From Passive to Functional: The Legal Protection of People in Distress at Sea

The Geneva Declaration on Human Rights at Sea notes that human rights law should apply at sea to the same extent and degree they apply on land. Truly but not entirely. The precedence before the European Court of Human Rights shows a permissive loose interpretation of human rights law anent maritime enforcement operations. Rightly so, considering the exceptional circumstances at sea. In the same vein, this paper illustrates a higher standard of applying human rights law due to the law of the sea ‘search and rescue’ regime for persons in distress at sea. So often, these persons are described as ‘boat people’ or ‘irregular migrants.’ This higher standard causes a paradigm shift from the passive to a functional interpretation of extraterritorial positive obligation beyond the current norm.

Accordingly, this paper analyses two relevant fields of international law – i.e., human rights law and law of the sea. It focuses mainly on the concept of jurisdiction and elucidates the higher threshold of interpreting human rights law at sea using the most recent case law on persons in distress. This paper demonstrates how the integration between the law of the sea and
human rights law ensures better protection of migrants at sea. However, it proposes that the relevant rules of the law of the sea constitute the jurisdictional link between States and persons in distress to prevent an interpretation of jurisdiction at sea that blurs the line between legality and morality.