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Law of the Sea and Migration Vita Onwuasoanya Legal Officer DIVISION FOR OCEAN AFFAIRS 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) 1

Mixed migration Ø Movements of people increasingly mixed: asylum seekers & refugees; trafficked/ smuggled Mixed migration Ø Movements of people increasingly mixed: asylum seekers & refugees; trafficked/ smuggled persons; migrants Ø Similar routes Ø Similar modes of transport 2

Migration Flows Note: no comprehensive statistics available, only what is reported to IMO 3 Migration Flows Note: no comprehensive statistics available, only what is reported to IMO 3

Migration Flows (cont. ) 4 Migration Flows (cont. ) 4

Stakeholders Flag States of Origin Transit States of Destination or disembarkation 5 Stakeholders Flag States of Origin Transit States of Destination or disembarkation 5

Migration by sea: Outline of Presentation Part I: Law of the sea Part II: 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 6

Part I: Law of the sea 1982 United Nations Convention on the Law of 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 7

Overview of UNCLOS United Nations Convention on the Law of the Sea , adopted 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 8

Limits of maritime zones 9 Limits of maritime zones 9

Territorial Sea Sovereignty of a coastal State extends beyond its land territory and internal 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. 10

Innocent passage through territorial sea Foreign ships have the right of innocent passage through Innocent passage through territorial sea Foreign ships have the right of innocent passage through the territorial sea of a coastal State (article 17): Ø Continuous and expeditious passage through territorial sea or to/from internal waters (article 18) Ø Subject to certain laws of coastal State e. g. prevention of infringement of customs, fiscal, immigration or sanitary laws (article 21(h)) 11

Innocent passage through territorial sea (cont. ) Passage of a foreign ship is innocent 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: Ø 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) 12

Contiguous Zone Maritime zone contiguous and seaward of the territorial sea, from the outer 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) 13

Exclusive Economic Zone (EEZ) The exclusive economic zone (EEZ) is an area beyond adjacent Exclusive Economic Zone (EEZ) The exclusive economic zone (EEZ) is an area beyond 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)) 14

Limits of maritime zones 15 Limits of maritime zones 15

EEZ (cont. ) A coastal State has certain sovereign rights, including: Ø Exploring and EEZ (cont. ) A coastal State has certain sovereign rights, including: Ø 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) 16

High seas: parts of the sea which are not included in the exclusive economic 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) 17

Maritime Zones (recap) Territorial Sea: 12 nm from baselines Contiguous Zone: up to 24 Maritime Zones (recap) Territorial Sea: 12 nm from baselines Contiguous Zone: up to 24 nm from baselines from which territorial sea measured EEZ: up to 200 nm from baselines High Seas: area of sea beyond outer limits of EEZ 18

Flag State jurisdiction Every State has the right to sail ships flying its flag 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): Ø Piracy Ø Unauthorized broadcasting Ø Slave trading Ø Illicit drug trafficking Ø Ships without nationality Ø Ships hiding real nationality 19

Flag State Jurisdiction (cont. ) Another exception to exclusive flag State jurisdiction right of Flag State Jurisdiction (cont. ) Another exception to exclusive flag State jurisdiction right of hot pursuit (article 111): Ø 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. Ø Exercised by warships or military aircraft Ø Pursuit must begin in internal waters, territorial sea, the contiguous zone, EEZ Ø Must give signal to stop Ø Pursuit must be continuous Ø Cease pursuit if pursued ship enters territorial sea of another coastal State 20

Duties of Flag States Duties of the flag State (article 94): Ø Exercise effective Duties of Flag States Duties of the flag State (article 94): Ø Exercise effective control over ships flying its flag Ø Measures to ensure safety at sea Ø Measures must conform with generally accepted international regulations (e. g. IMO Conventions) Ø The operation of substandard ships is not permitted Ø Ensure that their vessels comply with international law and not be used for illicit purposes 21

Part II: Rescue of Persons in Distress at Sea Overview Legal regime relating to Part II: Rescue of Persons in Distress at Sea Overview Legal regime relating to rescue of persons in distress Ø Obligation to assist and rescue persons in distress Ø Obligations in respect of disembarkation and delivery to a place of safety 22

Rescue of persons in distress at sea Legal Regime Obligation of masters of ships 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: Ø obligations of masters of ships, flag States, and coastal States Focus on UNCLOS and IMO Conventions and instruments 23

Duty to Render Assistance under Article 98 of UNCLOS Obligation of a master of Duty to Render Assistance under Article 98 of UNCLOS Obligation of a master of a ship to : Ø render assistance to any person found at sea in danger of being lost Ø 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 24

Duty of Coastal States (search and rescue ) under Article 98 of UNCLOS Obligation 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)) . 25

International Convention for the Safety of Life at Sea, 1974 (SOLAS) Obligation of masters: 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) 26

International Convention on Maritime Search and Rescue, 1979 (SAR Convention) International framework for search 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) 27

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SAR Convention (cont. ) Obligation to provide assistance to any person in distress at 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) 29

2004 Amendments to SOLAS and SAR Conventions IMO review of the SOLAS and SAR 2004 Amendments to SOLAS and SAR Conventions IMO review of the SOLAS and SAR Conventions. Object of the review- take action to ensure that: Ø survivors are provided assistance regardless of nationality or status or the circumstances in which they are found Ø ships are able to deliver the survivors to a place of safety Ø 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 30

2004 Amendments to SOLAS and SAR Conventions (cont. ) States to coordinate and cooperate 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 31

IMO Guidelines on the Treatment of Persons Rescued at Sea (2004) Non-binding IMO Guidelines 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) 32

Further IMO consideration of the treatment of persons rescued at sea IMO Facilitation Committee 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: Ø Coordination between relevant national authorities Ø Procedures after disembarkation to a place of safety, e. g. screening and status assessment Ø Coordination-if swift disembarkation elsewhere not possible, then party responsible for SAR region should accept disembarkation of persons rescued into a place of safety Ø 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) 33

Trafficking and Smuggling United Nations Convention on Transnational Organized Crime, 2000 Ø Protocol Against Trafficking and Smuggling United Nations Convention on Transnational Organized Crime, 2000 Ø Protocol Against the Smuggling of Migrants by Land, Sea and Air, 2000 Ø Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 Trafficking vs smuggling 34

Smuggling Protocol States are required to cooperate to prevent and suppress the smuggling of 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): Ø 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 35

Smuggling Protocol (Safeguards) Safeguards when action is taken to board and inspect a vessel Smuggling Protocol (Safeguards) Safeguards when action is taken to board and inspect a vessel suspected of engaging in smuggling include (article 9): Ø Action can only be taken by military warships or other government ships or aircraft Ø Boarding State must ensure the humane treatment of the persons onboard Ø The rights of the coastal State or the authority of the flag State are not affected 36

Smuggling Protocol (safeguards cont. ) Nothing is to affect the rights and duties of Smuggling Protocol (safeguards cont. ) Nothing is to affect the rights and duties of States and individuals under international law, including (article 19): Øinternational humanitarian law Øinternational human rights law and Øthe 1951 Convention relating to the Status of Refugees and its Protocol, and the principle of non refoulement 37

IMO Interim Measures re: Trafficking and Transport of Migrants IMO Interim Measures for Combating 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: Ø preventing ships in port from sailing; Ø intercepting ships on the high seas and in EEZs 38

Interception/Interdiction Distinction between rescue and interception/interdiction Concerns regarding preserving the legal framework regarding rescue 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 39

Stowaways Definition of a stowaway: “person who is secreted on the ship or in 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, section 1 A) Ø Total Stowaway Incidents (March to July 2010)= 66 involving 164 stowaways 40

Stowaways (cont. ) IMO Convention on Facilitation of International Maritime Traffic contains: Ø security Stowaways (cont. ) IMO Convention on Facilitation of International Maritime Traffic contains: Ø security measures for preventing stowaways; and Ø measures regarding the disembarkation of stowaways IMO Guidelines on Resolution of Cases of Stowaways 41

IMO Convention on Facilitation of International Maritime Traffic Cooperation to prevent stowaways from embarking 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 42

Part III Migration by sea- Challenges Clandestine migration by sea Situations of people in 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 43

International forums General Assembly of the United Nations - Open-ended Informal Consultative Process on 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 44

General Assembly Annual resolutions on oceans and the law of the sea Resolution 65/37 General Assembly Annual resolutions on oceans and the law of the sea Resolution 65/37 A (2010): ØParas. 117 -120 calls relating to Flag State duties and search and rescue responsibilities of all States ØPara. 104 - take effective action to address unseaworthy ships and small craft within their national jurisdiction ØPara. 106 - all States to continue to cooperate in developing comprehensive approaches to international migration and development 45

Resources and further information Reports of the Secretary-General on oceans and the law of 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/45 b 8 d 8 b 44. pdf 46