The rising sea level, border restrictions, and movement: Can International Law still protect those at sea

Insurgency, conflict, and growing health and environmental crises have recently triggered unprecedented local and global displacements. The uncontrollable tsunami of migrants has escaped the strict prohibitions on traveling and closures of borders because of this, which is why the UN Migration Agency declares it a “paradox not seen before in human history.” The pattern of forced migration that leads to death or displacement can be exacerbated in the sea due to the combination of (a) border control and pushbacks by governments and (b) insufficient international legal framework to ensure the safety and protection of those at sea. But according to Hauer and co. 2019 warned that humanity couldn’t be insulated from the harmful effects of rising seas and a rise in migration, as more than a billion people constitute the global population living in coastal areas. The alarming forecasts elevate the international debate on readiness for the expected growth in sea-based migration and the likelihood of dealing with the most grave human rights violations against migrants in International Law. This article will highlight the weak human rights system of protection at sea and recommend a mandatory approach to protecting human rights at sea and creating a global SAR (SAR) mechanism that can effectively tackle the ever-growing problems.

International Law and Protection of sea-going vessels

Several documents and resolutions on human rights set guidelines for protecting individuals. The foundational instruments, like those of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Civil and Political Rights, among others ones, have contributed to an extensive expansion of the rules that govern the treatment of individuals and are considered the norms of jus cogens. However, modifications to the human rights concepts have seen variations based on their context. The UNCLOS is the most fundamental instrument for international waters to regulate the interactions between flagged states and state vessels operating at sea. As Judge Treves noted in 2010, a treaty between states indicates that it focuses less on human rights and hardly makes clear obligations regarding human rights. The following hum shows that requests are not considered much in the Convention.

Persons’ rescue or slavery UNCLOS

Article 98 in the UNCLOS gives a legal obligation to states to require that the master of a vessel promptly assist any person who may be drowned at sea or even in the event of a collision. This requirement was imposed by the earlier Convention (1958 High Seas Convention). Article 99, however, is adamant against slavery. It only confers enforcement powers in the form of boarding and inspecting a ship but leaves the proper recourse in the hands of the flag state (whose desire to regulate its vessels cannot be enforced in the real world). In addition, Article 73 prohibits imprisonment and corporal punishment for fisheries violations and was reiterated during the MV Virginia G ITLOS Decision. All of these point to the importance of protecting human beings at sea, notwithstanding apparent flaws, namely: (a) the obligation to direct SAR under Article 98 is limited by states being able to perform this ” without serious danger to the ship, the crew or the passengers,” (b) the prohibition against enslaved people in Article 99 makes no real difference in the real world as “slavery” as traditionally defined in the 1926 Slavery Convention is not a common practice today. (c) article 110 allows boarding in case of suspicion of slavery, but it grants no legal enforcement authority to the state of discovery.

Treaties that support it

These lapses in the UNCLOS require the combining interpretation of the document in conjunction with more specific treaties such as those of the year 1974 such as the Safety of Life at Sea (SOLAS) Convention, the 1951 Refugee Convention, the 1979 Search, and Rescue (SAR) Convention that in the very first instance set out global technical standards for the conduct of search and rescue on the sea, and the 2000 Migrant Smuggling Protocol. Although these treaties provide the hortatory provisions contained in the UNCLOS, they do not reflect the severity of the current human rights violations on the sea. For instance, the main difference between the 1979 Convention’s text and the UNCLOS’s Article 98 in the UNCLOS is that the latter requires the captain of the vessel to document the reasons for his decision not to save people – essentially giving him a nudge to exercise his discretion, rather than mandating the requirement of rescue. The text is slightly modified by the 2004 SAR Amendment (1.3.2), which requires the states that rescuers are required to provide the medical and other requirements of initial rescue to those rescued and transport the person to a safe location. This condition only applies when the captain exercises discretion to save the first instance.

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