Transcript Authorities and Responsibilities of Stakeholders, Rescue

Law of the Sea and Migration
Vita Onwuasoanya
Legal Officer
DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA
Office of Legal Affairs, United Nations
(Presented at UNITAR Course on IML, UN Headquarters, 15 June 2011)
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Mixed migration
Mixed migration
Movements of
people increasingly
mixed: asylum
seekers & refugees;
trafficked/ smuggled
persons; migrants
Similar routes
Similar modes of
transport
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Migration Flows
Note: no comprehensive statistics available, only what is
reported to IMO
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Migration Flows (cont.)
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Stakeholders
Flag States
States of Origin
Transit States
States of Destination or disembarkation
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Migration by sea: Outline of Presentation
Part I:
Law of the sea
Part II: Rescue of persons in distress at sea
Trafficking and smuggling by sea
Interception/Interdiction at sea
Stowaways
Part III: Challenges and International Fora
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Part I: Law of the sea
1982 United Nations Convention on the Law of the
Sea (UNCLOS)
Maritime zones under UNCLOS
Jurisdiction and duties of flag States
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Overview of UNCLOS
United Nations Convention on the Law of the Sea ,
adopted in 1982. Entered into force in 1994
“Constitution for the oceans” - legal regime
governing all ocean space
Balance struck in UNCLOS between competing
interests regarding the uses of the oceans and
resources of the oceans
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Limits of maritime zones
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Territorial Sea
Sovereignty of a coastal State extends beyond its
land territory and internal waters to an adjacent belt
of sea: the territorial sea (article 2)
Breadth: up to 12 nautical miles, measured from the
baselines (article 3)
Entitlement: inherent part of the territory of a coastal
State- Legislative and enforcement jurisdiction
Scope: sea; air space; seabed; and subsoil.
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Innocent passage through territorial sea
Foreign ships have the right of innocent passage through
the territorial sea of a coastal State (article 17):
 Continuous and expeditious passage through
territorial sea or to/from internal waters (article 18)
 Subject to certain laws of coastal State e.g.
prevention of infringement of customs, fiscal,
immigration or sanitary laws (article 21(h))
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Innocent passage through territorial sea
(cont.)
Passage of a foreign ship is innocent so long as it is not
prejudicial to the good order, or security of the coastal
State (article 19)
Passage considered to be prejudicial if foreign ship
engages in certain activities including:
 the loading or unloading of any commodity, currency
or person contrary to the customs, fiscal, immigration
or sanitary laws or regulations of the coastal State
Coastal State has right to take necessary steps in its
territorial sea to prevent passage which is not innocent
(article 25)
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Contiguous Zone
Maritime zone contiguous and seaward of the territorial
sea, from the outer limit of the territorial sea to up to 24
nautical miles, measured from the baselines.
Entitlement: the coastal State may proclaim it.
The coastal State may exercise the control necessary to
prevent and punish infringement of customs, fiscal,
immigration or sanitary laws within the territory or
territorial sea (article 33)
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Exclusive Economic Zone (EEZ)
The exclusive economic zone (EEZ) is an area beyond
and adjacent to the territorial sea (articles 55-58).
Breadth: from the outer limit of the territorial sea to up to
200 nautical miles, measured from the baselines.
Entitlement: the coastal State may proclaim it.
Scope: sea; seabed; and subsoil.
Freedom for all States of navigation and overflight;
obligation to pay due regard to rights and duties of the
coastal State (article 58 (1) and (3))
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Limits of maritime zones
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EEZ (cont.)
A coastal State has certain sovereign rights,
including:
 Exploring and exploiting, conserving and
managing natural resources, whether living or
non-living (article 56 (1)(a))
A coastal State has exclusive jurisdiction, including
regarding the establishment and use of artificial
islands, installations and structures over which it
may exercise jurisdiction including with respect to
customs, fiscal, health, safety and immigration laws
(article 56 (1)(b)
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High seas
High seas: parts of the sea which are not included in the
exclusive economic zone, in the territorial sea or in the
internal waters of a State, or in the archipelagic waters of
an archipelagic State (article 86)
Not subject to the jurisdiction of any State (article 87)
Open to all States, coastal or land-locked (article 87)
Reserved for peaceful purposes (article 88)
Freedoms of high seas include navigation (article 87)
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Maritime Zones (recap)
Territorial Sea: 12 nm from baselines
Contiguous Zone: up to 24nm from baselines
from which territorial sea measured
EEZ: up to 200 nm from baselines
High Seas: area of sea beyond outer limits of
EEZ
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Flag State jurisdiction
Every State has the right to sail ships flying its flag &
ships have the nationality of the flag flown (article 91)
Flag State has exclusive jurisdiction over ships on the
high seas (article 92).
Exceptions under UNCLOS include (article 110):
 Piracy
 Unauthorized broadcasting
 Slave trading
 Illicit drug trafficking
 Ships without nationality
 Ships hiding real nationality
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Flag State Jurisdiction (cont.)
Another exception to exclusive flag State jurisdiction right of hot pursuit (article 111):
 Violations by foreign ship of a coastal State’s laws in
internal waters or the territorial sea. Right also applies
in other zones in certain cases.
 Exercised by warships or military aircraft
 Pursuit must begin in internal waters, territorial sea,
the contiguous zone, EEZ
 Must give signal to stop
 Pursuit must be continuous
 Cease pursuit if pursued ship enters territorial sea of
another coastal State
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Duties of Flag States
Duties of the flag State (article 94):
Exercise effective control over ships flying its flag
Measures to ensure safety at sea
 Measures must conform with generally accepted
international regulations (e.g. IMO Conventions)
 The operation of substandard ships is not permitted
 Ensure that their vessels comply with international
law and not be used for illicit purposes
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Part II: Rescue of Persons in Distress at Sea
Overview
Legal regime relating to rescue of persons in distress
 Obligation to assist and rescue persons in distress
 Obligations in respect of disembarkation and delivery to a
place of safety
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Rescue of persons in distress at sea
Legal Regime
Obligation of masters of ships to render assistance to
persons in distress at sea is long-established maritime
tradition and obligation
A number of Conventions contain obligations to provide
assistance and to rescue:
 obligations of masters of ships, flag States, and
coastal States
Focus on UNCLOS and IMO Conventions and
instruments
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Duty to Render Assistance under Article 98 of
UNCLOS
Obligation of a master of a ship to :
 render assistance to any person found at sea in
danger of being lost
 proceed with all possible speed to the rescue of
persons in distress, if informed of their need of
assistance, in so far as such action may reasonably
be expected of him
Obligation applies in all maritime zones - the high seas,
territorial sea, EEZ and other zones
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Duty of Coastal States (search and rescue )
under Article 98 of UNCLOS
Obligation of coastal States to:
“promote the establishment,
operation and maintenance of
an adequate and effective
search and rescue service
regarding safety on and over
the sea and, where
circumstances so require, by
way of mutual regional
arrangements cooperate with
neighbouring States for this
purpose.” (article 98(2))
.
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International Convention for the Safety of Life
at Sea, 1974 (SOLAS)
Obligation of masters:
“The master of a ship at sea which is in a position
to be able to provide assistance, on receiving
information from any source that persons are in
distress at sea, is bound to proceed with all speed
to their assistance, if possible informing them or the
search and rescue service that the ship is doing
so…” (Chapter V, regulation 33(1)).
Coastal States required to establish search and
rescue services to ensure safety of navigation around
its coast (Chapter V, regulation 7)
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International Convention on Maritime Search
and Rescue, 1979 (SAR Convention)
International framework for search and rescue
operations worldwide
Objective: no matter where an accident occurs,
rescue will be coordinated by a SAR organization
and, when necessary, by cooperation between
neighbouring SAR organizations
Parties agree to be responsible for search and
rescue in specified areas (Annex, para.2)
Rescue Coordination Centres and Rescue Subcentres (Annex, para. 3)
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SAR Convention (cont.)
Obligation to provide assistance to any person in
distress at sea applies regardless of the nationality
or status of such a person or the circumstances in
which the person is found (paragraph 2.1.10)
Definition of rescue: an operation to retrieve persons
in distress, provide for their initial medical treatment
or other needs, and deliver them to a place of safety
(paragraph 1.3.3)
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2004 Amendments to SOLAS and SAR
Conventions
IMO review of the SOLAS and SAR Conventions. Object
of the review- take action to ensure that:
 survivors are provided assistance regardless of
nationality or status or the circumstances in which
they are found
 ships are able to deliver the survivors to a place of
safety
 survivors treated in accordance with relevant
international agreements and long-standing
humanitarian maritime traditions
Led to adoption of amendments, which entered into force
on 1 July 2006
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2004 Amendments to SOLAS and SAR
Conventions (cont.)
States to coordinate and cooperate to ensure that
masters of ships are released from their obligations with
minimum further deviation from the ship’s intended
voyage
The State responsible for the SAR region in which the
survivors were recovered has primary responsibility for
ensuring that such coordination and cooperation occurs,
so that survivors are disembarked and delivered to a
place of safety
Arrange for disembarkation from the assisting ship as
soon as reasonably practicable
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IMO Guidelines on the Treatment of
Persons Rescued at Sea (2004)
Non-binding IMO Guidelines provide guidance to
Governments and shipmasters
Rescue Coordination Centre to obtain information from
the master of the assisting ship (para.2.5)
Shipmasters should seek to ensure that survivors are not
disembarked to a place where safety would be
jeopardized (para. 6.17)
Guidance on a “place of safety” (paras. 2.5 and 6.12)
Non-SAR considerations, e.g. status of survivors; security
or law enforcement concerns (para. 6.20)
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Further IMO consideration of the treatment
of persons rescued at sea
IMO Facilitation Committee Circular (FAL.3/Circ.194) - Principles
relating to administrative procedures for disembarking persons
rescued at sea:
 Coordination between relevant national authorities
 Procedures after disembarkation to a place of safety, e.g.
screening and status assessment
 Coordination-if swift disembarkation elsewhere not possible, then
party responsible for SAR region should accept disembarkation of
persons rescued into a place of safety
 Cooperation to facilitate return or repatriation of persons rescued.
For asylum seekers, international protection principles should be
observed
Maritime Safety Committee also examining issue of disembarkation
Also consulting on further action to protect safety of persons rescued
at sea (MSC 87/26 paras. 14.18 and 14.19)
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Trafficking and Smuggling
United Nations Convention on Transnational
Organized Crime, 2000
Protocol Against the Smuggling of Migrants by
Land, Sea and Air, 2000
Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children, 2000
Trafficking vs smuggling
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Smuggling Protocol
States are required to cooperate to prevent and
suppress the smuggling of migrants, including by sea
(article 7)
A State party, other than the flag State, can board,
search or take other appropriate action against a vessel
suspected of being engaged in smuggling (article 8):
 Action must be authorized by the flag State, unless
necessary to take action to relieve imminent danger
States can take measures against ships without
nationality
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Smuggling Protocol (Safeguards)
Safeguards when action is taken to board and
inspect a vessel suspected of engaging in
smuggling include (article 9):
Action can only be taken by military warships or
other government ships or aircraft
Boarding State must ensure the humane
treatment of the persons onboard
The rights of the coastal State or the authority of
the flag State are not affected
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Smuggling Protocol (safeguards cont.)
Nothing is to affect the rights and duties of States
and individuals under international law, including
(article 19):
international humanitarian law
international human rights law and
the 1951 Convention relating to the Status of
Refugees and its Protocol, and the principle of
non refoulement
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IMO Interim Measures re: Trafficking and
Transport of Migrants
IMO Interim Measures for Combating Unsafe
Practices Associated with the Trafficking or
Transport of Migrants by Sea, 1998
Focus on preventing the operation of ships that
violate IMO Conventions regarding safety at sea by:
 preventing ships in port from sailing;
 intercepting ships on the high seas and in
EEZs
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Interception/Interdiction
Distinction between rescue and interception/interdiction
Concerns regarding preserving the legal framework
regarding rescue
Enforcement action must be taken in accordance with
international law of the sea and other applicable
principles of international law
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Stowaways
Definition of a stowaway:
“person who is secreted on the ship or in cargo which is
subsequently loaded onto the ship, without the consent of
the ship-owner or the master or any other responsible
person, who is detected on board after the ship has
departed from a port and reported as a stowaway by the
master to the appropriate authorities” (Annex, section1A)
 Total Stowaway Incidents (March to July 2010)= 66
involving 164 stowaways
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Stowaways (cont.)
IMO Convention on Facilitation of International
Maritime Traffic contains:
security measures for preventing stowaways; and
measures regarding the disembarkation of
stowaways
IMO Guidelines on Resolution of Cases of
Stowaways
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IMO Convention on Facilitation of International
Maritime Traffic
Cooperation to prevent stowaways from embarking
on ships
Stowaways on board ships must be treated fairly
and humanely
Masters must not deviate from the planned voyage
to seek the disembarkation of stowaways
discovered on board, except in certain cases
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Part III
Migration by sea- Challenges
Clandestine migration by sea
Situations of people in distress at sea & loss of life
Legal framework for search and rescue – participation
and implementation
Inadequate search and rescue facilities
Reported cases of delayed rescue
Problems with disembarkation of those rescued at sea
and finding a place of safety
Protection needs of asylum seekers & refugees
Origin and transit States – capacity to combat trafficking
and smuggling and stop unseaworthy boats from
departing from their shores
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International forums
General Assembly of the United Nations
- Open-ended Informal Consultative Process on Oceans
and Law of the Sea
International Maritime Organization
United Nations High Commissioner for Refugees
International Organization for Migration
Inter-agency group on the treatment of persons rescued
at sea. Includes: UNHCR, United Nations Office on
Drugs and Crime, Office of the High Commissioner for
Human Rights, International Labour Organization, IMO,
IOM, and DOALOS
EU maritime surveillance
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General Assembly
Annual resolutions on oceans and the law of the
sea
Resolution 65/37 A (2010):
Paras. 117-120 calls relating to Flag State
duties and search and rescue responsibilities
of all States
Para. 104- take effective action to address
unseaworthy ships and small craft within their
national jurisdiction
Para. 106- all States to continue to cooperate
in developing comprehensive approaches to
international migration and development
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Resources and further information
Reports of the Secretary-General on oceans and the law
of the sea available at
http://www.un.org/Depts/los/index.htm
IMO and UNHCR, “Guide to principles and practice as
applied to migrants and refugees”, available at
http://www.imo.org/Facilitation/mainframe.asp?topic_id=
1437
UNHCR, “Selected Reference Materials on Rescue at
Sea, Maritime Interception and Stowaways”, available at
http://www.unhcr.org/refworld/pdfid/45b8d8b44.pdf
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