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The flow of ‘boat migration’ across the world’s oceans involves the intersection of different formal agreements: the LOSC, the Safety of Life at Sea Convention, the Search and Rescue Convention, and the Migrant Smuggling Protocol. The scale of boat migration has prompted a series of informal agreements, including the 2004 Guidelines on the Treatment of Persons Rescued at Sea, and an agreement between the EU and Turkey. In addition, individual countries have pursued informal agreements with diverse actors, such as the code of conduct between Italy and the non-governmental organizations undertaking rescues in the Mediterranean. This chapter examines the use of informal lawmaking in response to migration flows across the Mediterranean. It assesses informal acts in formal settings, and informal acts by informal actors, finding that informal lawmaking provides an easier way out of the system of international law for states, but an easier way into the system for non-state actors.

This chapter aims at outlining trends and challenges relating to the somewhat elusive notion of national security and its troubled relationship with human rights, arguing that, instead of being necessarily seen as “inherently opposed” in the interests they pursue, the two should be looked at from a different perspective and reconciled. The chapter first illustrates the reasons behind the need to revisit the very notion of national security itself and to reinterpret the State’s role and the corresponding limitations to its powers. The subsequent section makes the case for the necessity to depart from a merely State-centred interpretation of security, flagging-through the analysis of specific cases-that the assumption that the State is always a benign entity, whose interests are worth protection no matter what, may be tragically wrong. The State can actually be the “villain of the piece”, often in the very (abused) name of national security and thus it should not be given carte blanche. Along these lines, the chapter then recounts instances where the “national security card” has been played by governments, unravelling the dangers entrenched therein and reaffirming the need to remain vigilant in order to avoid creating loopholes in the protection of human rights, which would ultimately endanger security, rather than protecting it. Section 5 of the chapter emphasises the importance of detecting and firmly rejecting recurrent attempts at relativizing-often in the name of national security-the absolute prohibition of torture. Finally, some conclusions are offered to answer the question underlying the entire chapter, which remains both a recurrent trend and a challenge in international law: “what does a State truly secure make”?.

The recent practice (i.e. the conflicts in Syria and Yemen) shows that civilians are very often intentionally starved by the belligerents, often on the basis of mere suspicion that being a part of the civilian population means that they would sympathize with a belligerent. This is in sharp contrast with the normative body prohibiting the tactics of starvation of the civilian population as a method of war, provided for in the 1977 Geneva Protocols and by customary law. The attention of this chapter will focus on how this method of war is put into practice, through the destruction of objects indispensable for the survival of the civilian population and of siege warfare. An interesting development around this issue is the amendment of the International Criminal Court Statute, introducing the crime of starvation of civilians in non-international armed conflicts; and UN Security Council (UNSC) Resolution 2417 (2018), in which the UNSC stressed for the first time, in general terms, the direct impact of armed conflicts on food security.

International environmental law is rightly perceived as one of the most challenging fields for the secondary rules governing State responsibility. In particular, the conditions for establishing how the critical obligation of States to prevent environmental harm has been breached remain rather obscure. The Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the UN ILC in 2001, do not help to clarify the issue of whether preventive commitments of States in the field of environmental protection can be classified as obligations of conduct, of result, or otherwise. Considering the poor conceptualization of the matter in the ILC Articles, very little can be expected from the test of judicial application to which the same Articles are currently submitted. Nonetheless, recent international case law in environmental matters reveals that international judges are inclined to rest on the qualification of the States’ obligations to prevent environmental harm as one of conduct or of due diligence and to elaborate about the conditions governing the breach of such obligation. The present contribution aims at revisiting the issue of the breach of the obligation to prevent environmental damage in light of recent international case law and to assess its relevance for the process of the codification of State responsibility.

Protection and preservation of the marine environment is a priority under international law, as codified and further developed in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Nonetheless, the current state of the marine environment questions whether the approach adopted in the UNCLOS and other legal instruments, whereby each type of pollution is addressed separately, really suffices to ensure good environmental status. For this reason, new tools have been developed, including marine (or maritime) spatial planning (MSP) and integrated coastal zone management (ICZM). This article discusses MSP and its role in ensuring protection of the marine environment, both within and beyond areas under national jurisdiction.

This chapter analyses due diligence obligations in law of the sea instruments, particularly in the 1982 United Nations Convention on the Law of the Sea. It demonstrates the linkage between general principles, their application to non-state actors via the due diligence obligations of states, and their eventual transformation into binding detailed technical standards, such as the ones incorporated in maritime safety conventions. The chapter advances an integrated reading of due diligence rules in the law of the sea and argues that increased reference to technical standards would facilitate their application in practice. Following a review of two advisory opinions—one of the International Tribunal for the Law of Sea and one of its Seabed Disputes Chamber—the chapter finally contextualises its core findings within the broader debate on the legal nature of due diligence and its primary or secondary character.

Non-state actors will play an importante role in the future governance of oceans and coasts under climate change. The scope for participation of non-state actors in international fora is context specific. Different international institutions may be open to different categories of actor, whether civil society or industry representatives. The UNFCCC and International Maritime Organisation take an inclusive approach to participation. However, treaty-making powers are generally tightly in the hands of states, with non-state actors participating, at best, as observers, or through lobbying activities. Non-state actors generally have no voting rights in international fora governing climate and oceans issues and therefore do not formally participate in the formation of treaties. Litigation presents a new opportunity for non-state actors to engage with climate issues, in particular by ensuring protection of the human rights of the individuals and groups affected by climate change.

Le operazioni di ricerca e soccorso condotte da organizzazioni non governative (ONG) hanno contribuito in maniera significativa a prevenire le morti in mare di migranti irregolari che attraversano il Mediterraneo. A fronte di tale impegno, tuttavia, il diritto internazionale regola la materia solo attraverso norme generali, che non sono state pensate per questo tipo di situazione. L'articolo ricostruisce le norme esistenti applicabili alle operazioni di ricerca e soccorso in mare e valuta la loro capacità di applicarsi ai casi di ricerca e soccorso di migranti irregolari condotte da ONG. Dopo aver esaminato i recenti tentativi di redigere codici di condotta, l'articolo conclude con un invito a perseguire la regolazione in una sede istituzionale internazionale., Search and rescue operations conducted by non-governmental organizations (NGOs) have contributed significantly to the prevention of death at sea of irregular migrants crossing the Mediterranean Sea. Notwithstanding this commitment, international law regulates this instance only through general norms, which have not been developed having this situation in mind. The article reconstructs the applicable legal framework that applies to search and rescue operations at sea and evaluates their capacity to apply also to cases of search and rescue of irregular migrants conducted by NGOs. Following the examination of recent efforts to develop codes of conduct, the article closes with a call to pursue regulation at the international institutional level.

The depletion of marine living resources and the need for their conservation are among the most pressing tasks faced by international law of the sea. While the failure to properly manage marine living resources may be due to States’ lack of will to take appropriate conservation measures, structural limitations of existing rules of international law and conceptual narratives about nature foster harmful and unsustainable behaviours. This chapter builds on feminist post-humanism to unpack disciplinary assumptions about nature that underpin international law, and offers a critical analysis of the legal system surrounding marine living resource management. The chapter argues that international law of the sea is structured in a way that systematically reinforces patters of environmental degradation, for its genealogy rests on the concepts of anthropocentrism, androcentrism and epistemological mechanisms of exclusion whereby certain humans and the natural ecosystem are systematically disadvantaged. The chapter discusses the legal foundations of the law of the sea framework and analyses the most relevant international instruments and integrative approaches governing marine living resources management. In relation to the latter, the chapter queries whether the ecosystem approach could aptly represent a trope for a posthumanist manifesto in the international law of the sea.

The chapter provides an introduction into the topic of the book. It contextualises its content within the wider discussion of gender equality and the role of international law in ensuring this objective, as well as within feminist approaches to international law, and identifies the principal practical and conceptual issues at the basis of any discussion on the relationship between gender and the law of the sea. The chapter also provides a brief overview of the different chapters and their linkages, illustrating the manifold ways in which gender and the (law of the) sea interact. On this basis, the chapter argues that gender is relevant in assessing the current content of this branch of international law, both as a parameter against which to assess the extent to which existing law of the sea rules on the treatment of individuals comply with the objective to ensure gender equality and the empowerment of women, and as a lens through which to undertake a critical examination of the entire structure of the law of the sea and concludes that there is nothing in the law of the sea provisions to bar such an examination.

In Gender and the Law of the Sea a distinguished group of law of the sea and feminist scholars critically engages with one of the oldest fields of international law. While the law of the sea has been traditionally portrayed as a technical, gender-neutral set of rules, of concern to States rather than humans, authors in this volume persuasively argue that critical feminist perspectives are needed to question the underlying assumptions of ostensibly gender-neutral norms. Coming at a time when the presence of women at sea is increasing, the volume forcefully and successfully argues that legal rules are relevant to ensure gender equality and the empowerment of women at sea, in an effort to render law for the oceans more inclusive.

The duty to rescue persons in distress at sea is a fundamental rule of international law. It has been incorporated in international treaties and forms the content of a norm of customary international law. It applies both during peacetime and during wartime, albeit with the necessary adjustments to take into account the different circumstances. States are also under the duty to provide search and rescue services. This article discusses the content and limitations of these provisions and assesses their potential to ensure the protection of human lives at sea. Furthermore, the article suggests that reference to the right to life, as protected in international human rights law, may be useful in further safeguarding human life and ensuring compliance by States with their duties.

This is a book about how international law can be used to ensure a better protection of people at sea. The fundamental premise of the book is that international law provides numerous structural, procedural, and substantive rules that can be used towards this aim. These particular rules derive primarily from international human rights law and the law of the sea, as well as from other fields of international law, including maritime law, labour law, and refugee law. The book discusses in depth how these rules regulate the scope of State duties towards people at sea, as well as how they affect the content of these duties, adapting generic human rights requirements to the special nature of the marine environment. All of these rules can be conceptualized as a sui generis special regime of international law, the overarching principle of which is the duty of States to protect people at sea and to adopt all necessary acts with a view towards ensuring enjoyment of their rights. This novel approach advocates a systemic reading of international law and advances the proposal that a new regime is emerging in this area. Using insights from theories of conflict of norms and regime interaction, it presents an analytical framework within which to examine the relationships between different rules of international law, expounding the conceptual potential of thinking in terms of regimes and in terms of the system and the ability of international law to produce countless functional legal regimes.

The article consider the evolution of the concept of "considerations of humanity" and its use by the International Tribunal for the Law of the Sea in order to fill gaps in the current international legal regime applicable to humans at sea and ensure their protection. Particular attention is devoted to the Enrica Lexie case, drawing lessons from the use of "considerations of humanity" in a case that, for the first time, opposes the rights of the two parties, instead of the rights of one party only.

This chapter proposes to sketch the legal framework concerning jurisdiction of States over people at sea and to address some critical issues emerging from such examination. After briefly illustrating the complexities of jurisdiction at sea, the chapter will set out the basic principles and rules for determining which State has jurisdiction over persons at sea. This examination will concern rules of public international law allocating jurisdiction among States and will not deal with the jurisdiction of domestic courts to hear cases, except as far as this is a consequence of rules of public international law, nor with issues of solving conflicts of jurisdiction, these being settled by private international law. Building on these principles, it will address some critical issues that need to be explored, pointing towards fields where a doctrinal elaboration or a legislative intervention would be desirable. Finally, and since establishing jurisdiction is just the prelude to further rights or obligations, it will briefly present, by way of conclusion, some considerations on the consequences that the existence of jurisdiction has for States.

Notwithstanding their traditionally separate treatment, human rights law and the law of the sea have recently started to interact in a number of cases involving individuals at sea and the protection of their rights. Starting from this premise, the chapter reviews the contribution of international courts and tribunals to the harmonisation of these two, apparently distant, fields of international law. As the chapter shows, harmonisation has been achieved through the concept of “considerations of humanity” developed by the ICJ and the ITLOS, as well as through the adoption by human rights courts of notions of jurisdiction deriving from law of the sea to define the scope of human rights treaties

The Chapter looks into the existing legal framework purposing to protect fishers from the multiple dangers and threats to which they are exposed. It analyses the dedicated Work in Fishing Convention (ILO C188), as well as other treaties. Potentially applicable norms are then assessed. The Chapter rounds up discussion identifying criticalities and highlighting room for improving the existing legal regime.

The article summarises the judgment of the European Court of Human Rights in the Hirsi Jamaa v Italy case and discusses its relevance under three profiles: definition of the concept of jurisdiction within human rights law; protection of migrants and asylum seekers; protection of human rights at sea