(a) The 2000 Migrant Smuggling Protocol
The phenomenon of maritime migration goes back to the mass exodus from Vietnam
throughout the 1980s, which was followed in the 1990s by large-scale departures from
Albania, Cuba and Haiti. Recently the regulation of maritime migration has been a
matter of special concern, particularly in the Mediterranean Sea and the Bay of Bengal.
A particular issue that arises in this context concerns the interception of vessels on the high
seas for the regulation of migration. In practice, the counter-migration measures at sea are
taken on the basis of either bilateral or multilateral treaties. The majority of bilateral treaties
on this subject have been concluded by the United States to regulate migrants in the
Caribbean Sea. As regards multilateral treaties, the 2000 Protocol against the Smuggling
of Migrants by Land, Air and Sea (Migrant Smuggling Protocol), which supplements the
UN Convention against Transnational Organised Crime, is the principal treaty regulating
the smuggling of migrants.
The Migrant Smuggling Protocol aims to prevent and combat the smuggling of migrants
as well as to promote cooperation among States to that end, while protecting the rights of smuggled migrants. Put simply, smuggling refers to the facilitation of illegal migrant of
people. Article 3(a) of the Protocol defines migrant smuggling:
‘Smuggling of migrants’ shall mean the procurement, in order to obtain, directly or indirectly, a
financial or other material benefit, of the illegal entry of a person into a State Party of which
the person is not a national or a permanent resident.
In broad terms, the Migrant Smuggling Protocol provides three categories of obligations: the
obligation to criminalise the facilitation of smuggling and related activities, the protection
of the rights of migrants and the obligation to prevent the smuggling of migrants.
To prevent migrant smuggling by sea, the Protocol articulates, inter alia, the rules
applicable to situations where a State Party other than the flag State encounters a vessel
suspected of being engaged in migrant smuggling. In this regard, Article 7 of the
Protocol places a clear obligation upon States Parties 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. Article 8 provides measures against the smuggling of migrants
by sea. In this regard, measures taken by non-flag States merit particular mention. These
measures can be divided into two categories: (i) measures concerning vessels with the
nationality of a State Party, and (ii) measures for vessels without nationality.
Under Article 8(2) of the Protocol, a State Party that has reasonable grounds to suspect
that a vessel exercising freedom of navigation flying the flag or displaying the marks of
registry of another State Party is engaged in the smuggling of migrants by sea may so notify
the flag State, request confirmation of registry and, if confirmed, request authorisation from
the flag State to take appropriate measures with regard to that vessel. As suggested
by the term ‘may’, the power of non-flag States under this provision is permissive. The flag
State may authorise the requesting State, inter alia, to: (a) board the vessel; (b) search the
vessel; and (c) if evidence is found that the vessel is engaged in the smuggling of migrants
by sea, take appropriate measures with respect to the vessel and persons and cargo on
board, as authorised by the flag State. The contents of ‘appropriate measures’ remain
unspecified in the Protocol. Accordingly, such measures are to be determined by agreement
between the requested and requesting State in practice. Related to this, a flag State may
subject its authorisation to conditions to be agreed by it and the requesting State, including conditions relating to responsibility and the extent of effective measures to be taken by
virtue of Article 8(5). Under Article 8(5), with exceptions, the requesting State cannot take
additional measures without the express authorisation of the flag State.
As for vessels without nationality, Article 8(7) stipulates:
A State Party that has reasonable grounds to suspect that a vessel is engaged in the smuggling
of migrants by sea and is without nationality or may be assimilated to a vessel without
nationality may board and search the vessel.
Under the same provision, that State Party may take appropriate measures in accordance
with relevant domestic and international law, if evidence confirming the suspicion is found.
Where a State Party takes measures against a vessel pursuant to Article 8, it is obliged to
ensure the safety and humane treatment of the persons on board. Yet that State does not
have any obligation to accept smuggled migrants into its territory. It can be reasonably
presumed that the boarding of a ship will normally be done in urgent circumstances.
Accordingly, the communication with the flag States is of critical importance. Thus
Article 8(4) obliges a State Party to ‘respond expeditiously to a request from another State
Party to determine whether a vessel that is claiming its registry or flying its flag is entitled
to do so and to a request for authorization made in accordance with paragraph 2 of this
article’. This obligation is further amplified by Article 8(6):
Each State Party shall designate an authority or, where necessary, authorities to receive and
respond to requests for assistance, for confirmation of registry or of the right of a vessel to fly
its flag and for authorization to take appropriate measures. Such designation shall be notified
through the Secretary-General to all other States Parties within one month of the designation.
Overall, the interception of vessels on the high seas for combating the smuggling of
migrants under the Migrant Smuggling Protocol relies on the consent of the flag State.
The Protocol cannot therefore be considered as an exception to the principle of the
exclusive jurisdiction of the flag State.
(b) Lawfulness of Push-back Operations Against Migrants
Less infrequently the persons on board the intercepted vessels are intercepted in the high seas
and forced to return to their countries of origin or third States. The Tampa incident in 2001 vividly raised questions associated with push-back operations against migrants. The
lawfulness of push-back operations in the high seas must be examined from the viewpoints
of the law of the sea, international refugee law and international human rights law.
As explained earlier, vessels on the high seas are under the exclusive jurisdiction of the flag
State. Accordingly, interception of vessels on the high seas without the consent of the flag
State is contrary to international law. If vessels carrying irregular migrants are stateless, it is
open to debate whether warships and other government vessels may exercise enforcement
jurisdiction over stateless vessels. Furthermore, the rights of States to regulate migrants at sea
do not displace the duty to render assistance to persons in distress at sea. Under Article 98
(1) of the LOSC, every State shall require the master of a ship flying its flag to render
assistance to any person found at sea in danger of being lost, and to proceed with all possible
speed to the rescue of persons in distress. The term ‘any person’means that no discrimination
can be applied according to the status of those to be rescued. Furthermore, Article 98(2)
places a general obligation upon coastal States to promote search and rescue services.
The duty to render assistance is further amplified in the SOLAS Convention and the
1979 International Convention on Maritime Search and Rescue (the SAR Convention). In
this regard, Regulation V/33.1 of the SOLAS Convention clearly requires that:
[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.
The SAR Convention also requires the Parties to ensure that assistance is provided to any
person in distress at sea. Under the Convention, the Party responsible for the search and
rescue region in which such assistance is rendered is obliged to exercise primary responsibility
for ensuring that such coordination and cooperation occurs, so that survivors
assisted are disembarked from the assisting ship and delivered to a place of safety. In
this connection, a difficult issue arises of how to determine the place of safety. While
the SAR Convention, as amended in 2004, does not provide a clear answer to this
matter, a predominant view seems to be that the Party responsible for the search and
rescue region is neither bound to disembark the persons in its own territory, nor is there
a clear duty for coastal States to allow disembarkation, even though disembarking rescued
persons at the next port of call remains a practice. Thus a crucial gap exists between
rescue and disembarkation. In any case, according to the IMO Guidelines on the
Treatment of Persons Rescued at Sea, ‘[a]n assisting ship should not be considered a place
of safety based solely on the fact that the survivors are no longer in immediate danger
once aboard the ship’.
The legality of push-back operations in the high seas is also at issue in international
refugee law. In this regard, what is of particular importance is the principle of
non-refoulement. Under this principle, no refugee shall be expelled or returned to any
country where his or her life or freedom would be threatened. The transferring State
breaches the principle of non-refoulement when it transfers a person despite knowledge that
there is a risk of likely harm or when it transfers a person without conducting an adequate
assessment of risk. According to the prevailing view, this principle also applies on the high seas. In fact, the UN High Commissioner for Refugees (UNHCR) clearly stated: ‘The
principle of non-refoulement does not imply any geographical limitation.’ This view was
supported by the Inter-American Commission on Human Rights in The Haitian Centre for
Human Rights et al v United States. It can be argued, therefore, that intercepting States
are obliged to conform to the principle of non-refoulement when intercepting vessels
carrying asylum seekers or refugees on the high seas.
Furthermore, the application at sea of international human rights law must be considered.
The principle of non-refoulement is a fundamental component of the customary
international law concerning the prohibition of torture or cruel, inhuman or degrading
treatment or punishment. In contrast to the principle in refugee law, non-refoulement in
the human rights context is not predicated on any given status of the individual at risk.
An issue at point concerns the applicability of international human rights law to operations
in the high seas. In this regard, the Human Rights Committee in General Comment No. 31
on the nature of the general legal obligation on States Parties to the International Covenant
on Civil and Political Rights explicitly stated:
[A] State party must respect and ensure the rights laid down in the Covenant to anyone within
the power or effective control of that State Party, even if not situated within the territory of the
State Party.
Furthermore, the jurisprudence of the European Court of Human Rights supports the
application of the European Convention on Human Rights (ECHR) on the high seas.
A leading case in this matter is Medvedyev v France (2010). This case related to the
arrest by a French frigate of the Winner, a Cambodian ship suspected of drugs trafficking
on the high seas off Cape Verde. In this case, the Grand Chamber of the Court
considered:
[A]s this was a case of France having exercised full and exclusive control over the Winner and its
crew, at least de facto, from the time of its interception, in a continuous and uninterrupted
manner until they were tried in France, the applicants were effectively within France’s jurisdiction
for the purposes of Article 1 of the Convention [i.e. European Convention on Human Rights].
Related to this, the Court ruled:
[T]he special nature of the maritime environment relied upon by the Government in the instant
case cannot justify an area outside the law where ships’ crews are covered by no legal system
capable of affording them enjoyment of the rights and guarantees protected by the Convention
which the States have undertaken to secure to everyone within their jurisdiction.
The dictum was echoed by the same Court in the 2012 Hirsi case. This case concerned the
high seas interception and push-back to Libya of smuggled Somali and Eritrean nationals by
the Italian coastguard. In this case, the Grand Chamber of the European Court of Human
Rights considered that since ‘the applicants [Somali and Eritrean nationals] were under the
continuous and exclusive de jure and de facto control of the Italian authorities’, ‘the events
giving rise to the alleged violations fall within Italy’s “jurisdiction” within the meaning of
Article 1 of the Convention [i.e. European Convention on Human Rights]’. Specifically, the
Grand Chamber found that the transfer of the applicants to Libya by the Italian authorities
violated Article 3 of the ECHR because it exposed the applicants to the risk of arbitrary
repatriation. It also held that the obligations arising from Article 4 of Protocol No. 4 of the
Convention, which prohibits the collective expulsion of aliens, apply to interception on the
high seas by the authorities of a State. All in all, States intercepting on the high seas for
counter-migration purposes must comply with relevant rules of the law of the sea, international
refugee law and international human rights law.