Governing forced migration by sea: A legal perspective.

Forced migration by sea is certainly not a new phenomenon, neither a recent one. In human history people have repeatedly crossed the oceans in search of safer living conditions. However only in the past decades “boat migration” has been perceived by destination countries as a threat.

In the absence of a detailed legal regime, coastal States have adopted their own regulatory approaches, often in a self-serving manner, challenging the basis of their international obligations. We refer in particular to the European case and the recent policies adopted by EU Member States in order to counter migratory flows originating from North Africa. As the statistical evidence available shows, these flows are mainly composed of people coming from the Sub-Saharan area (such as from Darfur or the Great Lakes region), often fleeing persecution or situations of armed conflict.

For a better understanding of the phenomenon, we propose to organize a panel in which three specific topics will be examined in turn:

1.       Efthymios Papastavridis will analyse the extent to which the current law of the sea, as codified in the LOS Convention and related instruments, deals adequately with the phenomenon of forced migration by sea. Particular attention will be drawn to the provisions regarding shipping interdiction, the provision of assistance to vessels in distress as well as the obligation of search and rescue.

2.       Seline Trevisanut will focus on the interplay between the maritime conventions and the other relevant areas of international law applicable to the situation of refugees and asylum seekers at sea. The capital principle of non-refoulement and its legal and practical implications will be explored in depth.

3.       Violeta Moreno Lax will examine the role that the “regional solution” the EU is trying to implement in the Mediterranean plays in the administration of “boat people” flows. The impact of the recently established Agency for the Management of Operational Co-operation at the External Borders of the Member States of the EU, better known as Frontex, will constitute the main subject of her scrutiny.

Through this extensive analysis of the legal frame, we aim at detecting both the potentialities and shortcomings of the regime currently governing forced migration by sea, so that possible solutions and spaces for improvement may be identified.

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