The Law of the Sea and Human Rights in the Hirsi Jamaa and Others v. Italy Judgment of the European Court of Human Rights

Nowadays, it seems that the age of the generalist is passing in international law. The teaching as well as the practice of international law is often broken down into specialist sub-fields such as the law of the sea and international human rights law. The fact that they have their own sources, their own mechanisms to apply in cases of non-compliance and their own courts and tribunals, creates the idea that that these ‘self-contained’ regimes are separate from general international law. As indicated by a study of the International Law Commission (ILC), this ‘fragmentation’ of international law generates the possibility of conflicting norms and regimes. It is sometimes suggested that for example the issue of how best to regulate migration by sea bears scars of a fragmentary approach to law-making. It has been put forward that the substantive content of the law of the sea has been isolated from potentially important humanitarian considerations. The law of the sea would therefore not be very susceptible to developments in international human rights. It is true that the law of the sea encounters many of the problems that arise when specialized sets of rules overlap, especially within the framework of the 1982 Law of the Sea Convention (LOSC). However, although it is unlikely that the LOSC – or the law of the sea more generally – will be accorded a central role in the history of the international law of human rights, it may be deserving of more than just a footnote. Indeed, the law of the sea, its instruments and institutions have not only a direct contribution to make to human rights law, but in some instances even prove to be sufficient to protect individual human rights. This idea will be the research question of this paper: would the law of the sea provide sufficient humanitarian guarantees to deal with the case Hirsi Jamaa and Others v. Italy (2012) in a way that the rights of the migrants would have been protected