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The recognition of a right to be rescued at sea in international law

Published online by Cambridge University Press:  03 February 2022

Aphrodite Papachristodoulou Open the ORCID record for Aphrodite Papachristodoulou [Opens in a new window]
Aphrodite Papachristodoulou*
Affiliation:
University College Dublin, Sutherland School of Law, Belfield, Dublin 4, Ireland Email: aphrodite.papachristodoulou@ucdconnect.ie
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Abstract

Current efforts to address the challenges faced by migrants at sea are not effective, as the attention is deflected to security measures for deterring people to leave their countries in the first place, rather than efforts to provide for an adequate search and rescue system which will preserve their rights and lives. This article puts an individual right to be rescued at sea on the legal map mindful of evolving migration challenges and the need to be responsive to human rights crises. By contextualizing philosophical theories that have shaped our understanding of the idea of human rights, it turns to examine the pathways in which rights on the horizon emerge and achieve full recognition. This article contends that irregular migration by sea necessitates normative change and activates an international dialogue on recognizing a right to be rescued at sea that will utmost challenge the boundaries of rights beyond national borders.

Keywords

duty to render assistance at seahuman rightsirregular migration by searight to be rescued at searight to life
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 35 , Issue 2 , June 2022 , pp. 337 - 356
Copyright
© The Author(s), 2022. Published by Cambridge University Press

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Footnotes

*

LLB (University of Southampton), LLM in Maritime Law (University College London), PhD (University College Dublin). I am deeply grateful to Dr Richard Collins for his in-depth comments, suggestions and substantive criticism. I am also grateful to Professor Suzanne Kingston and Dr Liam Thornton for their valuable comments on an earlier draft. I have also benefited from discussions with Professor John Tasioulas, Dr Graham Finlay and Dr Suzanne Egan. An earlier version of this article has been presented at the Society of Legal Scholars (SLS) PhD Workshop on International Law (virtually), 30 April 2021. Thanks to the participants at this workshop as well as the two anonymous reviewers for their useful comments and feedback. I am also indebted to the A.G. Leventis Foundation and the National University of Ireland E J Phelan Fellowship for funding my research. As always, any errors or omissions remain my own.

References

1 The data is collected from the International Organization for Migration (IOM), ‘IOM’s Missing Migrants Project’, available at www.missingmigrants.iom.int. The IOM’s Missing Migrant Project represents the most adequate figures collected on the Mediterranean region. Yet, a caveat is that many migrant deaths around the world go unrecorded. As such, the data can sometimes be under-inclusive and may not represent the actual number of migrant fatalities at sea. For more analysis on these trends see A. Papachristodoulou and R. Collins, ‘Pulling Back Navies and Pushing Back Migrants: Questioning the EU’s International Legal Responsibility in the Mediterranean Sea’, at 11–16, SSRN, 5 March 2020, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=3548637.

2 It should be noted that migration movements and deaths in the Mediterranean preceded the year 2015. Particularly, the aftermath of the Arab Spring in 2011 produced a revolutionary migration wave across the North African regions causing millions of people to flee their countries. The phrase ‘international moral panic’ is borrowed from C. Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’, (2004) 67(4) Modern Law Review 588.

3 Human Rights Committee, A.S. and others v. Italy, CCPR/C/130/D/3042/2017 (2017), at 23.

4 Human Rights Committee, A.S. and others v. Malta, CCPR/C/128/D/30423/2017 (2017).

5 1966 International Covenant on Civil and Political Rights, 999 UNTS 171.

6 A.S. and others v. Italy, supra note 3, para. 23.

7 For instance, see inter alia J. Tasioulas, ‘Saving Human Rights from Human Rights Law’, (2019) 52 Vanderbilt Journal of Transnational Law 1167; H. Hannum, ‘Reinvigorating Human Rights for the Twenty- First Century’, (2016) 16 Human Rights Law Review 409, at 412–13.

8 For example, see S. Egan, ‘Tackling the Rise of Child Labour in Europe: Homework for the European Court of Human Rights’, (2015) 64 ICLQ 601, at 615; A. Sengupta, ‘On the Theory and Practice of the Right to Development’, (2002) 24(4) Human Rights Quarterly 837. See also general discussion on the recognition of new human rights, K. Von Der Decken and N. Koch, ‘Recognition of New Human Rights: Phases, Techniques and the Approach of “Differentiated Traditionalism”’, in A. Von Arnauld, K. Von Der Decken and M. Susi (eds.), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (2020), at 7.

9 W. N. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, (1913) 23 YLJ 16; W. N. Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’, (1917) 26 YLJ 710.

10 J. R. Morss, ‘The Legal Relations of Collectives: Belated Insights from Hohfeld’, (2009) 22(2) LJIL 289, at 305.

11 P. Biasetti, ‘Infinite Regress and Hohfeld: A Comment on Hillel Steiner’s “Directed Duties and Inalienable Rights”’, (2015) 126(1) Ethics 139, at 140; L. Lazarus et al., ‘The relationship between rights and responsibilities’ (2009), available at www.matrixlaw.co.uk/wp-content/uploads/2016/03/23_11_2010_05_42_34_research-rights-responsibilities.pdf.

12 For instance, Raz refers to Hohfeld’s legal theory as a ‘promising’ starting point for which some philosophers initiate their analysis of rights in general. See J. Raz, ‘Legal Rights’, (1984) 4(1) Oxford Journal of Legal Studies 1, at 1–2.

13 I use the terms ‘duty to rescue’ and to ‘duty to render assistance at sea’ interchangeably; these terms carry the same meaning and have been so used in the literature.

14 O. O’Neill, Towards Justice and Virtue (1996).

15 J. Tasioulas, ‘The Moral Reality of Human Rights’, in T. Pogge (ed.), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (2007), 75, at 101.

16 Decken and Koch, supra note 8, at 7–8.

17 This view associates also with writers such as John Tasioulas, Jeremy Waldron, Amartya Sen, and Seyla Benhabib.

18 1969 Vienna Convention on the Law of Treaties 1155 UNTS 331, at Art. 31. See also S. Egan, ‘The Doctrinal Approach in International Human Rights Scholarship’, at 12, SSRN, 5 December 2017 available at papers.ssrn.com/sol3/papers.cfm?abstract_id=3082194.

19 S. Kowalska, ‘Pro Homine Principle: An Axiological Compass in Interpretation Norms in the Field of Human Rights’, (2021) 16 Age of Human Rights Journal 207, at 216.

20 See Hohfeld 1913, supra note 9.

21 L. Fiorito and M. Vatiero, ‘Beyond Legal Relations Wesley Newcomb Hohfeld’s Influence on American Institutionalism’, (2009) 45(1) Journal of Economic Issue 199.

22 W. W. Cook, ‘Hohfeld’s Contributions to the Science of Law’, (1919) 28(8) YLJ 721, at 723.

23 Ibid.

24 Hohfeld (1913), supra note 9, at 31, 35. See also, for instance, Lonas v. State, 5 Tenn. 287 (Tenn. Sup. Ct. 1871), at 306–7, in the words of Mr. Justice Sneed, ‘It is said that the words rights, privileges and immunities, are abusively used, as if they were synonymous. The word right is generic, common, embracing whatever may be lawfully claimed.’

25 M. K. Addo, ‘Does Hohfeld Still Matter’, (1997) 29 Bracton Law Journal 7, at 7.

26 T. J. Clayton, ‘The Rights Network: 100 Years of the Hohfeldian Rights Analytic’, (2018) 7(3) Laws 28.

27 Hohfeld (1917), supra note 9, at 710.

28 H. Breaky, ‘Positive Duties and Human Rights: Challenges, Opportunities and Conceptual Necessities’, (2015) 63(5) Political Studies 1198, at 1199.

29 J. M. Balkin, ‘The Hohfeldian approach to law and semiotics’, (1990) 44(5) University of Miami Law Review 1119, at 1121.

30 A. Halpin, ‘Choosing Axioms of Correlativity’, (2019) 64(2) American Journal of Jurisprudence 225.

31 Hohfeld (1913), supra note 9, at 33. See also, A. D. Cullison, ‘A Review of Hohfeld’s Fundamental Legal Concepts’, (1967) 16(3) Marshall Law Review 559, at 559.

32 Hohfeld in his article chooses the word ‘claim’ as what seems to be the most appropriate synonym for the word ‘right’, see Hohfeld (1913), supra note 9, at 32, 36. See also R. Mullins, ‘Moral Conflict and the Logic of Rights’, (2018) 177(3) Philosophical Studies 633.

33 R. Markovich, ‘Understanding Hohfeld and Formalizing Legal Rights: The Hohfeldian Conceptions and their Conditional Consequences’, (2019) 108 Studia Logica 129, at 129; P. Schlag, ‘How to do things with Hohfeld’, (2015) 78(1&2) Law and Contemporary Problems 175, at 188–9.

34 W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 1873-1943 (1978), 38.

35 M. Agnafors, ‘On Disjunctive Rights’, (2017) 55(2) Southern Journal of Philosophy 141, at 147.

36 Markovich, supra note 33, at 137.

37 Halpin, supra note 30, at 2.

38 J. R. Morss, ‘Power and International Law: Hohfeld to the Rescue?’, (2011) 3(2) Western Australian Jurist 93, at 102.

39 J. W. Singer, ‘The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld’, (1982) (6) Wisconsin Law Review 975.

40 J. W. Salmond, Jurisprudence (J. L. Parker (ed.), 1937), at 223–4.

41 Salmond and Parker, ibid. Salmond in his Jurisprudence has identified three jural relations. Hohfeld, as such, stipulates and completes Salmond’s scheme by adding a fourth incident (immunity) and formulates a table of jural relations.

42 Hohfeld (1913), supra note 9, at 31.

43 Lake Shore & Michigan Southern Railway Co. v. Kurtz, 37 N.E. 303 (Ind. Ct. App. 1894), at 304.

44 Hohfeld, supra note 34, at 38.

45 I. Kant, The Metaphysical Principles of Virtue: part II of the Metaphysics of Morals (translated by J. Ellington, 1964), 132.

46 Ibid.

47 H. Kelsen, ‘On the Basic Norm’, (1959) 47(1) California Law Review 107.

48 Ibid., at 108.

49 See infra Section 3.2.1.

50 United Nations Convention on the Law of the Sea, 1833 UNTS 397 (1982). As of August 2021, UNCLOS has 168 state parties, see Division for Ocean Affairs and the Law of the Sea, available at www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm; B. H. Oxman, ‘Human Rights and the United Nations convention on the Law of the Sea’, (1997) 36 Columbia Journal of Transnational Law 399, at 414.

51 S. Trevisanut, ‘Is there a right to be rescued at sea? A constructive view’, Questions of International Law, 23 June 2014, available at www.qil-qdi.org/is-there-a-right-to-be-rescued-at-sea-a-constructive-view/. A similar conclusion is reached by F. G. Attard, see F. G. Attard, The Duty of the Shipmaster to Render Assistance at Sea under International Law (2020), at 41, 193.

52 E. Papastavridis, ‘Is there a right to be rescued at sea? A Skeptical View’, Questions of International Law, 23 June 2014, available at www.qil-qdi.org/is-there-a-right-to-be-rescued-at-sea-a-skeptical-view/; reference to the right to be rescued at sea is also made by V. Tzevelekos and E. K. Proukaki, ‘Migrants at Sea: A Duty of Plural States to Protect Extraterritorially’, (2017) 86(4) Nordic Journal of International Law 432.

53 See also I. Mann, ‘The Right to Perform Rescue at Sea: Jurisprudence and Drowning’, (2020), 21 German Law Journal 598, at 601–2, 608. Interestingly, Itamar Mann builds upon Hohfeld’s theory to argue that the duty to rescue gives also a privilege to perform rescue in such a way that civil society rescuers acquire a right to rescue at sea. The interchangeability of the two terms seems, perhaps, erroneous. The perplexity seems to lie in two focal assumptions: whether Mann treats the duty under Article 98 (UNCLOS provides explicitly that this is ‘a duty to render assistance’) as a privilege, or whether that is of a transforming nature, which can attract different legal relations depending on various factors shifting from a privilege to a duty and forth to creating a right. Either of these will make little sense as it will be a misnomer to morph a privilege into a right and abuse Hohfeld’s scheme. It should be noted that a shipmaster who has a duty to render assistance to persons in distress at sea, cannot also be said to acquire a privilege to do so. Similarly, the term privilege denotes absence of duty on the part of one having the privilege. As such, if shipmasters have a privilege to rescue migrants that means, they certainly do not have a duty to do so, which contradicts the provision laid down in Article 98 of UNCLOS. Nevertheless, I am sympathetic to the reasons Mann tries to advocate for a right to rescue at sea vested in civil society rescue organizations, and in no way do I wish to undermine the paramount role these actors play in rescue operations. In this respect, Mann’s engagement demonstrates that the academic community will employ the Hohfeldian analytical tool when advocating for the proclamation of new rights and providing the structure of rights and duties.

54 P. Marcus, ‘Hohfeld without Rights’, LL.M. Thesis, University of Haifa (2017), available at www.philip-marcus.com/wp-content/uploads/2013/08/Hohfeld_Without_Rights_Thesis.pdf.

55 O. O’Neill, ‘The Dark Side of Human Rights’, (2005) 81(2) International Affairs 427.

56 A similar argument is presented by R. S. Cruft, see R. S. Cruft, ‘Rights: Beyond Interest Theory and Will Theory?’, (2003) 23(4) Law and Philosophy 359; E. Brandstedt and A. Bergman, ‘Climate rights: feasible or not?’, (2013) 22(3) Environmental Politics 400.

57 O’Neill, supra note 14.

58 Brandstedt and Bergman, supra note 56, at 400.

59 A. Sen, ‘Elements of a Theory of Human Rights’, (2004) 32(4) Philosophy and Public Affairs 345.

60 Ibid.

61 Tasioulas, supra note 15, at 84.

62 Ibid.

63 O’Neill, supra note 55, at 430.

64 Ibid.

65 J. Tomalty, ‘The force of the claimability objection to the human right to subsistence’, (2014) 44(1) Canadian Journal of Philosophy 1, at 2.

66 Ibid.

67 See H. Shue, ‘Mediating Duties’, (1988) 98(4) Ethics 687.

68 Ibid., at 688. See also Z. Stemplowska, ‘On the Real World Duties Imposed on Us by Human Rights’, (2009) 40(4) Journal of Social Philosophy 466.

69 K. Sekimizu, ‘The United Nations Convention on the Law of the Sea and the International Maritime Organization Address’, 18 March 2014, available at www.imo.org/en/MediaCentre/SecretaryGeneral/Pages/itlos.aspx.

70 1974 International Convention for the Safety of Life at Sea, 1184 UNTS 278. As of August 2021, SOLAS has 167 contracting states, see IMO, ‘Status of Treaties’, available at www.cdn.imo.org/localresources/en/About/Conventions/StatusOfConventions/StatusOfTreaties.pdf.

71 International Convention on Maritime Search and Rescue, with Ann., 1405 UNTS 97 (1979). As of August 2021, SAR Convention has 113 contracting states. See IMO, ‘Status of Treaties’, ibid.

72 1989 International Convention on Salvage, 93 UKTS 322 (1996). As of August 2021, Salvage has 75 contracting states. See IMO, ‘Status of Treaties’, ibid.

73 UNCLOS, supra note 50, at Art. 98(1).

74 I. Papanicolopulu, ‘The duty to rescue at sea, in peacetime and in war: A general overview’, (2016) 98(2) International Review of the Red Cross, at 493.

75 Ibid., at 495; A. Papachristodoulou, ‘Mediterranean Maritime Migration: The Legal Framework of Saving Lives at Sea’, (2020) 20 University College Dublin Law Review 87, at 90–2. This is supported also by the Salvage Convention, supra note 71, Art. 10.

76 Attard, supra note 51, at 44. Flag states should seek to ensure compliance with the relevant rules of rescue. Also, the obligation is often incorporated into the criminal law of flag states. However, Jean-Pierre Gauci has highlighted that in practice, incidents involving failure to rescue persons in distress are unlikely to be prosecuted by flag states or any other state that may exercise some form of jurisdiction. See J. Gauci, ‘When Private Vessels Rescue Migrants and Refugees: A mapping of Legal Considerations’, British Institute of International and Comparative Law, 24 November 2020, available at www.biicl.org/documents/124_private_vessels_research.pdf.

77 For similar questions posed see T. Hayward, ‘On Prepositional Duties’, (2013) 123(2) Ethics 264.

78 UNCLOS, supra note 50, Art. 98(2).

79 Attard, supra note 51, at 57; SOLAS, supra note 70, Ann. Ch. V, Reg. 7.

80 SOLAS, supra note 70, Ch. V, Reg. 7.1. See also further discussion by Papanicolopulu, supra note 74, at 499.

81 Trevisanut, supra note 51, at 13.

82 Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment of 9 April 1949, [1949] ICJ Rep. 4.

83 E. Papastavridis, ‘The European Convention of Human Rights and Migration at Sea: Reading the “Jurisdictional Threshold” of the Convention under the Law of the Sea Paradigm’, (2020) 21(3) GLJ 417, at 431.

84 A.S. case and others v. Italy, supra note 3, para. 8.3. See also Y. Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law’, (2013) 7(1) Law & Ethics of Human Rights 47, at 65.

85 V. Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control – On Public Powers, S.S. and Others v. Italy, and the “Operational Model”’, (2020) 21(3) GLJ 385, at 401.

86 For a discussion on the scope of protection and the underlying aim of prevention of human rights violations, see D. Xenos, The Positive Obligations of the State under the European Convention on Human Rights (2011), at 97–8.

87 R. Collins, ‘An “Outlaw Ocean” or “Lawless” Space? Revisiting High Seas Regime Under (and after) UNCLOS 1982’, forthcoming in K. Siig, F. Billing and B. Feldtmann (eds.), UNCLOS as a system of regulation – an exploratory and methodological study (2021), available at www.academia.edu/44302588/An_Outlaw_Ocean_or_Lawless_Space_Revisiting_the_High_Seas_Regime_under_and_after_UNCLOS_1982.

88 T. E. Aalberts and T. Gammeltoft-Hansen, ‘Sovereignty at Sea: the Law and Politics of Saving Lives in Mare Liberum’, (2014) 17 Journal of International Relations and Development 439, at 459–60.

89 See Medvedyev and others v. France [GC], Appl. no 3394/03, Judgment of 29 March 2010, ECHR; Hirsi Jamaa and others v. Italy, Appl. no 27765/09, Judgment of 23 February 2012, ECHR.

90 Tasioulas, supra note 15, at 77.

91 Ibid.

92 Ibid., at 81.

93 Ibid., at 77. For similar analysis see T. S. Bulto, The Extraterritorial Application of the Human Right to Water in Africa (2003), at 90.

94 E. Vayena and J. Tasioulas, ‘The dynamics of big data and human rights: the case of scientific research’, (2016) 374 Philosophical Transactions of The Royal Society A 1, at 5.

95 Tomalty, supra note 65, at 4.

96 L. C. Becker and B. B. Becker (eds.), Encyclopedia of Ethics (2001), at 855.

97 Tasioulas, supra note 15, at 92.

98 Sen, supra note 59, at 319.

99 Ibid.

100 S. Benhabib, Another Cosmopolitanism (2006), at 31.

101 Decken and Koch, supra note 8, at 12.

102 Ibid.; S. Benhabib, ‘Claiming Rights across Borders: International Human Rights and Democratic Sovereignty’, (2009) 103(4) American Political Science Review 691, at 699.

103 See Council of Europe, ‘The Evolution of Human Rights’, available at www.coe.int/en/web/compass/the-evolution-of-human-rights.

104 J. Waldron ‘Cosmopolitan Norms’, in S. Benhabib (ed.), Another Cosmopolitan (2006), 83, at 95.

105 K. Sikkink, Evidence for Hope: Making Human Rights Work in the 21st Century (2017); P. W. Kelly, ‘What is Hope for?’, Los Angeles Review of Books, 7 June 2018, available at lareviewofbooks.org/article/what-is-hope-for/.

106 Sikkink, ibid., at 15.

107 An example is the human right to water, which was recognized by the U.N. General Assembly. See 64/292. The human right to water and sanitation, UN. Doc. A/RES/64/292 (2010).

108 Sen, supra note 59, at 320. See also V. Tzevelekos, ‘The Making of International Human Rights Law’, in C. Brölmann and Y. Radi (eds.), Research Handbook on the Theory and Practice of International Law Making (2016), at 338.

109 K. Sikkink, The Hidden Face of Rights: Towards a Politics of Responsibilities (2020).

110 L. Mineo, ‘Feel that clean air and voting are human rights? It’s partly on you: Q&A Kathryn Sikkink’, 19 February 2020, available at news.harvard.edu/gazette/story/2020/02/new-book-calls-for-an-ethics-of-responsibility/.

111 Ibid.

112 O. Shatz and J.Branco, ‘Communication to the Office of the Prosecutor of the International Criminal Court: EU Migration Policies in the Central Mediterranean and Libya (2014-2019)’, 2009, available at www.Statewatch.org/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf.

113 ‘Europe People helping refugees and migrants risk jail as authorities misuse anti-smuggling laws’, Amnesty International, 3 March 2020, available at www.amnesty.org/en/latest/news/2020/03/europe-people-helping-refugees-and-migrants-risk-jail-as-authorities-misuse-anti-smuggling-laws/.

114 Medecins Sans Frontieres, ‘Saving Lives at Sea’, available at searchandrescue.msf.org.

115 The pending case of S.S. and Others v. Italy, Appl. no. 21668/18, 29 June 2019, ECHR, is a powerful example of their work. See generally ‘Migration and Border Violence’, Global Legal Action Network, 2020, available at www.glanlaw.org/migrationandborders.

116 J. Tasioulas, ‘Saving Human Rights from Human Rights Law’, (2019) 52 Vanderbilt Journal of Transnational Law 1167, at 1169.

117 Benhabib, supra note 100, at 31.

118 By virtue of the Assembly’s mandate under Art. 13 of the United Nations Charter. 1945 Charter of the United Nations, 1 UNTS XVI.

119 Demir and Baykara v. Turkey, Appl. no 34503/97, Judgment of 12 November 2008, ECHR, para. 146. The ‘living instrument’ doctrine which upholds this interpretative task was first articulated in Tyrer v. United Kingdom, Appl. no 5856/72, Judgment of 25 April 1978, ECHR, para. 31.

120 A. Boyle and C. Chinkin, The Making of International Law (2007); see also A. Peters, Beyond Human Rights: The Legal Status of Individuals in International Law (2016), 437–8.

121 I. Venzke, ‘Is Interpretation in International Law a Game?’, in A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in international law (2015), at 354 (citing Ludwig Wittgenstein, Philosophical Investigations (1958), 83).

122 I. Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (2012), 3.

123 Ibid., at 10.

124 Ibid.

125 Ibid., at 196.

126 Tzevelekos, supra note 108, at 388.

127 Statute of the International Court of Justice, 33 UNTS 993 (1945), Art. 38(1) provides the sources of international law.

128 For a thorough analysis on the practice of interpretation as a significant source of making international law see Venzke, supra note 122.

129 T. S. Bulto, ‘The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery?’, (2011) 12 Melbourne Journal of International Law 1, at 10.

130 See Osman v. United Kingdom, Appl. No 23452/94, Judgment of 28 October 1998, ECHR; McCann and Others v. United Kingdom, Appl. No 18984/91, Judgment of 27 September 1995, ECHR.

131 V. Stoyanova, ‘The Right to Life under the EU Charter and Cooperation with Third States to Combat Human Smuggling’, (2020) 21(3) GLJ 436, at 446.

132 S. I. Skogly, Beyond National Borders: State’s Human Rights Obligations in International Cooperation (2006), at 45.

133 Tzevelekos and Proukaki, supra note 52, at 460. On the question of extraterritorial human rights obligations, see, inter alia, M. Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’, (2008) 8(3) Human Rights Law Review 411; S. Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’, (2009) 20(4) European Journal of International Law 1228; D. Møgster, ‘Towards Universality: Activities Impacting the Enjoyment of the Right to Life and the Extraterritorial Application of the ICCPR’, EJIL!Talk, 27 November 2018, available at www.ejiltalk.org/towards-universality-activities-impacting-the-enjoyment-of-the-right-to-life-and-the-extraterritorial-application-of-the-iccpr/; V. Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’, (2012) 12(3) Human Rights Law Review 574; Shany, supra note 84; Papastavridis, supra note 83.

134 General Assembly, ‘Global Compact for Safe, Orderly and Regular Migration’, UN Doc. A/Res.73/195 (2018).

135 Ibid., at 17.

136 Ibid.

137 Ibid.

138 Decken and Koch, supra note 8, at 7.

139 Human Rights Committee, ‘General comment No.36, Article 6: right to life’, UN Doc. CCPR/C/GC/36 (2019).

140 Ibid., para. 63.

141 Ibid.

142 See also Human Rights at Sea, ‘The Right to Life: Italy found by UN in violation of the right to life of Migrants at Sea’, 28 January 2021, available at www.humanrightsatsea.org/2021/01/28/the-right-to-life-italy-found-by-un-in-violation-of-the-right-to-life-of-migrants-at-sea/.

143 S. Galani, ‘Port Closures and Persons at Sea in International Law’, (2021) 70(3) ICLQ 605, at 620; A.S. case and others v. Italy, supra note 3, para. 7.8.

144 A.S. case and others, ibid., para. 7.5, and Ann. 6, Individual Opinion of Vasilka Sancin (concurring), para. 3.

145 A.S. case and others, ibid., para. 8.5; A.S. case and others v. Malta, supra note 4, para. 6.7.

146 Hirsi Jamaa and others v. Italy, supra note 89, Judge Bonello (concurring), at 15; see also V. Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’, (2012) 12(3) Human Rights Law Review 574.

147 S.S. and others v. Italy, supra note 115. See also an analysis of the case by A. Pijnenburg, ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?’, (2018) 20(4) European Journal of Migration and Law 396; Papastavridis, supra note 83.

148 Shany, supra note 84, at 51. See also discussion by Egan, supra note 8, at 616–67, in particular see fn. 119; N. Krisch, ‘The Open Architecture of European Human Rights Law’, (2008) 71(2) Modern Law Review 183, at 213.

149 M. Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (2015), 480.

150 J. Gerards, ‘A Right of Access to Law – or Rather a Right of Legality and Legal Aid?’, in A. Von Arnauld, K. Von Der Decken and M. Susi (eds.), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (2020), 556.

151 Ibid.

152 A. Etinson, ‘Human rights, Claimability, and the Uses of Abstraction’, (2013) 25(4) Utilitas 463.