1. NMTIOC Annual Conference
The interplay between Counter-Immigration Operations at Sea and Human Rights Law
By Dr. Efthymios Papastavridis

2. Introduction
The fight against irregular migration especially in the Mediterranean Sea challenges many different legal categories
1) Law of the sea: challenges with regard to search and rescue regime, the disembarkation of rescued persons, legal basis and the modus operandi of interception operations
2) International Human Rights Law: challenges as to the application of human rights on the high seas, as to which refugee and human rights are applicable on the high seas/see ECtHR case-law: Xhavara, Hirsi, Medvedyev, Women on Waves et al.
Different players involved: States, EU (FRONTEX): questions of attribution of responsibility

3. Some Preliminary Issues
There is no reference to human trafficking or smuggling of migrants in the UN Convention on the Law of the Sea (1982)
Contemporary ‘boat people’ include illicit migrants, victims of human trafficking/ ‘modern ‘slaves’, refugees-the proper classification inevitably takes place a posteriori
Maritime interception is often portrayed as a humanitarian practice-legally unsound, since rescue-at-sea and interception fall under different rubrics according to international law

4. The Law of the Sea I. Rescue-at-Sea
Search and Rescue: customary law codified in article 98 of 1982 LOSC
Article 98 (1): responsibility to rescue and provide assistance rests initially with the master of the ship
Article 98 (2): a general obligation of conduct on the part of coastal States to maintain search and rescue services as well as a general obligation of cooperation with other States.
1974 SOLAS and the 1979 SAR Convention
2004 Amendments: impose for the first time an obligation on States to ‘cooperate and coordinate’ to ensure that ships’ masters disembark rescued persons to a place safety.
Problem that there is no residual obligation of the coastal State to allow disembarkation on its own territory

5. The Law of the Sea II. Interception
Αrticle 110 of LOSC: no reference to migration as a separate legal basis for interception
The ‘absence of nationality’ seems to be the most relevant ground for interception (article 110 (1) (d) of LOSC)
Jurisdiction over migrants on stateless vessels? Two strands of thought: i) statelessness amounts to legal basis for jurisdiction; ii) need of another basis
The act of carrying migrants on the high seas is not an international crime as such; exception: ‘smuggling of migrants’

6. Interception based on other agreements
110 LOSC permits right of visit granted by treaty
e.g. article 8 of UN Smuggling Protocol (2000): need for explicit authorisation of the flag State
Bilateral Treaties: i) US practice (e.g. US-Haiti Exchange of Letters, 1981), ii) Italy (Italy-Albania, 1997 and Italy- Libya, ), ii) Spain with States from North and West Africa (Mauritania, Senegal, Cape Verde)
See e.g. Italy ‘push-back operations in 2009 more than 800 migrants were pushed back to Libya in 6 months
FRONTEX role in coordinating operations by States in third States’ waters, sometimes based on the above agreements
Ad hoc consent often the legal basis

7. Human Rights Law I. Extraterritoriality
Preliminary issue, yet of primary significance: does e.g. the ECHR apply on the high seas?
Strasbourg case-law provides clear answer: yes, in case of de jure and de facto control by State vessels or even by State agents
See inter alia the Xhavara v. Albania and Italy case (2001), Rigopoulos v. Spain (1999), Medvedyev v. France (2010), Hirsi v. Italy (2012)/ see also Inter-American Court, Haitian refugees; CAT, Marine I case and Sonko v. Spain cases
Question when the vessel/persons come under the jurisdiction of States and whether human rights can be divided and tailored?

8. Human Rights Law II. Applicable Rights
The applicable law is determined the ECHR, the EU Charter for Fundamental Rights, as part of EU law, ICCPR, CAT and customary law
Right to Life (article 2): No one shall be arbitrarily deprived of his life-principles of necessity and proportionality are the cornerstones on which each and every case of lethal force would be assessed
In Osman v UK (1999), Article 2 requires states not only to restrain from causing death but also to take measures to protect the lives of individuals within their jurisdiction. 
Xhavara case: the complaint under article 2 was rejected as inadmissible for non-exhaustion of local remedies

9. Prohibition of non-refoulement
Article 33(1) of the Refugee Convention (1951): no refugee should be returned to any country where he or she is likely to face persecution, other ill-treatment, or torture.
The principle of non-refoulement, see Article 3 of the CAT and ECHR and Ahmed v. Austria (1997, Saadi v. Italy, 2008 and M.S.S. v. Belgium and Greece (2011).
Hirsi v. Italy case (2012):The Grand Chamber held that “by transferring the applicants to Libya, the Italian authorities, in full knowledge of the facts, exposed them to treatment proscribed by the Convention” (para. 136).

10. The Right to Liberty and Security
Under Article 5 of ECHR, any detention must be in accordance with a procedure prescribed by law, which must be accessible, foreseeable and must afford legal protection to prevent arbitrary interferences of the right to liberty.
In the Medvedyev v. France case (2010): these safeguards also apply to interception and detention activities at sea
The issue of promptness was also before the Court: the duration of the deprivation of liberty suffered by the applicants was justified by ‘wholly exceptional circumstances’, in particular the time it inevitably took to get the vessel to France (see also Rigopoulos v. Spain case, 1999)

11. Other Rights in Need of Protection on the High Seas
Article 10 freedom of expression: see Women on Waves case (2009)
The right to effective remedy (e.g. article 13 of ECHR)(see Jabari v. Turkey and Hirsi v. Italy cases).
Collective Expulsion of Aliens (see article 4 of Protocol No. 4 to ECHR): first time in the Hirsi case: ’the transfer of the applicants to Libya had been carried out without any examination of each individual situation. The Italian authorities had merely embarked the applicants and then disembarked them in Libya, in breach of Article 4 of Protocol No. 4

12. Conclusions
Countering illicit immigration and human trafficking presents various challenges in relation to law of the sea and human rights law
Law of the sea consideration pertain mainly to the search and rescue regime and the thorny question of disembarkation and the need for clear legal basis for interception
Human Rights law: most relevant, in the sense of potential complaints to Strasbourg Court.
A question in close relation is definitely who bears responsibility? FRONTEX or Member States (cf. Behrami and Saramati cases)