Irregular Migration by Sea: Interception and Rescue Interventions in Light of International Law and the EU Sea Borders Regulation

In: European Journal of Migration and Law
Enkelejda Koka Chair of Law and Humanities Department at University of New York Tirana Tirana Albania

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Denard Veshi Researcher at Minerva Center for the Rule of Law under Extreme Conditions, Faculty of Law and Department of Geography and Environmental Studies, University of Haifa Haifa Israel

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Since 2011, due to the Syrian civil war, Libya’s institutional breakdown and Eritrea’s political unrest, record high numbers of irregular migrants have been arriving at the EU’s south-eastern external borders, publicly known as the ‘Europe’s refugee crisis’. The most pressurised borders have been those of Greece and Italy. The human smuggler’s ‘organised refugee’ strategy has identified various legal issues resulting from the application of parallel legal frameworks both at regional and at international level. The EU Member States’ policy-making response to human smuggling has created loopholes through conflicting interpretations of the international legal framework on search and rescue and the inconsistent application of human rights law. Hence, this article will argue that although the International Convention on Maritime Search and Rescue (SAR) and the EU Sea Borders Regulation purportedly adopted to set out clear rules on when to initiate search and rescue, have not addressed the issue of responsibility for and the consequences of failed rescue scenarios by inactive SAR States; thereby creating a gap in the legal framework on State responsibility for negligent or intentional failed rescues.

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