The Right to Seek Asylum in law of the sea

If people rescued at sea make known a claim for asylum, key principles as defined in international refugee law need to be upheld.

The 1951 Convention relating to the Status of Refugees, defines a refugee as a person who:“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his [or her] nationality, and is unable to or, owing to such fear, is unwilling to avail himself [or herself ] of the protection of that country”. (Article 1A(2)) It further prohibits that refugees or asylum-seekers “… be expelled or returned in any way “to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.” (Article 33 (1)). The scope of the principle of non-refoulement has a larger scope in the field of Human Rights Law. Indeed, it protects every person and not only the refugees and asylum seeker and the scope of its protection is larger. Human Rights prohibits every expulsion or refoulement to a country where the person is at risk of suffering torture, inhuman or degrading treatment, sometimes the execution of the death penalty and sometimes a grave denial of justice.

Despite these obligations, of which the applicability to the high seas has recently been reaffirmed by the European Court of Human Rights (ECHR) in the judgement on the Hirsi Jamaa and Others v. Italy case, State agencies have repeatedly operated “push-backs” – deporting intercepted migrants to countries in which their life could be in danger without allowing them file a claim for asylum.