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Law of the Sea and Migration: Authority
and Responsibility of Stakeholders,
Rescue at Sea and Stowaways
Vita Onwuasoanya
Associate Ocean Affairs and Law of the Sea Officer
DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA
Office of Legal Affairs, United Nations
Mixed migration
Mixed migration
Movements of
people increasingly
mixed: asylum
seekers & refugees;
trafficked/ smuggled
persons; migrants
Similar routes
Similar modes of
transport
Migration Flows
Stakeholders
Flag States
States of Origin
Transit States
States of Destination or disembarkation
Migration by sea
Outline of Presentation
Law of the sea
Rescue of persons in distress at sea
Trafficking and smuggling by sea
Interception/Interdiction at sea
Stowaways
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
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
Limits of maritime zones
Territorial Sea
Sovereignty of a coastal State extends beyond its
land territory and internal waters to an adjacent belt
of sea: the territorial sea.
Breadth: up to 12 nautical miles, measured from the
baselines.
Entitlement: inherent part of the territory of a coastal
State- Legislative and enforcement jurisdiction
Scope: sea; air space; seabed; and subsoil.
Innocent passage through territorial sea
Foreign ships have the right of innocent passage
through the territorial sea of a coastal State
(article 19):
Continuous and expeditious passage through
territorial sea or to/from internal waters
Subject to certain laws of coastal State (eg
prevention of infringement of customs, fiscal,
immigration or sanitary laws)
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)
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)
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.
EEZ (cont.)
A coastal State has certain sovereign rights, including:
 Exploring and exploiting, conserving and managing
natural resources, whether living or non-living
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
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
High seas are not subject to the jurisdiction of any State
Open to all States, whether coastal or land-locked
High seas are reserved for peaceful purposes
Freedoms of high seas include navigation (article 87)
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:
 Piracy
 Unauthorized broadcasting
 Slave trading
 Illicit drug trafficking
 Ships without nationality
 Ships hiding real nationality
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
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 (eg 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
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
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
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
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.”
.
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…”
Coastal States required to establish search and
rescue services to ensure safety of navigation around
its coast
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
Rescue Coordination Centres and Rescue Subcentres
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)
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
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
IMO Guidelines on the Treatment of
Persons Rescued at Sea
Non-binding IMO Guidelines provide guidance to
Governments and shipmasters
Rescue Coordination Centre to obtain information from
the master of the assisting ship
Shipmasters should seek to ensure that survivors are not
disembarked to a place where safety would be
jeopardized
Guidance on a “place of safety”
Non-SAR considerations, e.g. status of survivors; security
or law enforcement concerns
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/WP.10/Add.1- draft report)
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
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
Smuggling Protocol
Safeguards when action 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
Smuggling Protocol
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 Refugee Convention and its Protocol and
the principle of non refoulement
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
Reported Incidents (IMO)
2009:
 Total reported incidents: 381
 Total number of migrants: 9057
 Middle East- 5266; Africa- 1372; Asia-47; Europe-34
No comprehensive statistics available, only what is reported
to IMO.
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
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 shipowner 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”
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
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
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
International forums
General Assembly of the United Nations
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
General Assembly
Annual resolutions on oceans and the law of the
sea
Resolution 64/71 (2009):
Paras. 103-106 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
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