Maritime Legal Black Holes: Migration and Rightlessness in International Law

Abstract

The article explores the trope of the “legal black hole” to reveal questions of legal theory arising from contemporary migrant drownings. The theme was popularized during what was then called the “war on terror,” but its trajectory is longer and more complex. Its material history, as well as its intellectual history within legal scholarship, suggest three distinct ‘legacies’ of legal black holes: the counter-terrorism legacy; the migrant-detention legacy; and the legacy of the maritime legal black hole. The tripartite division provides a typology of instances where persons are rendered rightless. While the two former types are characterized by de-facto rightlessness due to a violation of international law, the latter exposes a seldom-acknowledged yet crucial characteristic of international law: age-old doctrine on the division of responsibilities between states and individuals at land and at sea is now creating the conditions in which some people are rendered de-jure rightless. Moreover, the typology sheds light on the specifically legal reasons for the seeming failure to end mass drowning of migrants and refugees in the Mediterranean Sea. Tracing the ways in which people become de-jure rightless is ultimately suggested as a broader research agenda for scholars of international law.