1. Introduction
4,054 5,143 3,139 2,299 1,885 1,148
These numbers symbolize the story of thousands of migrants who perished in the Mediterranean region from 2015 to 2020.Footnote 1 The year 2015 is often referred to as the ‘beginning’ of the European migration crisis as a result of growing public concern in the face of loss of life and a broader ‘international moral panic’ with the number of migrants reaching Europe at over one million in that year alone.Footnote 2 These numbers represent the people who lost their life in the search for a safe(r) haven by attempting a perilous sea journey in order to reach European soil. They primarily represent a failure of the European policy response and, indirectly also, reflect the fragmented nature of the international legal order, wherein the duty to render assistance to life at sea is subordinated to more ‘sovereigntist’ concerns, prioritizing the securitization of state borders. The above numbers, which capture only a small part of the total maritime deaths occurring across the world, are also a striking reminder of the dire need to re-assess the rights of persons at sea.
A collective failure to rescue migrants at sea has become an acute problem, not only in terms of the variety of legal issues that this failure raises, but more particularly in terms of the human cost and the spiralling loss of life. For this reason, recognizing a right to be rescued at sea has never been more pressing. At the time of writing, the UN Human Rights Committee (HRC or Committee) has delivered two novel decisions in A.S. and Others v. Italy,Footnote 3 and A.S. and Others v. Malta,Footnote 4 confirming that the right to life, under Article 6 of the International Covenant on Civil and Political Rights (ICCPR),Footnote 5 applies in the conduct of maritime search and rescue (SAR) operations and extends beyond a strict interpretation of territorial jurisdiction. The two decisions arrived on 27 January 2021, striking a ground-breaking moment for the history of human rights and analogously for the rights of migrants, as the Committee found a jurisdictional nexus between the persons in distress (right-holders) and the states who co-ordinated the rescue incident (duty-bearers). Remarkably Hélène Tigroudja, in her concurring opinion, admitted that the majority’s views are an attempt to address ‘maritime legal black holes’ which give substance to an emerging ‘right to be rescued at sea’.Footnote 6 Manifestly, such explicit reference is a first step towards the formal recognition of the existence of a right to be rescued at sea in international law.
Undoubtedly, human rights are a work-in-progress. This is especially so as new challenges, emerging issues in the international community as well as changing patterns should be systematically addressed, migration being one of them. Indeed, irregular migration by sea put a spotlight on the protection of human rights at sea which has been a challenge from the outset of the European migration crisis. This study argues for the existence of a ‘right to be rescued at sea’ within international law treaties and customary international law, specifically emanating from the normative contours of the law of the sea and the international human rights law framework taken together, finding voice in the duty to render assistance at sea and the right to life respectively. Alas, it has not yet been recognized in any international legal instrument. This is not surprising, since it is widely accepted that the formal human rights treaties may well not capture all those plausible rights that deserve to be counted as human rights today (in the legal sense).Footnote 7 Hence, there is no fixed canon of human rights, as rights are constantly developed through treaty interpretation, for instance,Footnote 8 to protect human interests at stake.
By delving into a doctrinal and judicial discourse on rights, the article goes back to the beginning of the twentieth century, to an exploration of the analytical framework of jural relations presented by the American jurist Wesley Newcomb Hohfeld.Footnote 9 The Hohfeldian rights-model provides a sui generis theory, which is a rich lode for analysis of international legal relationships. Footnote 10 Arguably, any legal analysis on the recognition of rights should start by reference to Hohfeld’s scheme as it stands to be the backbone to all major contemporary jurisprudential discussions.Footnote 11 By drawing upon Hohfeld’s correlativity scheme for delineating the legal relationship between rights and duties, the article demonstrates that a right to be rescued at sea ought to be recognized as the logical correlative of the duty to render assistance at sea.Footnote 12
In turn, the study considers the theoretical underpinnings of how rights and duties correlate, as it is often tacit to assume that rights imply duties, but this also begs the question of whether duties (the duty to rescue in this case)Footnote 13 can equally confer rights. Certainly, such a discussion moves away from Hohfeld’s definitional framework to an empirical analysis which examines the conceptual parameters of duties in specific circumstances; Hohfeld’s philosophy was not about identifying the duty-bearers or the right-holders, but on delineating their relational character. In this way, the subject-matter shifts to the specification of a duty-bearer, which on its own can act as the determining factor for the establishment of rights. In fact, this enquiry presents one of the most vital objections to the existence of correlative rights, the so-called ‘claimability objection’, articulated most notably by Onora O’Neill. Simplified, the objection is concerned with the identification of specific duty-bearers, maintaining that if the duty-bearers are unidentified, then rights are unclaimable vis-à-vis being not rights at all.Footnote 14 This Article will strive to show that claimability is an unnecessary condition for the existence of rights, while not downplaying its practical significance for their subsequent realization.Footnote 15 In particular, diverse accounts from contemporary rights theorists like John Tasioulas, Kathryn Sikkink, Amartya Sen, Seyla Benhabib, and Jeremy Waldron provide distinctive and detailed philosophical responses to these recurrent questions by employing a more robust account of human rights attention to the underlying interests and values they protect.
The title of the article signifies an understanding that will recognize a right to be rescued at sea. It is imperative here to briefly explain what I mean by recognition to avoid any potential fallacies. By ‘recognizing’, I understand that recognition can take many forms and, indeed, that there are multiple phases before a human right (any norm) acquires legally binding status.Footnote 16 Relatedly, the use of the terms recognizing or proclaiming a ‘new’ right concerns the discovery (not the creation) of a new reality in light of evolving challenges in human rights protection in the specific context of jurisdiction in the maritime space. In this way, the recognition of a right to be rescued at sea does not have to be an introduction of a new right per se but can be, rather, derived from already well-established human rights. In this sense, the adjective ‘new’ is employed in order to denote that its existence as a normative value or moral rights has not yet been recognized. Against this understanding, I view human rights as rights, which are inherent in our nature, that are supposedly held by all human beings simply in virtue of their humanity.Footnote 17
The article has a threefold ambition. The first is to introduce the idea of a right to be rescued at sea by building upon Hohfeld’s correlativity scheme, which provides courts with an analytical tool to support a normative argument that structures a right to be rescued at sea within the existing right to life. The second considers alternative avenues, which will justify its recognition, in contrast to adopting a framework which arguably misses the intrinsic nature of rights, in which human rights exist prior to and independently of their ability to be claimed. In this way, it shows that the existence of a right to be rescued at sea is verified as a mere matter of a Hohfeldian analysis and escapes any empirical denunciations at the stage of its identification as a norm. The third is to move beyond the philosophical debates to showcase the ways in which this right can become fully recognized (legally binding) by employing interpretative techniques (in particular, advancing from a teleological perspective).Footnote 18 Ergo, Hohfeld’s correlativity scheme acts as a means of realizing the human rights-based approach of this article in the pursuit to advance norms in situations where the status of an individual is under threat.Footnote 19
Before proceeding, a caveat is necessary. Whilst the following analysis makes a clear-cut case for the recognition of a right to be rescued at sea, my major concern is to theoretically reconceptualize this right and ultimately, demonstrate how theory can advance practice to offer a more robust protection to imperilled migrants. Hence, the analysis will seem to leave open difficult questions, including: What will be the implications of such recognition, in terms of state responsibility and attribution, if the right is not complied with? How will jurisdiction be determined between rescued, non-rescued, and about-to-be rescued persons and a state? Such enquiry though, goes fundamentally beyond the ambit of this article. Whilst acknowledging that these issues are critical, it would be impossible to engage fully with the question of jurisdiction and the extraterritorial scope of human rights obligations in this study. It is my purpose to examine how a right to be rescued at sea will operate in practice elsewhere.
2. Hohfeld’s scheme of relations outlined and represented
Hohfeld espouses a theory of legal relations that was mainly set out over the course of two seminal articles: ‘Fundamental Legal Relations as Applied in Judicial Reasoning’ in 1913 and 1917.Footnote 20 Although his work is over 100 years old, it still remains persuasive, and is undoubtedly useful in present-day legal thought and in understanding legal relationships.Footnote 21 An important thing to grasp from the title of his work ‘… as Applied in Judicial Reasoning’, is that it captures the true character of his scheme, that is, fundamental legal conceptions not in the abstract, but utilized especially in the solving of ‘practical, every-day problems of the law’.Footnote 22 In order to gain a clearer understanding of Hohfeld’s project, it is a useful precursor to realize and at the same time accept that his framework is of a definitional nature providing a neutral model of rights, rather than an attempt to work out an empirical analysis.Footnote 23
By observing the vexed meaning of the word ‘right’ and likewise, its wide-spanning inclusiveness covering all legal relations, Hohfeld wished to limit its ‘chameleon-hued’ character to a definite and appropriate meaning, as the word rested on uncertainty, often causing ambiguities and misuse when applied in judicial reasoning.Footnote 24 As a result, he espouses that legal rights can be divided into four groups of legal relations according to type, which he labelled as ‘incidents’: claim-right (or, simply, right), privilege, power, and immunity.Footnote 25 Each incident is said to have a specific, unique opposite and a specific, unique correlative. As such the principal aim of separating and narrowly defining these four legal interests into distinct individual forms was to provide a tool for the analysis of legal problems in which rights and duties were to be distributed; a preliminary step to the solving of legal problems.Footnote 26 A reformulation of the Hohfeldian scheme of legal relations is provided in Tables 1 and 2.
Jural Correlatives
Jural Opposites
The American jurist expounded a matrix of normative positions that can be used to analyse any rights’ relationship. The above Hohfeldian tables anatomize the interaction of eight legal positions by laying down various jural relations in a convenient scheme that emphasizes their correlativity and antithesis, showcasing ‘accurate thought’ in relation to basic legal ideas, which Hohfeld perceives as vital in judicial reasoning.Footnote 27 For example, looking at the above tables, one of the four meanings Hohfeld gives to the term ‘right’ is power and this would accordingly mean: for every power in X, there must be a correlative liability in Y. For every power in X, there must be an opposite disability in Y (and so on). Simplified, this would mean that a jural correlative is what others must have (liability) if one has a legally protected interest (power) and accordingly a jural opposite is what one cannot have (disability) if one has a legally protected interest (power). The word ‘interest’ employed refers to the object protected by the right;Footnote 28 for avoiding any misunderstanding, it should be noted that the Hohfeldian schema applies to all interests the law might seek to protect – as such, the four normative positions elaborated above (claim-right, privilege, power, immunity) are all legal interests. Hence, the term ‘interest’ (of the individual) will be often employed herein, meaning that it can carry any of the four meanings Hohfeld laid down in expounding the meaning of ‘right’, depending on the kind of interest a person has in a particular legal action.Footnote 29
Andrew Halpin, a proponent of Hohfeld’s theory, claims that the actual state of any normative system, moral or legal, can best be represented by an analysis of correlativity found within Hohfeld’s analytical scheme.Footnote 30 Looking at the first pair of his jural correlatives, right-duty, Hohfeld sought to articulate a narrow and proper meaning for the word ‘right’ with reference to its correlative relation, duty, and he used the term ‘claim-right’, which signifies that a right is an affirmative claim against another.Footnote 31 Through the remainder of the article, the word ‘right’ shall be employed with the Hohfeldian parlance – claim – according to which it correlates with a duty of equivalent content that is owed to a right-bearer.Footnote 32 What Hohfeld explicitly refused to do was to provide a definition or to elucidate any of his eight positions as he treats them as sui generis, inherently relational and as pure relations of form.Footnote 33
Taking into a closer examination the pair ‘right-duty’, Hohfeld gave the example that ‘if X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty towards X to stay off the place’.Footnote 34 Put simply, Hohfeld’s jural correlative right – duty assumes that if X has a claim, then Y has a correlating duty. The reverse is also true according to this correlative axiom: if X has a duty, then Y has a claim.Footnote 35 Based on the Hohfeldian model, it is submitted that the right to life and the duty to render assistance at sea, fall under the first of the four jural correlatives, right-duty, and do not engage the other forms of legal relations.
2.1 Jural correlativity theory
Having introduced the Hohfeldian scheme of legal positions and considered the importance of precise and clear language in the understanding of legal relationships, this section turns to examine how this correlativity works and specifically looks at the most famous Hohfeldian dyad: right-duty. It is important to acknowledge at this instance that the correlativity laid down by Hohfeld portrayed solely the pairs formed from each normative position; he did not consider further how rights and duties behave in the legal system.Footnote 36 As will be argued further below, such an analysis should be considered thereafter and does not in any way impact the identification of correlative relations.
Initially, it is operative to clarify the meaning of the word correlativity. The terminology employed by Hohfeld, ‘correlative’, plainly means that the existence of one term, right, assumes the existence of the other term, duty, and vice versa. Therefore, correlativity essentially has to do with what one party, be it a state or a natural person, can expect of another. For instance, we can trace how this correlativity between a right and a duty behaves in the legal system by taking the following example: the state has a duty to abstain from arbitrarily killing individuals in their jurisdiction and accordingly the individual has the correlative right to life.Footnote 37 Interestingly, Morss, who has convincingly demonstrated the applicability of Hohfeld’s scheme to international law, uniquely explains: ‘Hohfeldian legal relationships are like the bonds between amino acids in the structure of DNA – pairs match up in specific ways, and the multiple combinations of the simple basic units suffice to generate immensely various forms of life’.Footnote 38
The correlativity between rights and duties can be traced back to the work of Jeremy Bentham and has since gained wide acceptance in academic literature.Footnote 39 Thereafter, in his volume on Jurisprudence, Salmond (preceding Hohfeld) declared that there can be no right without a corresponding duty and vice versa.Footnote 40 In fact, it was on Salmond’s system that Hohfeld based and developed his analytical scheme by taking it a step further.Footnote 41 Hohfeld treats rights and duties as correlatives for, in his words, ‘it is certain that even those who use the word and the conception “right” in the broadest possible way are accustomed to thinking of “duty” as the invariable correlative’. Footnote 42 In this connection, Hohfeld asserts that this conclusion was previously recognized in the very early case of Lake Shore & M.S.R. Co. v. Kurtz,Footnote 43 from 1894, in which it was boldly stated: ‘A duty or a legal obligation is that which one ought or ought not to do. “Duty” and “right” are correlative terms. When a right is invaded, a duty is violated.’Footnote 44
Furthermore, Immanuel Kant’s moral philosophy, particularly in The Metaphysics of Morals,Footnote 45 supports the above correlative relation, which assumes that a duty implies a correlative right, in the following passage:
[the man] is obligated to acknowledge, in a practical way, the dignity of humanity in every other way. Hence, he is subject to a duty based on the respect he must show every other man … Every man has rightful claim to respect from his fellow man.Footnote 46
From the Kantian account, it can be concluded that the correlativity between rights and duties is not only logically supported, but also serves as an imperative tool for human rights to be able to uphold the dignity of a person.
The case made in this article supports the theorization of a right to be rescued at sea that is based not only on Hohfeld’s analytical scheme of relations but is also underpinned by a Kantian respect for the inherent dignity of a person. Together they provide a robust justification for the courts to start the jurisprudential inquiry by identifying a right to be rescued as correlative to the duty to render assistance at sea. Thereafter, the emphasis shifts to establishing the facts of each case, including the risk to life of the migrants adrift at sea and what the state knew or ought to have known in the circumstances. In other words, the first issue is the identification of the right, before then determining whether it has been violated on the facts. Against this Hohfeldian backdrop, the courts will be able to delve into an analysis of extraterritoriality and shape the normative contours of this right by engaging with the methods of treaty interpretation.
More will be said about these steps in judicial enquiry below. However, it is worth noting at this point that this logic is buttressed, somewhat analogously, by Hans Kelsen’s legal theory on the basic norm,Footnote 47 which manifestly inherits Hohfeld’s logical line of theory and provides an imperative philosophy in the field of analytical jurisprudence. Kelsen particularly distinguished between the logical norms (norms of thinking) and moral and legal norms (norms of acting). In brief, the existence of a norm is its ‘validity’ which exists independent of the process of interpretation, that is, when norms come into being as legal norms. In his own words, the basic norm is the reason of the validity of subsequent legal norms in a constitution (or treaty) as ‘[i]t is a fundamental logical principle … It is a norm presupposed in our juristic thinking; it cannot be a norm created by the act of will of a definite individual’.Footnote 48 Going back to my initial argument, if the courts recognize a ‘new’ right to be rescued at sea, it shall not mean that it is ‘new’ in the sense that it never existed before or that they created the norm. The conclusions reached by the Kelsenian theory are important insofar as his theory supports the view that the logical structure of normative systems should prevail over empirical/historical/causal claims for legal norms. In this way, it supports Hohfeld’s theory, which should be in a similar vein considered prior to any subsequent claims and theories of rights.
2.2 A Hohfeldian right to be rescued at sea
Applying Hohfeld’s model to the study of irregular migration by sea, it can be logically concluded that the correlative of the existing duty to render assistance at sea, is a legal right to be rescued at sea, vested in individuals, which will transpose as follows: shipmasters are under a duty to rescue at sea subject to an individual’s right to be rescued at sea. In this vein, even though I am purportedly arguing that this right acquires legal status by way of employing Hohfeld’s theory, this is so only in theory. In practice, it will require a court developing the law in a positive manner to proclaim its (legal) existence.Footnote 49
Interestingly, a right to be rescued at sea has slowly started to be articulated in scholarly works, which pave the way to its recognition. For instance, Oxman, many decades ago recognized, only in passing, that a Hohfeldian might argue that international law establishes a right to be rescued at sea by reason of the duty to render assistance in Article 98 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS).Footnote 50 More recently, Seline Trevisanut, in assessing the existence of a right to be rescued at sea, acknowledged that such right emerges from international human rights law and in particular she argued that ‘the duty to render assistance can be considered as the operational obligation deriving from the application of the human right to life at sea’.Footnote 51 Following this analysis, it can be observed that the duty to rescue is a practical response to protect the right to life at sea. In the same vein, Efthymios Papastavridis posed the question whether the time is ripe to recognize a right to be rescued at sea, for which he claims there is an ‘urgent need’.Footnote 52 Both Trevisanut and Papastavridis shape their analyses around the normative frameworks of the law of the sea and international human rights law showcasing how this right can be seen to emerge from existing law, even if such discussions remain somewhat embryonic. What Hohfeld’s theory adds to these discourses is a solid basis to structure a right to be rescued at sea in law, by virtue of its normative correlative, which is logically and philosophically straightforward.Footnote 53
3. The ‘claimability’ of rights
Delving now into an examination of the ‘claimability’ of rights, the study shifts focus to the character of duties, which as will be shown, presents a major objection to the existence of new rights. Apropos the above analysis, a right to be rescued at sea falls in the category of claim-rights; a claim against others. The synonym Hohfeld espoused to use, claim, to describe the word right in the strictest sense carries with it an important sense of this type of right; it concerns actions or omissions by someone else. In Hohfeldian terms, a ‘duty’ accordingly means ‘that which one ought or ought not to do; subjection to or susceptibility to another’s claim or right (“obligation”)’.Footnote 54 Applying the Hohfeldian theory will mean that an individual’s claim-right to be rescued will be directed against some duty-bearer(s) to perform this act. The confusion that then arises is the identification of someone responsible to perform the duty or in the case of non-performance, identifying the violator. As will be explored below, in the context of saving lives at sea, operational difficulties arise at the stage of identifying a potential duty-bearer which will be tasked to undertake a rescue in case of a distress call, as there is a mixture of actors involved each time and each with different degree of responsibilities. In O’Neill’s theory this will translate as an objection to the existence of an individual right to be rescued at sea.
3.1 O’Neill’s theory on rights
O’Neill developed her philosophy of rights based on the character of duties, which functions as a criterion to the recognition of rights. Specifically, she argues that on a normative basis, rights cannot exist unless there are specified duty-bearers who are under an obligation to ensure that the right is complied with.Footnote 55 Consequently, the theorist presents the concept of rights to be prima facie something actually claimable; that for rights to be acknowledged as rights, specific duty-bearers need to fixed. Else rights cannot be claimed, waived or enforced and hence cannot exist in the first place.Footnote 56 This is so, as the absence of a treaty (for instance) will suggest that there is no state compliance vis-à-vis ensuring that the rights in question will be protected or provided.Footnote 57
Proponents of O’Neill’s theory will maintain that a codified legitimate formal structure is a necessary element to achieve successful compliance with rights, hence making them claimable.Footnote 58 In fact, O’Neill’s school of thought centres upon the Kantian tradition of ethics and morals, focusing on individual duties. Notably, as highlighted in the previous section, the Kantian philosophy places emphasis on identifying a specific duty-bearer that owes the performance to the right-holder in question, who can in turn, claim for it. On the other hand, leading theorists of human rights, like Sen, argue that it would be a mistake to presume in general that if a human right is important, then it must be legislated (or, enshrined in a treaty) into an enforceable legal right.Footnote 59 On this kind of approach, the effectiveness of human rights does not rest on seeing them systematically as putative proposals for legal enactment.Footnote 60 In fact, Tasioulas argues that the mere fact that a right might achieve legal enactment in a treaty or legislation does not automatically grant the legal authority to enforce it, hence it might be effectively unenforceable due to deficiencies in the capabilities of duty-bearers.Footnote 61 Consequently, a human right will exist independently of enforcement mechanisms or an associated remedy, for example, it can just be declaratory.Footnote 62 This approach is in harmony with Hohfeld’s theory (and Kelsen’s).
In this regard, O’Neill further supports that if we are to consider rights seriously and view them as normative rather than aspirational, we must take duties seriously too.Footnote 63 If we are to take human rights as aspirational, then the costs are high because this would mean, that if the human right is unmet then there will be no breach of obligation and thus no one to be held accountable.Footnote 64 At first reading, there is nothing wrong with anticipating that obligations should be taken seriously in order for rights to be recognized, after all this is a bona fide concern; yet, such theory misrepresents the whole idea of human rights and places an unrealistic condition on the existence of new human rights. The claimability condition to the existence of human rights, to put it bluntly, does not result in anything more than allocating duties to specifiable agents, which might not even bring the anticipated enforceability or compliance with such rights.
3.2 The claimability condition and the duty to render assistance at sea
In a nutshell, claimability for O’Neill rests on the premise that a right needs to have a justified claim that has two axes: one, a claim must have an object – it must be a claim to something; second, a claim must have a direction – it must be a claim against some duty-bearer.Footnote 65 In order for a right to be claimable both the object and the direction must be justified – if not, then it is not claimable.Footnote 66 In this realm, a right to be rescued at sea is a claim of assistance, in other words, a claim to be rescued when found in distress at sea, hence it has an object. The confusion arises when considering the second axis, the direction of a (potential) claim to be rescued at sea, that rests upon identifying the duty-bearer that shall carry out this duty. In this vein, O’Neill supports that if the duties are undirected (also referred to, as ‘imperfect’),Footnote 67 then correlative rights cannot exist because no-one will be in a position to lawfully claim that its performance is directed to her.Footnote 68 Although, the Article supports for abandoning the claimability condition to the existence of rights, it is still vital to shed light to the complexities arising from the duty to render assistance at sea, to demonstrate how in particular, its correlative right can escape this critique.
3.2.1 Scope and application of the duty
The principle of saving lives of those in distress at sea is of paramount importance for preserving the safety of life and, particularly, for safeguarding the right to life under international human rights law. Apart from being a a long-standing and fundamental tradition of seafaring, this humanitarian norm is also incorporated as a legal duty of the SAR system under international law. Respectively, the International Maritime Organization’s (IMO) role is preeminent in laying down implementation instruments and complementary rules for the fulfilment of rights and duties of states that must be exercised in the different maritime zones.Footnote 69 As such, the general basis of the duty to rescue as enshrined in Article 98 of UNCLOS becomes operational by the support of the international harmonized framework for maritime SAR laid down in the auspices of the IMO instruments, namely: the International Convention for the Safety of Life at Sea 1974 (SOLAS),Footnote 70 the International Convention on Maritime Search and Rescue 1979 (SAR Convention)Footnote 71 and the International Convention on Salvage 1989 (Salvage).Footnote 72
Turning to a close examination of the scope and application of the duty to render assistance at sea, Article 98 (1) UNCLOS provides:
(1) Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him …Footnote 73
Whilst the above normative framework clearly establishes the duty to render assistance to persons in distress at sea, there are evident ambiguities in the treaty rules which impinge its operation in practice. In the context of the first paragraph of Article 98, an obligation is imposed upon flag states to ensure that the shipmaster of a vessel flying its flag renders assistance to persons whose life is at danger of being lost at sea.Footnote 74 Whilst the provision spells that the duty-bearers, a priori, are states, it is nonetheless understood that the duty applies to both states and shipmasters alike, including private vessels, military and other state-owned vessels.Footnote 75 Evidently, the due diligence requirement in the above provision is an obligation of conduct, which requires the flag state to take reasonable measures to prevent shipmasters flying its flag from failing to assist persons in distress at sea. Respectively, the flag state duty is generally executed through national legislation, for instance, the imposition of criminal sanctions against shipmasters who fail to provide such assistance. Footnote 76
What does it really mean to say then, that a shipmaster of a vessel has a duty to another person?Footnote 77 We can identify that this duty is prima facie positive, since it requires positive action to provide assistance. Indeed, this is a case where positive duties are owed towards distant strangers; hence the acknowledgment of duties occurs across borders. The difficulty arises in considering the subjective element present, in particular where it states ‘in so far as he can do so and without serious danger to the ship, crew or passengers’. Arguably, this wording allows shipmasters to decide, based on their subjective judgement, whether or not to provide assistance to persons found in distress at sea, based on the circumstances of each incident. In this way, one can argue that the duty fails to meet the claimability requirement as we cannot identify a priori the duty-bearer(s) because ach situation will be treated on ad hoc arrangements. Nonetheless, this unrealistic requirement can be defeated by the fact that all shipmasters are potentially duty-bearers and therefore all are under a duty to make the assessment as to the capability to carry out the rescue – and if capable, are thereafter under the duty to undertake the rescue.
Some clarity is provided on the second paragraph of Article 98 UNCLOS, which shifts the focus on coastal states:
Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.Footnote 78
From the above provision, we can trace yet another general duty imposed individually this time upon coastal states to promote SAR services and to co-operate with states nearby for the purpose of maritime safety in order to strengthen the effectiveness of the duty to render assistance. Relatedly, SOLAS requires state parties to set up SAR facilities to effectively render assistance to those in distress at sea and around their coasts. Footnote 79 Moreover, it provides that upon the launch of a distress signal, governments should ensure that the necessary arrangements are made to locate the persons in distress and assist them.Footnote 80 Ergo, even if there is a situation where a shipmaster is unable to provide assistance to persons in danger, the coastal state is still required to appropriately co-operate with other states and ensure the efficiency of SAR services are rendered in its SAR zone.Footnote 81 Accordingly, the right to be rescued at sea will be triggered by the knowledge of the state of the apprehended risk to the life of persons, which is determined by the ‘knew or should have known’ standard in relation to the events in question.Footnote 82 As Papastavridis has argued, the ‘positive knowledge of the distress situation’ should be taken into consideration for establishing the exercise of state jurisdiction.Footnote 83
The argument maintained in this analysis is not that a right to be rescued at sea is absolute or unlimited in scope. The positive obligations emanating from its application, will be obligations to exercise due diligence to prevent loss of life whenever it falls within a state’s functional capacity (potentiality) to impact – remotely or physically – through its decisions (acts and/or omissions) the lives of individuals who find themselves in a distress situation in a direct and reasonably foreseeable manner.Footnote 84 This understanding is supported to some extent, for instance, by the European Court of Human Rights (ECtHR), which has made clear that direct physical contact is not always required as long as the control exercised is effective.Footnote 85 Consequently, the right to be rescued at sea operates ‘ex ante’, before rescue efforts are initiated, in order to stimulate conduct that will be in line with the SAR system and international human rights law.Footnote 86
Essentially, the above peculiarities in the context of irregular migration by sea rest on the very nature of the place that migrants are found, that is the high seas, which can be described as an area beyond national jurisdiction, largely ‘free from legal oversight’, creating something of a practical straitjacket.Footnote 87 Respectively, it has been argued that ‘[t]he high seas remain one of the few places on earth not subject to a national sovereign legal order, which could be said to make the legal framework rather thin, both legally and, especially, institutionally’.Footnote 88 Yet, the ECtHR, for instance, has reaffirmed in numerous instances that the high seas cannot be considered as an area alien to the reach of law where persons are not afforded any protection.Footnote 89 In this regard, law prevails but, it is undermined by the difficulties in maritime governance. What the above analysis has shown is that the so-called claimability requirement presents an obstacle to the effective realization of a right to be rescued at sea, but not to its existence as a human right.
4. Philosophical justifications of a right to be rescued at sea
Following, this section, resumes elucidating the most dynamic responses to O’Neill’s work, which will allow the recognition of a right to be rescued at sea, while rejecting the claimability condition to the existence of rights. The premise is based on the understanding that human rights are (primarily) moral claims, that all humans have and should enjoy rights by virtue of their humanity, so their existence and justification is not dependent upon institutions.Footnote 90 Whereas, O’Neill’s theory is in contradiction with this view; in her account, the justification of rights will always rest on the existence of co-ordinating institutions that allocate the relevant duties and delineate the contours of those rights.Footnote 91
Tasioulas presents a powerful response to this view, as his theory challenges the notion of claimability, which he sees as not a necessary condition for the existence of rights.Footnote 92 He supports an account of rights according to which ‘a right exists if an individual’s interest, taken by itself, has the requisite kind of importance to justify the imposition of duties on others variously to respect, protect and promote that interest’.Footnote 93 This justification is primarily grounded on the values underlying human rights, ‘or, put differently, the considerations to which we need to appeal in order to justify belief in the existence of human rights’.Footnote 94 In the same spirit as Tasioulas, I endorse an interest-based account of rights, which justifies the existence of a right to be rescued at sea by virtue of the fundamental value that life has to all persons ‘[that is] on its own sufficient to justify holding (yet-to-be-specified) others to be under duties to respect, protect, and promote this value’.Footnote 95 The interest will serve to ground a claim to a right to be rescued at sea by the simple fact that if this right is (once) violated then, the interest being protected will be irreversibly extinguished.Footnote 96 I concur with Tasioulas that institutions are essential for the allocation of duties to duty-bearers, yet we are still justified in affirming rights prior to their institutionalization, hence prior to the identification of the duty-bearer(s). This approach escapes the unnaturally demanding theory of O’Neill, which imposes unnecessary limits on the proclamation of rights. Alternatively, allocation can be seen as a separate, supplementary question, which it is unnecessary to answer in order to recognize the existence of a right.Footnote 97
Moreover, Sen presents an alternative philosophical account in his conceptual justification for rights, which centres on the standing of human rights. Sen argues that human rights generate reasons for action and consequently both perfect and imperfect obligations are correlative with human rights (whereas O’Neill maintains that only perfect obligations can create correlative rights).Footnote 98 In this regard, Sen claims that:
[t]he implementation of human rights can go well beyond legislation, and a theory of human rights cannot be sensibly confined within the juridical model in which it is frequently incarcerated. For example, public recognition and agitation (including the monitoring of violations) can be part of the obligations – often imperfect – generated by the acknowledgment of human rights.Footnote 99
Public recognition and agitation are in fact important processes in the recognition stages of a human right.Footnote 100 In this regard, recognition can take multiple forms, the simplest and initial one being a resolution passed by the United Nations General Assembly (UNGA), formalizing the norm in soft-law and stipulating further steps in the process of turning it into a formal binding rule.Footnote 101 This kind of recognition follows the traditional route of rights recognition in international law, the strongest example being the Universal Declaration of Human Rights 1948 (UHDR). While the UDHR does not enjoy legally binding status, nor it entails mechanisms of international enforcement, it has nonetheless received universal acceptance as a basis for the recognition of rights in international human rights law.Footnote 102 Undoubtedly, the list of internationally recognized human rights has not remained constant; we are steadily witnessing the emergence of treaties and documents that further advance some of the basic concepts laid down in the UDHR.Footnote 103 As with the drafters of the UDHR, the hope remains that the recognition route is a primary step that can help illuminate the journey towards the full realization of the right to be rescued at sea.
Pertinently, Waldron points out that positive law does not ‘simply spring into existence’, but it slowly emerges and its existence ‘as law can be a matter of degree’.Footnote 104 Accordingly, he argues that norms coming into being, begin from a soft law, declaratory status and gradually crystallize in positive law. Ergo, there is no decisive moment in which human rights emerge. Further, as Sikkink perceives, the world is not working according to ‘iron laws’, but instead we construct the world of the political and the social at certain moments and certain times.Footnote 105 Interestingly, Sikkink claims that human rights ‘provide[s] a morally defensible starting place for talking about progressive change in the world’.Footnote 106 In a similar vein, it should be borne in mind that a number of well-recognized human rights, like the right to water,Footnote 107 are not explicitly laid down in treaty texts or domestic legislation, in most jurisdictions, yet are better promoted through other means, including public debate, legal scholarship, collecting accurate information, monitoring violations and activism.Footnote 108 In this respect, Sikkink in her latest book on rights and responsibilities, underlines the idea of the existence of new human rights, while at the same time giving emphasis to the actions needed to advance those rights.Footnote 109 Sikkink’s account is forceful, as she argues that all actors (beyond the state), acquire an ethical and political responsibility to protect human rights at stake (irrespective of whether they have a legal responsibility).Footnote 110 Notably, she characterizes the actors who take their ethical responsibilities seriously as the ‘norms entrepreneurs’ and that such actions can be part and parcel of fulfilling rights.Footnote 111
In the area of migration, both Médecins Sans Frontières (MSF) and Amnesty International, have an extremely active role in advancing the interests of migrants and promoting such claims as well as the overall respect and mobilization for the protection of human rights; for example, they take part in legal action against governmentsFootnote 112 and/or try to promote rights and enhance public awareness through their activities.Footnote 113 In particular, MSF Sea has been voluntarily active in SAR in the Mediterranean, in an effort to uphold the duty to render assistance at sea.Footnote 114 Therefore, we can see how non-governmental organizations (NGOs) are critical players, not only in the advancement and protection of human rights of vulnerable people but also in promoting recognition, in the absence of legislation and/or enforcement. Adding to this, effective synergies, for example, between civil society organizations and academics can also play a salient role in human rights movements. One dynamic synergy is the Global Legal Action Network (GLAN), comprising of distinguished academics, legal practitioners as well as investigative journalists, which seeks to mobilize law to prevent and response to human rights violations through international legal strategies.Footnote 115 These kind of channels allow for expansion of the actors involved in the human rights community beyond the sovereign state; channels that can be more compelling and effective in promoting the recognition of human rights and norms movement.Footnote 116 As Benhabib argues, public argument, deliberation and exchange present effective channels, which universalist claim-rights can be contested and contextualized, pointing towards their legalization and juridification everywhere.Footnote 117
5. Towards formal recognition of the right to be rescued at sea
This section will sketch some of the practical recognition avenues in which the right to be rescued at sea can be seen to emerge as a legal concept. First, it will consider potential soft law emanations, which can recognize the existence of this right (e.g., UNGA resolutions)Footnote 118 and then, will progress to show how interpretative techniques by courts can harvest its full recognition (become binding law).
The focus is centred on the ability of judges to positively construct the right to life in a manner that is not considered as ‘judicial activism’ but instead as interpreting the law in light of present-day conditions, ‘and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights’.Footnote 119 As Alan Boyle and Christine Chinkin have argued, judges present a vital source of contemporary international law-making.Footnote 120 Relatedly, Ingo Venzke has stressed that in international law, ‘we make up the rules “as we go along”’.Footnote 121 Ideally then, the exercise of interpretation is to carve out the real meaning of a legal provision ‘in the totality of what surrounds the words, their context’ to provide certainty about a provision’s meaning.Footnote 122 Legal reasoning, as Hohfeld’s analytical scheme exemplified, is an activity of finding the law that already exists.Footnote 123 Hence there is ‘no agency, no politics, and no problem’ in the interpretative practice.Footnote 124 Instead, as Venzke has argued, the development of international norms through interpretation is a legitimate practice in international law, one that is valid and binding upon states.Footnote 125 Yet, some will remain sceptical if the interpretative way of approaching existing doctrine, is the best choice to solve this structural problem on the high seas; indeed the practice of judicial institutions is not free from defects.Footnote 126 The argument will be that the courts role as the authoritative voice of human rights, in the case of the ECtHR for Europe, has been previously subjected to high levels of criticism in relation to specific ‘revolutionary’ judgements, although it has been developing positive obligations under the European Convention on Human Rights. Vitally then, Hohfeld’s theory advances judicial reasoning and allows the law to be developed in a progressive yet coherent and logical way to achieve effective protection of individual interests.
Before proceeding a caveat is in order. The analysis below will not consider other traditional paths of making international law – through a treaty and/or customary international law.Footnote 127 This is both an inevitable short-cut, mainly due to the limited space available in this Article, but also a deliberate one, as it is posited that Hohfeld’s analytical scheme together with the interpretative (teleological) route presents a novel avenue, which can attain the desirable outcome of protecting human life at sea and the sanctity of the law. This is arguably a more convincing approach than alternative law-making strategies, as situating a right to be rescued at sea within the existing right to life allows it to be part of the lex lata immediately,Footnote 128 whereas participation in a treaty is at the discretion of states and in a hotly contested area, like irregular migration, will hardly bear fruit. As Takele Soboka Bulto points out, a teleological approach is employed, inter alia, ‘to promote the objectives for which the rule of law was designed and to fill legal gaps in a given legal order’.Footnote 129 In this way, the right to life will be interpreted in line with its object and purpose in a manner that is responsive to the difficulties that migrants face during irregular sea crossings.
Against this backdrop, the right to life imposes both positive and negative duties upon states to protect life, requiring fundamentally that states take reasonable steps to prevent reasonably foreseeable loss of life for those under their authority or jurisdiction. Footnote 130 In particular, the ECtHR has given a wide margin of appreciation to states on the issue of ‘reasonable steps’ – positive intervention – to be taken to prevent loss of life, risk to life and/or to reduce this risk.Footnote 131 Yet, these duties appear to remain unfulfilled at sea due to the existence of a dysfunctional international maritime framework but also, because jurisdiction presents the Achilles heel of human rights applicability at sea, even more so, to the obligations that can be imposed on states in protecting rights. Consequently, the absence of human rights jurisdiction ipso facto means that individuals cannot claim protection against a state to secure their human rights.Footnote 132 It follows that the right to be rescued at sea has inherently an extraterritorial reach, or simpliciter, it is a right that by the very nature of where it needs to be secured – at sea – requires the establishment of a jurisdictional link between the duty-bearing state and the potential-right holding individual. In this respect, the need for developing a functional conception of jurisdiction is centred on the fact that for this right to be secured and be realized, state jurisdiction ought to be expanded to circumstances where a state might have the capacity to protect life that is under risk.Footnote 133 Evidently, jurisdiction becomes a pre-requisite for a right to be rescued at sea to be actionable, though such an enquiry is beyond the ambit of this article as aforementioned.
It was for the first time in 2018, with the development of the Global Compact for Migration (Compact), that the UNGA recognized the connection between the two regimes of international law, human rights and the law of the sea.Footnote 134 Particularly, it explicitly affirmed in Objective 8, the need of states to ‘save lives and established co-ordinated efforts on missing migrants’.Footnote 135 Additionally, it stressed the need for states to ‘[c]ommit to cooperate internationally to save lives and prevent migrant deaths and injuries through individual or joint search and rescue operations, … assuming collective responsibility to preserve the lives of all migrants, in accordance with international law’.Footnote 136 In particular, in order to realize this objective, it called states to ‘Develop procedures and agreements on search and rescue of migrants, with the primary objective to protect migrants’ right to life’.Footnote 137 Importantly, the Compact by making a strong reference to realizing the need to protect migrants’ right to life at sea, it arguably accommodated a right to be rescued at sea within the existing corpus of human rights. As such, the need to address and prevent foreseeable deaths on maritime migrant routes buttresses this premise, and accordingly translates: if states must save lives, then correlatively, migrants have the right to be saved.
Another important actor in the process of recognizing rights are human rights treaty bodies (or tribunals), which often undertake a considerable amount of interpretation.Footnote 138 Whilst these treaty interpretations are not binding on states, they form a fundamental part of the actions required towards achieving the development of a legal norm. In this terrain, an equally important development that followed on the same year with the Compact is the adoption of General Comment No 36 on the right to life (Article 6, ICCPR) by the HRC.Footnote 139 Particularly, in paragraph 63, the HRC specified that states have an obligation to protect and ensure the right to life for all persons over whom it exercises power or effective control and ‘[t]his includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner’.Footnote 140 Moreover, it authoritatively confirmed that international law of the sea correlates with a state’s duty to protect the right to life at sea, by adding that ‘States parties are also required to respect and protect the lives of all individuals located on marine vessels … and of those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea’.Footnote 141 Manifestly, these positive obligations have now being applied in its most recent decision, A.S., offering a beacon of hope for migrants that they will no longer be kept outside the reach of human rights – and hence, its paramount importance and call for recognition.
5.1 The A.S. case
Notably, the A.S. case marks the first decision by a human rights treaty body on a joint complaint lodged by three Syrians and a Palestine national, who survived the accident but lost their relatives as Italy failed to respond swiftly to several distress calls from their sinking vessel. The Committee found a violation of the duty to protect the right to life due to the state’s negligent acts and omissions in the rescue operation, which had fatal consequences for the complainants’ family. Notably, the majority members reasoned that ‘a special relationship of dependency’ was established between the individuals in distress and Italy from the moment Italy’s Maritime Rescue Coordination Centre (MRCC) answered the distress call and onwards.Footnote 142 Ergo, this brought the individuals within the effective control of the state.Footnote 143 In essence, this can be conceptualized as a functional understanding of jurisdiction, as the functions the state exercised and its capacity to directly affect the lives of individuals created a causal relationship between the people in distress and the recipient state.Footnote 144 Consequently, the Committee reasoned that ‘the individuals on the vessel in distress were directly affected by the decisions taken by the Italian authorities in a manner that was reasonably foreseeable’ notwithstanding the fact that they were concurrently subject to the jurisdiction of Malta, who had assumed formally primary responsibility to co-ordinate the rescue operation as the migrant’s vessel was in its SAR zone.Footnote 145
Accordingly, by treating both states as duty-bearers, the Committee confirms the argumentation posited herein, that is, for rights to be claimable (and in order to exist as rights) it is not necessary to identify the duty-bearer(s) a priori because each situation will be treated on the basis of the factual circumstances in which it arose. Ergo, the findings of the Committee confirm that a right to be rescued at sea could result from the application of the right to life in a SAR context without having to identify the duty-bearers beforehand. Instead, what is needed in order to realize this right are clear guidelines to appreciate what normative considerations will trigger jurisdiction and hence human rights obligations. It is my submission that given the multiplication of practices and arguably, a consistent failure by European governments and the EU to adopt a humanitarian migration response in the Mediterranean, constantly alibi-hunting, the courts as salient guardians of human rights need to accentuate their efforts and condemn those violations like the Committee did in this case and as the ECtHR did in Hirsi Jamaa and Others v. Italy. Footnote 146
In fact, the decision in A.S. could help build a positive finding in a similar, pending case before the ECtHR, S.S. and Others v. Italy Footnote 147 and make a critical contribution to narrow the gap in migrant protection in mare liberum. It is likely, of course, that if the ECtHR recognizes a right to be rescued at sea and espouses a similar functional jurisdiction test, it will face political backlash from the Council of Europe’s states and to charges of illegitimate power grab on the part of international human rights institutions.Footnote 148 It is against this understanding that constructing a right to be rescued at sea based on the Hohfeldian doctrine of logical correlativity, shows why it would not be ‘controversial’ for a court to legitimately develop international human rights law in that way. As Mann elucidates, ‘if these rights abuses are not usually prevented and implicitly accepted by powerful actors as normal’, then we have a de facto situation of rightlessness. One should not forget that the ECtHR’s role is to protect the inalienable rights of all human beings. For migrants to be no longer marginalized arbitrary practices such as this should not be left unchallenged. Footnote 149
One might ponder at this stage: why, then, recognize such a right explicitly, if extending the right to life extraterritorially will technically capture those rescue incidents? And finally, what will it add to the human rights field that is not already there? The answer to this is far simpler than the questions it evokes. To put it simply, proclaiming the existence of a right to be rescued at sea will operationalize rescue as an international legal concept. From a legal perspective, this new human right is already protected if it is an extension of an existing human right.Footnote 150 As such, recognition of such an aspect would have legal value if it does not simply highlight the new right, but there is an actual process of specification and definition that helps give the right a new legal shape or fill important gaps in the protection of human rights.Footnote 151 Ergo, recognizing a right to be rescued at sea is not a utopian or rhetorical gesture but requires a full exploration of the conceptual relationship between the two areas of international law, the law of the sea and human rights, in order to delineate its contours.
It is my belief that international judges are powerful players in the process of international law-making that can exercise their authority to juris dicere and recognize the existence of rights. Acknowledging though that a right to be rescued at sea has not (yet) progressed to the juridification process, the article’s contribution was to lay down the theoretical foundations and highlight the steps that will allow the recognition and realization of a right to be rescued at sea in international law.
6. Conclusion
The article has provided the starting point rather than an endpoint, in placing an individual right to be rescued at sea on the legal map: a dynamic process which can yield into its full recognition. I have maintained that the operative reality of human rights, is neither their claimability nor their enforceability, but rather their gradual recognition, which manifests normative standards to which our choices and actions ought to conform.Footnote 152 The imperative role of claimability and enforcement through institutionalization mechanisms for the realization of rights is beyond doubt. But rights need to be recognized first in some way, as normative ideals through advocacy and scholarly works, progressing to acquiring soft-law recognition and universally applicable human right status, paving the way for explicit recognition in international law. To downgrade the importance of rights according to their legal status would be a clear mischaracterization of the nature of human rights as normative standards.
It must be reminded that human rights came along when humanity was dying. Likewise, a right to be rescued at sea needs to ‘be born’ because humanity at sea is dying. By recognizing the right to be rescued at sea, the courts will be administering that individuals under certain grounds qualify for such protection, and if the right is not observed, it would provide individuals with a procedural right to an effective remedy to challenge the situation before a national authority. And while international human rights law alone cannot, of course, guarantee that migrants are fully protected at sea, it nonetheless affords a means by which to challenge their perceived ‘rightlessness’ and a way to enhance their rights. Foremost, such an attempt will challenge the boundaries of rights and is well overdue.
