Malta and the Rescue of Unwanted Migrants at Sea: Negotiating the Humanitarian Law of the Sea and the Contested Redesigning of Borders

Abstract

In recent decades, the margins of Europe’s Mediterranean region have gone through enormous changes: national borders previously taken for granted have become contested external borders of the European Union (EU). Effects of the relocation of borders and of the European refugee protection system have been especially strong around the Mediterranean Sea: in particular, gaining access to the refugee protection systems of the EU has become increasingly difficult for these refugees. Responsibilities are particularly uncertain where a state is engaged in joint operations, in operations in the territorial waters of another state, or in operations on the high seas. Dilemmas also arise when migrants are rescued from shipwrecked boats. The legal responsibilities to rescue migrants at sea should be clear, but the actions taken vary according to which Search and Rescue Area (SAR Area) the shipwreck occurs in. In the Mediterranean Sea, the policies of border control and the right of sovereign states to control their territory clash with the claims of a functioning European refugee protection system and with some aspects of the humanitarian law of the sea.

A previous version of this article has been published in International Journal of Refugee Law, 23 (2011), 3, pp. 538–557. Permission for an updated reprint has been kindly provided by Oxford University Press.