ABSTRACT
The Arab Spring recently highlighted the problem of migrants at sea and the shortcomings of the international legal framework. Indeed, due to the social uprisings in Tunesia and Lybia, thousands of people tried to reach Europe by sea. This is a dangerous journey, as these asylum seekers often travel in unseaworthy vessels. As a result of the Arab Spring, it is estimated more than 1.500 people drowned or went missing while attempting to cross the Mediterranean to reach Europe in 2011.1 In 2012, UNHCR also expressed its concerns on the loss of life in maritime incidents in the Caribbean among people trying to escape – often in unseaworthy vessels – difficult conditions in Haiti following the 2010 earthquake.2 For example, in summer 2012, several persons lost their lives in Bahamian and US waters while trying to reach the shores of Florida. US Coast Guard data show that as of December 2011 over 900 people have been found on boats in rescue operations including some 652 Haitians, 146 Cubans and 111 people from the
Dominican Republic.3 These events are a reminder of the extremes that people in difficult situations sometimes resort to. Although no firm statistics exist, it is estimated that hundreds of deaths occur yearly as a result.4 The international community is aware that this problem has to be tackled as soon as possible in order to prevent further loss of life. This paper will first deal with the search and rescue obligations of flag States and their shipmasters as well as those of coastal States. Secondly, we will take a look at the problem of disembarkation. Indeed, as most rescued persons are asylum seekers, States are reluctant to let them disembark onto their own territory. Recently, there is a regional initiative for the Mediterranean Basin to solve the disembarkation problem. This will be discussed in a next part. Although States have indeed the duty to render assistance to persons in distress, their actual intent here is interdicting a vessel. As interdiction on the high seas is only possible in a limited number of cases, states have thus tried to ‘disguise’ these interdictions as rescues. The final part will thus focus on the question whether this practice can be considered to be an abuse of right under international law.
