75 Years of Progressive Legal Development by the International Law Commission:The Contribution to Regulation of Search and Rescue of Refugees and Migrants at Sea

Abstract

This doctrinal study examines how the work of the International Law Commission (ILC) has contributed to the 'progressive development' of general international law relevant to regulating rescue and disembarkation of refugees and migrants found at sea. The ILC's texts on interpretation and implementation of international obligations, state responsibility, fragmentation and harmonization of international law, and the status of certain principles of general international law, including jus cogens and general principles of law, and the principle of good faith, present legal parameters for the regulation of States and international cooperation that can assist in clarifying the applicable law for maritime search and rescue operations. In conducting its own doctrinal examinations of international law and gathering evidence of the practice of States and other actors in the international community, the ILC contributes by analysing, clarifying, and systemizing important topics of general international law. However, state implementation of international obligations in connection with the rescue of refugees and migrants frequently falls short of the legal interpretations of the ILC, particularly as they relate to respect for and protection of human rights at sea. Therefore, in addition to finding new strategies to directly connect with States and international organizations of States, the ILC remains reliant on the mutual following of national and international courts and tribunals, and its mutual contribution in scholarship, to encourage States to live up to binding commitments under international law.</p