Published in January 2019.

 

 
  This module is a resource for lecturers  

 

Positive and negative obligations of the State

 

From a legal perspective, rights amount to powers that a person holds and may be imposed vis-à-vis other persons. The State is required to make sure individuals' rights, as recognized by law, are respected, protected, fulfilled and, when necessary, enforced. At the same time, the State is bound to abide by a series of obligations to ensure, protect and promote human rights. Of course, the law is not always translated into practice. There are cases where individual rights are not respected or are even intentionally violated. In such instances, the responsibility of the State is activated and, in line with the principle of the rule of law, legal procedures may be lodged against the State (see ' Access to justice and to an effective remedy').

State obligations (for the breach of which they may be held accountable) may be distinguished into positive and negative obligations.

  • Positive obligations require national authorities to act; that is, to take necessary measures to safeguard a right or, more precisely, to adopt reasonable and suitable measures to protect the rights of the individual. Such measures may be judicial (for example, where the State is expected to enforce sanctions against public officials who abuse their power in the treatment of smuggled migrants). They may also be of a more practical nature. One example would be measures taken in places of detention to prevent smuggled migrants from committing suicide or harming themselves or others. In summary, positive obligations are, broadly speaking, obligations "to do something" to ensure respect and protection of human rights.
  • Negative obligations refers to a duty not to act; that is, to refrain from action that would hinder human rights. For instance, by not returning smuggled migrants to countries where they face risks of persecution, the State will be abiding by the corresponding negative obligation. Importantly, the fulfilment of a negative obligation might very well require positive action. This may include adoption of laws, regulations and standard operating procedures that prohibit push back policies of migrant smuggling vessels found close to the State's maritime border.
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Accountability Gap: OHCHR report on the situation of migrants in key entry and transit location in Europe

There was also an increase in anti-migrant sentiment in all locations visited by the [ OHCHR] team. A growing number of high-level officials, members of parliament, politicians, and in some cases members of the clergy also engaged in xenophobic discourse, sometimes amounting to incitement to hatred. The teams found that the largely unchallenged political and social discourse picturing migrants as threats, describing them as "illegal" or "criminals", and stoking public fear, was a clear driver of the physical and verbal abuse faced by migrants. Left unaddressed, this further contributed to signalling that violence against migrants was somehow justified.

OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017)

Interception operations and identification procedures are instances in which States must pay particular attention to human rights. Rights must be respected during law enforcement measures aimed at preventing and suppressing migrant smuggling. In this respect, it is worth noting the conclusions drawn by UNHCR:

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  • The State within whose sovereign territory, or territorial waters, interception takes place, has the primary responsibility for addressing any protection needs of intercepted persons.
  • Interception measures should take into account the fundamental difference, under international law, between those who seek and are in need of international protection, and those who can resort to the protection of their country of nationality or of another country.
  • Interception measures should not result in asylum-seekers and refugees being denied access to international protection or result in those in need of international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground, or where the person has other grounds for protection based on international law. Intercepted persons found to be in need of international protection should have access to durable solutions.
  • Intercepted persons who do not seek or who are determined not to be in need of international protection should be returned swiftly to their respective countries of origin or other country or nationality of habitual residence and States.
  • All persons, including officials of a State and employees of a commercial entity, implementing interception measures should receive specialized training, including available means to direct intercepted persons expressing international protection needs to the appropriate authorities in the State where the interception has taken place, or, where appropriate, to UNHCR.
Conclusion of the UNHCR Executive Committee protection safeguards in interception measures (2003), Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 12A (A/58/12/Add.1), chap. III, sect. D.

Likewise, the special vulnerabilities of women and children (article 16(4) of the Protocol against the Smuggling of Migrants) including, in particular, unaccompanied and separated minors, should be duly assessed in the design and implementation of support programmes. In doing so, it is important to consider discriminatory norms and practices that might enhance the vulnerability of such individuals. This is applicable before migrants are smuggled, during the smuggling process and afterwards in the country of destination, when the smuggled migrant is living in the community as an irregular migrant, in the custody of the destination State and/or when he or she is returned to the State of origin.

By the same token, the implementation of the principle of non-refoulement will require the adoption of both legislative and practical measures (including , inter alia, trained professionals and a robust review procedure of individual claims).

As highlighted in Module 1, migrant smuggling by sea relies on very specific modus operandi. At this stage, it is important to emphasize that whenever life is endangered at sea, State officials must assign priority to protecting the lives and safety of migrants, rather than law enforcement objectives. Article 8(5) of the Protocol against the Smuggling of Migrants reflects this duty of rescue by stipulating that States parties shall take no additional measures without the express authorization of the flag State, "except those necessary to relieve imminent danger to the lives of persons or those which derive from relevant bilateral or multilateral agreements". The obligation to rescue persons in distress at sea is well established under international law. In addition to article 98 of the United Nations Convention on the Law of the Sea, it is further stipulated in the International Convention for the Safety of Life at Sea. The International Convention on Maritime Search and Rescue mandates that States parties " ensure that assistance be provided to any person in distress at sea … regardless of the nationality or status of such a person or the circumstances in which that person is found" and " provide for their initial medical or other needs, and deliver them to a place of safety" (Chapters 2.1.10 and 1.3.2).

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[T]he rescue of persons in distress at sea is not only an obligation under the international law of the sea but also a humanitarian necessity, regardless of who the people are or what their reasons are for moving (…) [M]easures to combat smuggling and trafficking of persons must not adversely affect the human rights and dignity of persons and must not undermine international refugee protection responsibilities.

Report of the Office of the United Nations High Commissioner for Refugees on the treatment of persons rescued at sea: conclusions and recommendations from recent meetings and expert round tables convened by the Office of the United Nations High Commissioner for Refugees (2008), paras. 9 and 47
 
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