Preventing Rescue of Maritime Migrants

Sammanfattning: Eighteen of twenty-five rescue-vessels operated by NGOs in the Mediterranean has been subjected to administrative or criminal sanctions. Whether rescue amounts to a crime is the basis for this thesis, which examines the intersection between prevention of the transnational crime of smuggling, and the rescues often necessary when smugglers facilitate journeys across the sea. Assistance at sea is revealed to be both an international duty of states and shipmasters and, in contemporary EU law, a criminal offence. The EU law on migration, asylum and border control constructs a system which forces migrants to travel irregularly in order to enter the union, while at the same time employing increasingly strict border control measures to deter irregular arrivals and combat the crime of smuggling. The deterrence and securitisation of EU border policy has severe effects on NGOs who work proactively to save lives. They are policed and criminalised through a range of measures, all preventing them from conducting search and rescue (SAR). This thesis examines this development through a detailed examination of both the law on SAR, EU law against migrant smuggling, and the laws regulating entry into the union. The thesis concludes that this system of deterrence of migrants and prevention of voluntary assistance derives from a lack of functioning responsibility-sharing in the EU, incentivising states to prevent arrival in all forms. This is further analysed through the theory of the ‘maritime legal black hole’, revealing how the systematic prevention of rescue keeps the maritime migrant in a state of rightlessness created by the international legal framework. The prevention of assistance does not aggravate the rightlessness but shifts the unintentional nature of the black hole to a, if not intentional, predictable one.