Dehumanising the human element of maritime migrant smuggling : a discussion on the application of human rights in the maritime sphere

Abstract

The principal subject of maritime migration and migrant smuggling is the individual. The backdrop against which this threat to maritime security should be perceived is that of human rights and humanitarian principles of protection. However, the dignity of the human person in maritime migrant smuggling has become nothing less than a tragedy characterised by its absence, a consequence of a battle between diametrically opposed interests, the current political climate and a failure of solidarity amongst States. There is a pressing need to balance conflicting rights and duties, where principles of State sovereignty come up against principles of protection; where jurisdictional notions clash with humanitarian considerations; and where the interests of States may not align with the mandates of international law. There is a glaring divide between what States want to do and what States are required to do under international law. These legal obligations play out against an increasingly politicised space: governments have to react to the expectations of the electorate. Overall, the context of maritime migration is impacted by a failure of solidarity among States, as evidenced within the European Union. Indeed, it is because of these opposing policy goals of the various actors involved that fragmentation of the law occurs. According to reports produced by the International Organization for Migration, 2018 has seen a decrease in arrivals to pre-2014 levels, with 113,145 migrant arrivals in the Mediterranean as of 22 December 2018. However, with over 2,000 deaths, the number of deceased persons proportionate to arrivals has increased. In September 2018, out of every 8 persons who made the crossing, 1 life was lost, due in large part to the considerably decreased search and rescue capacity in Mediterranean States. The issue of the existence of human rights principles within the sphere of maritime migration will be discussed in this context. It is contended that it is not the legal regime per se which is failing and that it is not the main reason behind the current state of affairs; the legal regime is as clear and predictable as is possible within the world of sovereign States whose main aim is to control access to their respective territories. The international legal regime depends upon the will of States to create a balance which produces a safe solution for migrants and an equitable one for States. Absent this political will, the focus on maritime migration will continue to focus on the reduction of arrivals which will inevitably mean the increase in the number of deaths and individuals deprived of their liberty in Libyan detention centres.