‘Le vent nous portera’: Rescue and Confinement at Sea under Human Rights Law

As a response to the pandemic, sea-rescue operations in the Mediterranean have either come to a halt or have been perilously delayed. Since then, policies of port closure and semi-closure have been undertaken under different forms. Nevertheless, States have an obligation to assist ships’ masters in delivering any shipwreck to a place of safety, even in times of COVID-19 or any other public emergency. This article explores whether State responsibility under international human rights law might be engaged whenever rescuing boats are compelled to lengthy standoffs with no coastal State allowing disembarkation. Therefore, in discussing the interim measures issued by the European Court of Human Rights (ECtHR) in cases of prolonged confinement at sea – following port closures and refusals of a place of safety – it suggests that the ECtHR should have ordered disembarkation of all shipwrecked onboard. Indeed, the actual conditions of migrants and asylum-seekers compelled to exhausting and unlawful standoffs at sea, in addition to their precarious physical and mental health, may amount to inhuman and degrading treatment and to a de facto deprivation of personal liberty under Articles 3 and 5 of the European Convention on Human Rights (ECHR). While contesting the increasing use of a language of ‘crisis’ and the recent ‘practical and effective’ approach of the Court of Strasbourg, aimed at preventing ‘foreigners [including asylum seekers] circumventing restrictions on immigration’, this article concludes highlighting the risks of such an approach, thereby exhorting the Court to challenge what may become a perpetual (rather than exceptional) emphasis on a migration crisis.