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The Right to International Solidarity as a Game Changer when it comes to “Crimes of Solidarity”?

The article discusses whether there is a Right to International Solidarity that hinders the prosecution of “Crimes of Solidarity” in the context of (illegal) migration. The focus lies therefore on European and International Human Rights Law, the Facilitation Directive of the EU, UNCLOS and the Draft Declaration on the Right to International Solidarity. The notion “Crimes of Solidarity” refers to cases where private actors face judicial consequences for “doing good” (sea rescue, providing shelter, food and medical aid to migrants). As there is neither a right to enter a certain harbour nor a duty to let people disembark, a possible ground for justification might be the Right to International Solidarity, providing a right to help and to be helped. This could have the effect of excluding prosecution for these crimes of solidarity. The article analyses to what extent a Right to International Solidarity exists and thus might hinder the criminalisation of acts of solidarity. Under the current international and regional law there is no Right to International Solidarity, neither through treaty nor customary law. Nevertheless, the potential to become a game changer can be seen in its possible effects on the interpretation of other established (human) rights and international standards. Even though the UN Special Rapporteur on Human Rights and Solidarity’s “Draft Declaration on the Right to International Solidarity” cannot be qualified as soft law as long as it is not adopted by the General Assembly, it can nevertheless serve as a starting point for necessary discussions in the decriminalisation of solidarity.