Abstract
AbstractFraming largescale migrant drownings as violations of international law has so far not been a straightforward task. The failures of doing so, both in scholarship and in activism, have often revealed important limitations of international law, and a form of rightlessness that is hard-wired in it. Through an assessment of arguments about drowning, framed in the vocabularies of the right to life, refugee law, the law of the sea, and international criminal law, difficulties surrounding the notion of jurisdiction persist: The maritime space has often functioned as a kind of “legal black hole.” Considering such difficulties, this Article suggests that shifting the focus from migrant rights to the civil and political rights of volunteers coming to the rescue, may help in closing the accountability gap. It thus seeks to articulate and conceptualize a form of maritime civil disobedience among rescue volunteers, which may provide the link for eliminating migrant rightlessness at sea.
Highlights
Framing largescale migrant drownings as violations of international law has so far not been a straightforward task
Through an assessment of arguments about drowning, framed in the vocabularies of the right to life, refugee law, the law of the sea, and international criminal law, difficulties surrounding the notion of jurisdiction persist: The maritime space has often functioned as a kind of “legal black hole.”
The problem here is essentially the same as the problem in the context of the right to life: It is one of jurisdiction. Prior to when they have accessed the jurisdiction of a state bound by refugee law, their claimed rights to international protection do not have a corresponding duty attached to a specific legal person
Summary
“rights” can be said to exist only when the right of person a corresponds to the duty of person or authority x. Rather than engaging the vast philosophical commentary following Hohfeld, this Article will more modestly seek to build on this basic insight about rights and privileges It seeks to show what scholars of global migration law can “do” with it.[27] As Schlag has argued, Hohfeld provides a useful frame of analysis for scholarship aiming to highlight the possibilities of law, and its limitations. Following the terminology introduced by Hohfeld, one observes that x may have the duty to “render assistance” to person a—by rescue at sea—in which case person a will have a right to be rescued.[29] Alternatively, depending on their location, x may have a “privilege” to decide whether to “render assistance” to person a or not In the latter case, person a has a correlative relation of “no-right” towards x.30. The following parts of this Article seek to answer the question, how is that transformation achieved? And, more precisely, what specific legal rights are involved?
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