Part II Maritime Security Law, 16 The Human Element of Maritime Crime: Stowaways, Human Trafficking, and Migrant Smuggling
From: The IMLI Manual on International Maritime Law: Volume III: Marine Environmental Law and International Maritime Security Law
Edited By: David Joseph Attard, Malgosia Fitzmaurice, Norman Martinez, Riyaz Hamza
- Migrants, rights — Non-refoulement — Migrants — Regional co-operation — Human trafficking — ae5ae3aa-6d71-1014-90bf-c1927c3ed365 — UNCLOS (UN Convention on the Law of the Sea)
Stowaways, Human Trafficking, and Migrant Smuggling
The contemporary understanding of maritime security goes beyond direct threats to national sovereignty. It has expanded significantly, thus placing a greater demand on the enforcement capacity of States and presenting a challenge which each State cannot counter alone.1 Uncontrolled movements of people, particularly, through migrant smuggling and (where international borders are crossed) trafficking in individuals, may be included in this group of threats to maritime security constituting threats to national sovereignty and to political and economic stability, aside from causing major disruption to national immigration policies and to the international protection framework as a whole.
Today’s security climate is typified by an increasing readiness of coastal States to exercise jurisdiction beyond their maritime zones. Apparent in various Conventions is the gradual extension of State jurisdiction. This evidences a new impetus in international lawmaking which further develops the concept of cooperation as the only tool by which current security threats can be effectively countered.2 Combating the transnational crimes of people smuggling and trafficking of individuals however, presents a challenge somewhat different to the fight against drug smuggling by sea, for instance. It compels States to consider principles other than mere (p. 492) policing and interdiction since at the core of the illicit activity lie persons on the move, therefore requiring consideration of issues of human welfare and dignity:
Discourses that include refugees and irregular migrants together with terrorists, saboteurs and drug traffickers as wholly undesirable, or categorise them merely as ‘a problem’ and ‘a threat’, ignore the complexities of the issue. It is not even accurate to regard people who are travelling on the high seas as having an ‘illegal migrant’ status. Until they cross into another state’s jurisdiction, they are subject to the jurisdiction of the state of their own citizenship and of the boat’s registration, and only become ‘illegal’ by definition of the receiving state’s controls.3
Therefore, precisely because human beings are involved, any response to these crimes must be focused on ensuring the protection of the trafficked or smuggled individual or stowaway. In this light, enforcement action against such threats must be built around human rights foundations. Responses must adopt a human-rights based approach, and not merely consider such principles as an addendum to the main response framework. The ‘human element’ is thus central to the repression of these crimes invoking respect for humanitarian and human rights considerations.
In its 1998 Note on International Protection, the United Nations High Commissioner for Refugees (UNHCR) noted the difficulties faced by States all too clearly:
States face considerable challenges as they try and reconcile their obligations under the [Refugee] Convention with problems raised by the mixed nature of migratory movements, misuse of the asylum system, increasing costs, the growth in smuggling and trafficking of people, and the struggle to manifest international solidarity to resolve the refugee situation.4
At the same time, States have security interests to protect and are entitled to take any action in accordance with international law, which will minimize the risk caused thereby. At once therefore, one confronts a number of increasingly pressing questions: How strong can a State’s border control be without infringing on human rights? How much protection can an immigrant be given without this impinging on the socio-economic fabric of society?5
A number of problems surround these considerations. Firstly, international human rights law does not address the crucial aspect of the implementation of the right to leave one’s country. Coupled with this, most reactions to people flows have been unilateral or at best, regional in nature. To date, States have been unable to address the concept effectively in the international context. Furthermore, the current legal regime as regulated by the United Nations Convention on the Law of the Sea 1982 References(p. 493) (UNCLOS)6 does not adequately cater for many of the current threats which plague the coastal State for the simple reason that ‘[t]he framers of the Convention never envisaged many of the crimes that exist today, and as a result either included only a general provision or none at all regarding their suppression’.7 Of course, vessels may be boarded in pursuance of the right of self-defence, or when authorized by the United Nations Security Council. However, on the high seas, save for a few exceptions, such as piracy and the slave trade, unauthorized broadcasting8 and the exercising of jurisdiction over stateless vessels,9 maritime interdiction or interception must be accompanied by flag State consent.10
This paper will seek to give an overview of the legal regime relevant to stowaways, migrant smuggling and trafficking in individuals. While the human element is a common thread which runs throughout all these, the latter two offences share a much closer connection since they constitute the subject of two of the three Protocols to the United Nations Convention against Transnational Organized Crime 2000 (CATOC).11 This link will be reflected in this contribution. Similarly, while certain elements are common to all three offences, others, such as rescue at sea and the problems of disembarkation, are more imminent and difficult to solve in cases of smuggling and trafficking, as shall be noted below. Consequently, the regime relating to stowaways shall be dealt with first, and the duties of States with regard to rescue at sea and State rights and powers under the law of the sea regime will be discussed in relation to migrant smuggling and trafficking in individuals. This joint consideration also reflects the IMO’s approach to dealing with these forms of organized crime, the focus being on combating unsafe practices associated with the trafficking or transport of migrants by sea.
References(p. 494) 16.2 Stowaways
It is the IMO which has spearheaded efforts with respect to the allocation of responsibility to enable the successful resolution of cases involving stowaways.12 With the International Convention relating to Stowaways 1957 (Brussels Convention 1957)13 not having come into force, it is the Convention on the Facilitation of International Maritime Traffic 1965 (FAL Convention)14 which has provided the legal regime regulating stowaways since 2002. In 2000, the IMO’s Facilitation (FAL) Committee agreed at its 28th session to introduce these provisions, consisting of both ‘standards’ and ‘recommended practices’.15 To this end, Resolution FAL.7(29) was adopted at the 29th Session of the FAL Committee which introduced a new Section 4 to the Annex of the FAL Convention, entering into force on 1 May 2003.
The provisions thereby introduced were heavily based upon an earlier IMO Assembly Resolution adopted on 27 November 1997, entitled ‘Guidelines on the Allocation of Responsibilities to See the Successful Resolution of Stowaway Cases’.16 However, it was later noted that ‘the parallel existence of the Guidelines and the FAL provisions on stowaways raised questions in relation to the procedures to be followed for dealing with stowaways by Member States which are also Contracting Governments to the FAL Convention’.17 The need was therefore felt to align these provisions and update them in a manner which reflected developments in the area. The Guidelines were consequently reviewed by the FAL and Maritime Safety Committees (MSC) with the result that the ‘Revised Guidelines on the Prevention of Access by Stowaways and the Allocation of Responsibilities to seek the Successful Resolution of Stowaway Cases’ were adopted by the MSC in December 2010.18 The FAL Committee adopted these Guidelines in September of the following year.19 Presently, these revised guidelines only apply in the case of References(p. 495) Member States which are not parties to the FAL Convention and also, to those Member States which, although parties to the Convention, have made notifications to the Secretary-General of the IMO in accordance with Article VIII(1) and Article VIII(3).
The Revised Guidelines contain the same basic principles as their predecessor. Indeed, the concern as to the serious consequences of incidents involving stowaways remains the same, being: ‘the consequent potential for disruption of maritime traffic, the impact such incidents may have on the safe and secure operation of ships and the considerable risks faced by stowaways, including loss of life’. Similarly, there is the recognition of the difficulty in resolving stowaway cases due to the number of States which are potentially involved in any one incident. A reading of the Revised Guidelines and also of the relevant provisions of the FAL Convention shows that the regime is characterized by two main elements, namely: the duty of cooperation in the prevention and expeditious resolution of stowaway incidents and repatriation or return of stowaways, and the necessity of humane treatment to all stowaways.
The duty of cooperation is fast becoming a fulcrum upon which rests any attempt to prevent and suppress threats to maritime security, among other issues of a transnational nature. The regulation and resolution of stowaway incidents is no exception, as noted in Article 4.2 of the Annex to the FAL Convention20 wherein it is stated that all stakeholders (including Masters, ship-owners, public authorities, port authorities, those providing security services ashore) ‘have a responsibility to cooperate to the fullest extent possible in order to prevent stowaway incidents and to resolve stowaway cases expeditiously and secure that an early return or repatriation of the stowaway will take place. Furthermore, all appropriate measures are to be taken in order to avoid situations where stowaways must stay on board ships indefinitely’.21 This notion of ‘shared responsibility’ has been described as the ‘core provision’ of the Section dealing with stowaways in the FAL Convention’s Annex.22
Also central to the resolution of stowaway incidents is the human treatment of stowaways, whether or not they also qualify as asylum seekers. Indeed, the provisions of Section 4 of the Annex are to be applied ‘in accordance with international protection principles as set out in international instruments’.23 The Article refers to the Refugee Convention 1951 and Protocol as References(p. 496) examples.24 Others are clearly also relevant, as is noted in the Explanatory Memorandum, which mentions for example, relevant provisions of the International Covenant on Civil and Political Rights 1966 (ICCPR)25 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984.26
Following Section B on Preventive Measures, the ‘Treatment of the Stowaway on Board’ is covered in relative detail. Aside from the necessity of treating the stowaway in accordance with humanitarian principles (4.4.1), there is also imposed the responsibility placed upon shipmasters to ‘take appropriate measures to ensure the security, general health, welfare and safety of the stowaway while he/she is on board, including providing him/her with adequate provisioning, accommodation, proper medical attention and sanitary facilities’ (4.4.2). Consideration is also given to the need for the shipmaster to treat as confidential any declaration of intent to seek asylum on the part of the stowaway (4.6.3). Stowaway asylum seekers have also been the subject of an UNHCR ExCom Conclusion27 recommending inter alia that:
Without prejudice to any responsibilities of the flag State, stowaway asylum-seekers should, whenever possible, be allowed to disembark at the first port of call and given the opportunity of having their refugee status determined by the authorities, provided that this does not necessarily imply durable solution in the country of the port of disembarkation.
Irrespective of whether or not the stowaway declares his intention to lodge an asylum claim, he is to be treated in accordance with human rights protection principles. Linked to this is that ‘every effort should be made to avoid situations where a stowaway has to be detained on board a ship indefinitely. In this regard States should co-operate with the ship-owner in arranging the disembarkation of a stowaway to an appropriate State’.28
It is recognized that ‘obtaining agreement as to where a stowaway asylum-seekers should disembark is … no simple task’29 and that, ‘as a result of disagreement between States over which of them is responsible for admitting the stowaway asylum-seeker, so-called orbit situations are created. In several such situations, References(p. 497) stowaway asylum-seekers have been confined for many weeks and even months on board ships travelling from one port to another’.30
The question of expeditious disembarkation of stowaways is one of the most important regarding a solution to stowaway cases. It falls to the ship-owner to secure the repatriation of the stowaway, but it will often be necessary for this to happen in close co-operation with the parties involved, mainly the authorities in the first port of call after the stowaway has been detected … The standards concerning the obligation to allow disembarkation are primarily aimed at the authorities in the first scheduled port of call after the stowaway has been detected. If disembarkation in the first scheduled port of call however does not happen, the subsequent ports of call also have a corresponding obligation.32
Further ports are called upon when it comes to the return of stowaways, such as the State of Nationality or Residence of the stowaway and the State of Embarkation.33 All these duties are to be read in the light of the core provision section 4.2 regarding shared responsibility of all the parties involved. While the duty of cooperation and shared responsibility is also a hallmark of efforts to combat human smuggling and the trafficking in individuals, relevant documentation emphasizes the necessity to avoid confusion between cases involving stowaways and cases of human smuggling, the prevention of which should be sought through different methods.34 Indeed, Resolution MSC.312(88) by which the Revised Guidelines References(p. 498) were adopted by the MSC makes clear that the existence of the Guidelines is in no way to undermine efforts to combat the ‘separate problems of alien smuggling or human trafficking’.
Stowaways and the group presently referred to as irregular migrants and trafficked individuals comprise two different categories of individuals. While human rights violations must be prevented in both, especially due to the mode of travel which is both surreptitious and dangerous, their consequent vulnerability, and the possibility that asylum claims be made by members of either category, a basic difference is that while migrants are not to be subject to prosecution for the mere fact of being smuggled,35 stowaways on the other hand are considered to be ‘illegal entrants’ once they arrive or enter a State without the required documents.36 To this end, Standard 220.127.116.11 permits prosecution of stowaways should the individual Member State determine this to be appropriate.
Furthermore, stowaways are not legally considered to be victims of organized crime. The smuggling of migrants and trafficking in individuals are facets of organized crime. The means of their repression must therefore be different. Another stark difference relates to the circumstances surrounding their detection and the consequent question as to which State is to receive the stowaways or migrants/trafficked individuals. Precisely because maritime migrant smuggling or trafficking in individuals often culminates in a rescue scenario or interception exercise, there is an urgency often necessitated by the imminent threat to life with which the individuals are faced. Large numbers of persons are loaded onto vessels which in turn need to disembark these individuals at an appropriate port. Due to the numbers involved and the high incidence of asylum claims made, coupled with a lack of solidarity among States in this regard, disembarkation of those rescued at sea is a grave problem. This is not so apparent in the case of stowaways, where, as has been noted, the FAL Convention succeeds in delineating a number and hierarchical order for States to receive stowaways. Further, there is no need, indeed, there is the exhortation for shipmasters not to deviate from the planned voyage in order to seek to disembark stowaways save in three limited circumstances, namely: i) where permission to disembark the stowaway has been granted by the public authorities of the State to whose port the ship deviates; ii) in the case where repatriation has been arranged elsewhere with sufficient documentation and permission for disembarkation; or iii) where there exist extenuating security, health, or compassionate reasons.37
References(p. 499) 16.3 Maritime Migrant Smuggling and Trafficking in Individuals
Both maritime migrant smuggling and trafficking in individuals using sea channels are facets of organized crime and are among the fastest-growing transnational crimes today. Yet, despite this innate connection to maritime affairs, the UNCLOS fails to consider either offence in its provisions.38 However, aside from the fact that the jurisdictional powers available to States within the various maritime zones do indeed continue to apply insofar as concerns action available for the repression of these crimes, it would be a gross underestimation of the pertaining regulatory regime were one to stop at the jurisdictional powers available under the UNCLOS. What is also needed is a consideration of other aspects of the international legal regime such as rescue at sea (itself an obligation found in the UNCLOS and elaborated upon, despite lack of agreement in interpretation, in the SAR Convention and SOLAS)39 and also, refugee law and humanitarian principles of protection, mainly, in this regard, the obligation of non-refoulement.
The first attempt at a holistic legal regime catering for the crimes of migrant smuggling and trafficking in individuals, was the creation of two Protocols to the CATOC.40 CATOC defines an organized criminal group for the purposes of the Convention as ‘a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit’.41 Indeed, organized crime groups function like any business: their motivation is profit, and they operate on business-like principles such as taking up market opportunities—the difference being that the markets they exploit are prohibited. All the hallmarks of an organized criminal syndicate, based on a clear hierarchical structure and division of labour, are evident in these crimes. To name but a few of the characteristics, References(p. 500) one finds well-equipped forgery workshops to create the essential travel documents; the ability to modify the syndicate’s operations to adapt to changing risks by using different routes, entry schemes, and conveyances; operation centres, accommodations, and hideouts in transit countries; the economic wealth for substantial bribes and the best forms of technology; the contacts and networks required to secure the assistance of corrupt officials; diversification of criminal activities and an ability to use violence to obtain payments from undocumented migrants. Lastly, the inherent difficulty of controlling such crimes due to their transnational nature is exacerbated by the fact that people smuggling and trafficking are usually classed as ‘safe crimes’: the criminals usually benefit from absent or low criminal sanctions and from the silence of their victims (due to their illegal status, fear of retribution by the criminals, and risk of deportation). Furthermore, they are sometimes aided by official corruption—of local police, border guards, and customs officers.
These Protocols are to be applauded both for the regulatory framework provided and also for their recognition of the human element central to these offences.42 For instance, in the Smuggling Protocol, the rights and powers of States in the context of interception exercises are staged alongside State obligations as dictated by refugee law. It also presents a regime which works within the recognized system provided by the UNCLOS—avoiding problems of flag State exclusivity on the high seas, not by challenging the general principles of the law of the sea but rather, by working within their parameters. An overview of the salient features of the Protocols follows, to be followed up with a discussion of the problems related to rescue at sea.
‘Effective action to suppress the crime of trafficking in individuals requires a comprehensive approach’. This is the opening sentence of the relatively brief Preamble to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime 2000 (Trafficking Protocol).43 This Protocol, which supplements the CATOC and is to be interpreted together with it,44 is the first universal instrument to address all aspects of trafficking in persons.45 The References(p. 501) statement of purpose, in Article 2, expresses the aims of the Protocol to be three-fold, focusing on prevention of the crime, protection of the victims and promotion of cooperation amongst Parties to achieve these ends.
The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
Migrant smuggling focuses on the facilitation of the illegal crossing of international borders for profit, and the subsequent treatment of the migrants is not a constitutive element of the crime. Indeed, the offence of smuggling ends with the arrival of the migrants at the destination country, while trafficking involves a continuing exploitative relationship in order to generate profits for the traffickers.
Migrants are perceived as willing parties to a transaction; indeed, the offence of smuggling requires the consent of the migrants.48 On the other hand, a trademark feature of the crime of trafficking includes the improper form of recruitment, through coercion, deception or some abuse of authority, and the element of References(p. 502) obtaining a profit as a result of an exploitative purpose for which the trafficking was undertaken, although this aim need not necessarily be fulfilled.49 Trafficked persons have either never given their consent, or if they have, have had their consent vitiated by coercion, deceit, or abusive action on the part of the traffickers. This raises additional human rights concerns for victims of trafficking which concerns may not be present in the case of smuggled migrants.50
Aside from the element of coercion, another major difference between these crimes is that, unlike smuggling, the crime of trafficking does not necessitate the crossing of national borders in order to subsist and therefore this offence is not necessarily linked to the concept of international migration. It is in this sense that while the smuggling of migrants could be said to constitute a crime against the State and often involves a mutual interest between the smuggler and the smuggled, trafficking in human beings constitutes a crime against a person and involves an exploitative purpose.51
Theory aside, notwithstanding their separate treatment at international law, these offences do share overlapping elements.52 In many ways, there seems to be a continuum between the more voluntary forms of undocumented migrations and the non-voluntary forms:
The distinction that has been made between trafficked persons and smuggled migrants is evidently a useful one. However … such distinctions are less clear on the ground, where there is considerable movement and overlapping between the two categories.53
(p. 503) There is an assumption that the smuggled migrants have acted voluntarily and that therefore, have less need of protection.54 Consequently, one notes a strengthened regime relating to border control in the Smuggling Protocol in which the protection measures are in no way as comprehensive as in the Trafficking Protocol. The different treatment accorded to victims of smuggling and victims of trafficking, though theoretically justifiable, does not take into account the difficulties in identification of the respective victims:
The regime created by the two protocols (whereby trafficked persons are accorded greater protection and therefore impose a greater financial and administrative burden on States Parties than smuggled migrants) creates a clear incentive for national authorities to identify irregular migrants as having been smuggled rather than trafficked … The possibility of individuals being wrongly identified was not even considered during the drafting process … Nor was there any acknowledgement of the fact that someone can be a smuggled migrant one day and a trafficked person the next.55
A recognition of this overlap is also evident in international documentation and initiatives.56 While there is nothing wrong in principle with this approach, it is important not to lose sight of the particularities of the two crimes when framing the appropriate response, whether national, regional, or international.57
The general tenor of the Trafficking Protocol, aside from the issue of criminalization58 is focused on assistance and protection of victims, the status of victims in the receiving State and their repatriation.59 In the Article dealing with the prevention of trafficking in persons, one also notes the reference to ‘protection’.60 From a humanitarian perspective, governments are not to lose sight of the fact that all References(p. 504) individuals deserve treatment in accordance to their inherent dignity as a human being; apart from this, many individuals seeking to cross international borders (whether by way of smuggling or trafficking) are genuine refugees who have the right to protection.
The failure of the two protocols to include mandatory protections provides a strong indication that, for many governments, trafficking and smuggling are issues of crime and border control, not human rights.63
Indeed, the saving clause was only introduced due to a preoccupation that the border control provisions in the Trafficking Protocol could further limit the rights already available. This may not be surprising seeing that the Protocol is not primarily a human rights instrument and not initiated by a human rights body, but by the UN body charged with dealing with drug control and crime prevention. Furthermore, the fact that much of the border control material was taken from the corresponding provisions in the Migrant Smuggling Protocol may also explain this disproportionality in the balance between the potentially dichotomous interests involved: protection of victims and protection of State sovereignty and security.
Insofar as repression of the crime from the maritime aspect is concerned, trafficking in persons is considered to be a particularly abusive form of migration. Human trafficking is clearly not to be reduced to a migration problem alone, however, for the purposes of this contribution, especially in view of the fact that the Trafficking Protocol does not contain any reference to suppression of illicit trafficking by sea, and bearing in mind the overlap between the two forms of organized crimes outlined above, victims of trafficking are considered only in the context that among References(p. 505) the boatloads of intercepted or rescued vessels carrying individuals through the oceans, trafficked individuals may also be present.64
A 2011 UNODC Issue Paper65 underlines the key facts that migrant smuggling by sea is the most dangerous type of smuggling for the migrants concerned66 and also that efforts to combat this crime will be unsuccessful unless cooperation is strengthened between all the States involved, including that is, countries of departure, arrival, transit, origin, and destination. The benefits of cooperation are recognized in the Smuggling Protocol which (albeit not innovative as far as it requires States Parties to criminalize certain acts in their domestic law, to make them punishable by appropriate sanctions and to subject them to various measures such as extradition and mutual legal assistance)67 seeks to create a framework for cooperation while ensuring the protection of victims and respect for their inherent rights. In this way, the Migrant Smuggling Protocol is the first instrument of its kind to recognize the multi-faceted nature of migrant smuggling which also calls for protection of fundamental rights of the individual, thereby necessitating consideration of humanitarian principles of protection throughout operations to repress the crime. Aside from the preambular paragraph which echoes the need to ‘provide migrants with humane treatment and full protection of their rights’, one also finds the general statement of purpose in Article 2 referring to the ‘rights of smuggled migrants’ and more specifically in the maritime context, Article 9 which provides for safeguard clauses which inter alia provide, in sub-article (1) that the ‘safety and human treatment of the persons on board’ must be ensured.
The section on migrant smuggling by sea in Part II of the Protocol is particularly valuable as it ties in interception operations under the Protocol with the general rubric of the law of the sea in particular, the UNCLOS provisions of Articles 91, 92, and 94. These latter provisions encapsulate the reigning principle of the high seas: the principle of exclusivity of flag State jurisdiction. In this way, the maritime provisions of the Protocol graft onto the Law of the Sea regime which remains References(p. 506) unchanged so that the lacuna in the general rubric of the international law of the sea is filled in a way which strengthens—rather than challenges—the principle of flag State exclusivity on the high seas.68
Controlling maritime migrant smuggling within the territorial sea falls within the parameters of Article 19(2)(g) UNCLOS which prohibits any loading or unloading of any person contrary to, inter alia, immigration laws and regulations of the coastal State.69 As for the high seas, while the right of visit under Article 110 does not specifically list the smuggling of migrants as an instance in which this right may be exercised, the right of visit is sometimes carried out in respect of ships engaged in the smuggling of migrants on the basis that these ships usually lack nationality. As for other grounds for enforcement action on the high seas, the UNCLOS merely lays the foundations for cooperation in the suppression of the slave trade, and even if one could assimilate migrant smuggling to slavery, effective enforcement action is minimal: the duty to ‘take effective measures to prevent and punish the transport of slaves’ is couched in terms as to oblige only the flag State.70 Similarly, although Article 98(1) UNCLOS71 obliges every State to require the master of a ship flying its flag to render assistance to persons in distress while on the high seas this provision does not sanction subsequent seizing and arrest of the vessel.
Part II of the Protocol lays out the general framework of permissible action at sea and preserves the supremacy of flag State jurisdiction and, in Article 7, provides for the overriding duty to ‘cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea’. This obligation is not unknown to instruments aimed at suppressing maritime crime and indeed, the Protocol echoes these other instruments by expressly providing for further agreements of a bilateral or regional nature to be established to this end. However, although the law enforcement and cooperation regime has indeed been inspired in large part by the set of measures included in Article 17 of the Vienna Drugs Convention, because of the fundamental difference between trafficking in drugs and smuggling of persons, the Smuggling Protocol considers specific factors in judging the appropriateness of intervening at sea against migrant smuggling and in ensuring that adequate safeguards are taken regarding the safety and humane treatment of persons on board.
References(p. 507) A concretization of the duty of cooperation is evident in the Protocol, Article 872 of which provides for the steps to be taken prior to and during a boarding procedure by a non-flag State Party to the Convention. It is true that the flag State remains the prime actor in this regard, however, the problems of lack of action on the part of the flag State or failure to respond to requests for verification of registry and authorization to board are allayed by Article 8(4) which requires that any such requests must be considered and responded to ‘expeditiously’. This is an approach that has been adopted in other spheres, such as maritime drug smuggling and terrorism; the net effect of this may be an emerging definition of the concept of cooperation as compelling a response from the flag State should it choose not to take action itself.
As noted above, Article 8 of the Smuggling Protocol provides for enforcement action, including interception,73 by non-flag State actors. This exercise of jurisdiction and control over vessels becomes increasingly significant from the point of view of humanitarian considerations since through such acts, obligations of human rights bind the intercepting State.74 Furthermore, while human rights protections apply to all persons on board, a number of these individuals may warrant additional protection by virtue of them being asylum seekers. The central obligation applying at this stage is the principle of non-refoulement, set out in Article 33(1) of the Refugee Convention which mandates that no asylum seekers be sent back to a place of persecution, that is, ‘where [their] life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.75
The prohibition against refoulement has an extraterritorial application, applying whenever a State ‘acts’, a term which includes territorial and extra-territorial waters. The notion of jurisdiction and control and consequent extraterritorial application is very significant especially in the light of recent decisions of the European Court of Human Rights including its first on interception at sea: Hirsi Jamaa and others v Italy.76 This is a much-needed decision which directly contradicts the position taken by the majority of the US Supreme Court in Sale v Haitian Centres References(p. 508) Council and destabilizes the rationale of arrangements such as the Italy–Libya Agreement77 in which context it had been argued that ‘from a legal perspective, it is under dispute whether States’ obligations towards refugees are fully engaged as long as refugees have not managed to enter their territory’.78
The practical implications of the non refoulement obligation necessitate that a status determination procedure be carried out in order to ascertain that no asylum seeker will be returned to a place where he risks persecution. This is the only way to draw the distinction between a genuine asylum seeker and any other irregular migrant. A State would be therefore be in breach of the obligation of non refoulement were it to intercept and turn back a vessel to the borders of persecution without reviewing any asylum claims made on board the intercepted vessel.
These considerations may also dictate rescue at sea scenarios. It is true that rescue at sea is different to the act of maritime enforcement amounting to interception, differing in both intention and purpose (as has recently been pointed out by the Grand Chamber of the European Court of Human Rights in Hirsi v Italy).79 Indeed, these scenarios raise different legal and policy questions and may also require different responses.80 However, the two sometimes overlap, and disembarkation is common to both processes.81 Furthermore, an interception exercise may pre-empt the need for a rescue as many times, State vessels on surveillance patrols may be required to assist passengers on unseaworthy boats often by transferring them onto the Coast Guard vessels. International law is not clear on what is to happen post-rescue. In such cases, it would seem that disembarkation should usually take place in the State whose officials have conducted the rescue operation, or else by agreement, which is not often forthcoming. Even less clear is the case of rescue operations conducted by private vessels. Disagreement between States as to the specification of the port of disembarkation in such cases has led to ship masters References(p. 509) being reticent to provide assistance to vessels in distress, with the result that a number of distress calls go unheeded.82
Article 98 UNCLOS imposes a duty on Masters to render assistance to those in distress at sea, and therefore any boarding by non-flag State vessels is permitted insofar as it is incidental to the required rescue operation. This duty may also be regarded as part of customary international law. However, while the rescue obligation exists almost unconditionally, it is hampered with inherent flaws: enforcement of the duty is difficult if not impossible considering that it is mainly the flag State which can enforce the obligation and that nearly one-third of all ocean-going vessels are registered under flags of convenience. Furthermore, the incomplete exposition of the obligation, which makes no reference to the obligations incumbent upon States following the immediate alleviation of distress is another drawback.
Amendments to the SOLAS83 and SAR84 Conventions carried out in 2004 and coming into force on 1 July 2006, sought to rectify this situation.85 A new paragraph thus clarifies that disembarkation is indeed part of the rescue operation.86 The text reads that States are to ‘make the necessary arrangements in cooperation with other RCCs to identify the most appropriate place(s) for disembarking persons found in distress at sea’.87
Furthermore, Contracting Governments are now obliged to coordinate and cooperate to release Masters who have assisted persons in distress at sea from their obligations with minimum further deviation from the ship’s voyage. Problems of interpretation and application have not ceased however. The SAR Convention, in paragraph 3.1.9 of its Annex,88 imposes a duty of cooperation and coordination on States parties to the Convention, placing upon the State in whose search and rescue (SAR) zone the rescue occurs ‘the primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety’.89 A more clearly defined References(p. 510) direction is found in a January 2009 Circular of the IMO’s FAL Committee entitled ‘Principles relating to Administrative Procedures for Disembarking Persons Rescued at Sea’.90 The problem in this regard is that this amendment and Circular have not been accepted by certain States such as Malta, with the result contracting States to the SAR Regime are bound by different rules, militating against a uniform and coordinated approach to a common problem.
Fundamentally, a core challenge in any particular rescue at sea operation involving asylum-seekers and refugees is often the timely identification of a place of safety for disembarkation … If a shipmaster is likely to face delay in disembarking rescued people, he/she may be less ready to come to the assistance of those in distress at sea. Addressing these challenges and developing predictable responses requires strengthened cooperation and coordination among all States and stakeholders implicated in rescue at sea operations.91
The benefits of the duty of cooperation cannot be underestimated. While this is an essential component in the fight against any contemporary maritime threat, be it drug smuggling or carriage of weapons of mass destruction, it is also at the forefront of the human aspect of other threats to maritime security, namely migrant smuggling and trafficking in human beings.
A cooperative enforcement regime safeguarding the human dignity of individuals, aside from ridding the seas of these threats which endanger maritime and national security, is therefore essential. The CATOC Protocols thus emerge as worthy tools to this end: aiming to fight the crimes of migrant smuggling and trafficking in individuals by creating a framework for legal and judicial cooperation while ensuring the protection of victims and respect for their inherent rights, a crucial element in combating maritime crimes in which humans are the unfortunate subjects.
2 S Kaye, ‘Freedom of Security in a Post 9/11 World: Security and Creeping Jurisdiction’ in D Freestone, R Barnes, and D Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press, 2006) 347–64.
8 In these scenarios, the right of visit applies as per Art. 110 of the UNCLOS. See generally: Telegram from the US Department of State, September 15, 1990, reported in M Pickering, S Cummins, and D Stewart (eds), Digest of United States Practice in International Law 1989–1990 (Office of the Legal Advisor, United States Department of State International Law Institute, Washington, DC, 1989–1990) 451–2; Model Maritime Operations Guide, Pattern of Enforcement Activity of US Coast Guard as delineated in United States Coast Guard, Department of Homeland Security, 2003, 2–17.
10 In this regard note IMO MSC/Circ. 1133 Reminder of the Obligation to Notify Flag States when Exercising Control and Compliance Measures (14 December 2004) and MSC.1/Circ. 1191 Further Reminder of the Obligation to Notify Flag States when Exercising Control and Compliance Measures (30 May 2006).
12 A ‘stowaway’ is defined in the FAL Convention and Revised Guidelines as ‘[a] person who is secreted on a ship, or in cargo which is subsequently loaded on the ship, without the consent of the ship-owner or the master or any other responsible person and who is detected on board the ship after it has departed from a port, or in the cargo while unloading it in the port of arrival, and is reported as a stowaway by the master to the appropriate authorities’. An ‘attempted stowaway’ is ‘detected before the ship has left the port’. (FAL Convention, Annex, Section 1).
15 ‘Standards’ are defined as internationally-agreed measures which are ‘necessary and practicable in order to facilitate international maritime traffic’; ‘recommended practices’ are measures whose application is ‘desirable’.
24 Refugee Convention (Geneva, adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) and Refugee Protocol (Geneva, adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (Refugee Protocol).
25 International Covenant on Civil and Political Rights (New York, adopted 16 December 1966, entered into force 23 March 1976) GA Res. 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966); 999 UNTS 171; 6 ILM 368 (ICCPR).
26 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, adopted 10 December 1984, entered into force 26 June 1987) GA Res. 39/46, annex, 39 UN GAOR Supp (No 51) at 197, UN Doc A/39/51 (1984); 1465 UNTS 85.
31 In 1998 the FAL Committee issued Circular FAL.2/Circ.50, revised in 1999 by FAL.2/Circ.50.Rev.1, inviting Governments and relevant international organizations to provide the IMO with information relating to stowaway incidents. The latest report at the time of writing is FAL.2/Circ.124 (16 December 2011) reporting the total number of stowaway incidents from 1 May to 16 December 2011 to be 56 incidents, involving 166 stowaways. The total number of incidents reported to the IMO from January 1998 to December 2011 is 4,196, involving 13,387 stowaways. By contrast, the statistics provided for incidents resulting from unsafe practices associated with the trafficking or transport of migrants by sea for the same period of time (May to December 2011) is 103 incidents, involving 12,661 migrants. Ref: MSC.3/Circ.20 (16 December 2011). The total number of such incidents reported to the IMO from 1998 to the end of 2011 is 1879 incidents involving 87,114 migrants. There is also the consideration that while most stowaways will be detected by authorities at some point during their irregular journey, a significant portion of the migrant population who attempt to reach land in unseaworthy vessels perish during their journey.
35 See Art. 5 Smuggling Protocol: migrants are not to become liable to criminal prosecution under the protocol for the fact of being smuggled. Note however that this provision would not stop a State from prosecuting a smuggled migrant for violation of national immigration laws (see Art. 6(4)).
38 The most relevant provision would be Art. 99 dealing with the repression of slavery on the high seas and this due to the nature and conditions of the operations which may be assimilated to modern day slavery. However, this provision is not effective in repressing the crime and therefore is of peripheral importance for immediate purposes.
39 International Convention for the Safety of Life at Sea, 1974, as amended (London, adopted 1 November 1974, entered into force 1 May 1991) 1184 UNTS 278; 14 ILM 959 (SOLAS) and International Convention on Maritime Search and Rescue (Hamburg, adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 97 (SAR Convention).
40 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime (Palermo, adopted 15 November 2000, entered into force 28 January 2004) 40 ILM 384 (Smuggling Protocol) and Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Palermo, adopted 15 November 2000, entered in force 25 December 2003) 40 ILM 335 (Trafficking Protocol).
43 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Palermo, adopted 15 November 2000, entered in force 25 December 2003) 40 ILM 335 (Trafficking Protocol).
45 A compilation of relevant League of Nations and United Nations instruments is available at the United Nations Treaty Collection, available online: <http://treaties.un.org/pages/Treaties.aspx?id=7&subid=A&lang=en> (accessed 9 October 2012).
47 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime (Palermo, adopted 15 November 2000, entered into force 28 January 2004) 40 ILM 384 (Smuggling Protocol).
49 ‘Implementation of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, Analytical Report of the Secretariat’ (2 September 2005) UN Doc CTOC/COP/2005/4, point 22.
50 UNGA, ‘Note by the Office of the United Nations High Commissioner for Human Rights, the United Nations Children’s Fund and the International Organisation for Migration on the draft protocols concerning migrant smuggling and trafficking in persons’ (8 February 2000) UN Doc A/AC.254/27, 1–2.
51 This was the view taken by the European Commission in the Communication from the Commission to the European Council and the European Parliament in the Proposal for a Council Framework decision on Combating Trafficking in Human Beings and on Combating the Sexual Exploitation of Children and Child Pornography, COM (2000) 854, final/2, page 8. This resulted in a Council Framework Decision on Combating Trafficking in Human Beings OJ L203/1 (2002/629/JHA). This is also the view taken by some authors; see, for example: JK Meese et al, ‘Multidisciplinary Research on the Phenomenon of Trafficking in Human Beings from an International and National Perspective’ quoted in IOM, Migrant Trafficking and Smuggling in Europe: A Review of the Evidence with case studies from Hungary, Poland and Ukraine (Geneva, IOM, 2000) 22.
52 UNHCR, ‘Refugee Protection and Migration Control: Perspectives from UNHCR and IOM’ Global Consultations on International Protection (31 May 2001) EC/GC/01/11, para. 9; UNODC, ‘A Comprehensive Strategy to Combat Trafficking in Persons and Smuggling of Migrants’ (29 February 2012) 7. See also: F David, ‘Human Smuggling and Trafficking: On Overview of the Response at Federal Level’ Australian Institute of Criminology, Research and Public Policy Series, No. 24, 10.
53 Ad-Hoc Committee on the Elaboration of a Convention Against Transnational Organised Crime, Note by the United Nations High Commissioner for Human Rights, the United Nations Children’s Fund, the United Nations High Commissioner for Refugees, and the International Organization for Migration on the draft protocols concerning migrant smuggling and trafficking in persons, 8 February 2000, UN Doc A/A.254/27, para. 2.
54 For an overview of the protective provisions in the Migrant Smuggling Protocol and the differences in this regard to the Trafficking Protocol, see Gallagher, ‘Human Rights and the New UN Protocols’ (n. 46) 997–9.
56 See for instance, UNODC, ‘Thematic Programme on Action Against Transnational Organized Crime and Illicit Trafficking, including Drug Trafficking sets out its strategic priorities for the period of 2011–2013’ (April 2011). This outlines three sub-programmes of UNODC’s activities in relation to transnational organized crime. Sub-Programme 3 deals with ‘Human Trafficking and Migrant Smuggling’. Furthermore, a new Human Trafficking and Migrant Smuggling section is to be created as a third section under the Organized Crime Branch with full responsibility for implementing this third Sub-Programme.
61 Art. 14(1) was inserted into the Trafficking Protocol from the Migrant Smuggling Protocol during the First Session of the Ad Hoc Committee; A/AC.254/Add.3/Rev.1, 9–10. The obligation of non refoulement was introduced at the final reading of the Protocol, in order to bring it into line with the Migrant Smuggling Protocol. Ref: D McClean, Transnational Organized Crime: A Commentary on the UN Convention and its Protocols (Oxford University Press, 2007) 367.
62 Gallagher, ‘Human Rights and the New UN Protocols’ (n. 46) 990.
63 Gallagher, ‘Trafficking, Smuggling and Human Rights’ (n. 55) 27.
64 See UNHCR, Protection Policy Paper: ‘Maritime Interception operations and the processing of international protection claims: legal standards and policy considerations with respect to extraterritorial processing’ (November 2010), 8, para. 28. In the context of maritime interception operations and the processing of international protection claims, there may be persons with specific needs who may require special considerations in terms of reception and processing facilities; among these were listed: woman, children, and trafficked persons.
66 Conditions on board are deplorable: smugglers use boats and engines that are unseaworthy and which cannot withstand the elements; boats are overcrowded and passengers may not be provided with life vests. See ‘Smuggling of Migrants by Sea’ (n. 65) at 33.
67 This pattern can be noted in other Conventions such as the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, adopted 20 December 1988, entered into force 11 November 1990) UN Doc E/CONF.82/15; 28 ILM 493 (Vienna Drugs Convention).
68 For an overview of the zonal jurisdiction pertaining to migrant smuggling under the law of the sea regime see P Mallia, Migrant Smuggling by Sea: Combating a Current Threat to Maritime Security through the Creation of a Cooperative Framework (Martinus Nijhoff Publishers, 2010) Part II Cap 5.
71 UNCLOS, Art. 98(1). See also: SOLAS Convention Arts V/7, V/33 and International Convention on Salvage (Brussels, adopted 28 April 1989, entered into force 14 July 1996) 1996 UKTS 93 (1996), Cm3458, Art. 10.
77 A Treaty of Friendship, Partnership and Cooperation was concluded in August 2008 with an Implementing Protocol (the contents of which are not publicly available) being concluded in February 2009. These instruments provided the basis for joint Libya–Italy maritime patrols and Italy’s so-called push-back practice, commencing in May 2009. See further: N Ronzitti, ‘The Treaty on Friendship, Partnership and Cooperation between Italy and Libya: New Prospects for Cooperation in the Mediterranean?’ (2009) 1 Bulletin of Italian Politics 125–33. See also, for history of the Agreement: UNHCR, ‘UNHCR’s Third Party Submission to the ECHR in the case of Hirsi and Others v Italy’ (Application No. 27765/09), 2.
80 See UNHCR, Protection Policy Paper, ‘Maritime Interception Operations and the processing of international protection claims: legal standards and policy considerations with respect to extraterritorial processing’ (November 2010).
81 This link is recognized in the UNHCR’s Model Framework wherein Art. II states that it applies to rescue at sea operations involving refugees and asylum seekers, irrespective of the nature of the rescuing vessels thereby implicitly including operations by official vessels which become rescue operations even though they occur in the context of what was originally a patrolling exercise.
87 Indeed, prior to the 2004 amendments to the SAR Convention, the necessity of disembarkation could only be implied from provisions such as para. 1.3.2 of chap. 1 of the Annex to the SAR Convention itself, which defines a rescue operation as also including the delivery of the rescuees to a place of safety.
89 Note the definition of a SAR region in the Annex to the SAR Convention (chap 1, para. 1.3.4) as an ‘area of defined dimensions associated with a rescue co-ordination centre within which search and rescue services are provided’. This area defines which State has primary responsibility for coordinating rescue operations in response to a distress situation.
90 FAL Circular FAL.3/Circ.194, 22 January 2009. The relevant text provides that: ‘if disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the Government responsible for the SAR area should accept the disembarkation of the persons rescued into a place of safety under its control’.