leaving the Global South.

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