해상이민자의 공해상 차단활동에 대한 국제법적 평가 - 이탈리아 사례를 중심으로 -

In 2015 alone, the so-called “Migrants At Sea” making perilous journeys across the Mediterreanean Sea for search of a safe place to live as reached over 1 million. European coastal States fear that if they perform search and rescue operations in accordance with Article 98 of the United Nations Convention on the Law of the Sea on the high seas, they will be subject to extraterritorial application of principles of human rights law, including the principle of non-refoulement, forcing them to accommodate these migrants in their own territory. This makes them reluctant to engage in active rescue operations for them, which leads to a legal lacuna in which migrants at sea are not offered any protection in international law. This Article aims at proving the existence of such a legal lacuna, and making suggestions under current international law to fill this lacuna. First, this Article points out that this legal lacuna exists because the extraterritorial application of human rights treaties generally depends on whether coastal States exercise physical control over the high seas, which means lack of action by these States would lead to a reduction in their obligations. This explains why Italy, a European state on the south edge of the continent which claims to suffer from extremely high flows of migrants at sea, has retracted on their previous practice of performing non-entree operations on the high seas with their own vessels and instead resorted to assisting countries of origin, such as Libya, in performing their own ‘migration control operations’. This Article claims that it is difficult to put Italy under the auspices of international human rights law in the latter situation, and suggests resorting to the rules of ancillary responsibility to fill this gap.