1. Law of the Sea and Migration: Authority and Responsibility of Stakeholders, Rescue at Sea and Stowaways
Focus of my presentation – law of the sea and migration: especially the authority and responsibility of stakeholders, rescue at sea and stowaways. The context will be mainly with regard to clandestine migration by sea, whereby people use sea routes to enter a country without going through established immigration channels.
Many terms are used to describe this phenomenon – illegal migrants, irregular migrants, undocumented migrants, unauthorized arrivals.
Political Perspective: “Irregular migration” is a very sensitive issue, particularly for destination countries e.g. Malta, Italy
Vita Onwuasoanya
Associate Ocean Affairs and Law of the Sea Officer
DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA
Office of Legal Affairs, United Nations

2. Mixed migration Mixed migration
Movements of people increasingly mixed: asylum seekers & refugees; trafficked/ smuggled persons; migrants
Similar routes
Similar modes of transport
“Mixed migration” – term used by UNHCR - migration at the same time of people with different status under international law i.e. who may use the same routes to migrate and move together, as stowaways or through sophisticated smuggling and trafficking operations/networks. Thus, a single boat could carry people with different status under international law – refugees and asylum- seekers, smuggled migrants, victims of trafficking, possibly children. Media – doesn’t usually draw out these distinctions – all arrivals are usually referred to as “illegal” migrants.
There is sometimes necessity for rescue operations by merchant ships or interception by coastal patrols. A number of areas of international law may apply to such encounters – law of the sea, international law relating to shipping, refugee law, human rights law and international law concerning transnational organized crime, in particular trafficking and smuggling.
In such situations, people will have different rights and protections. All are entitled to protection of their human rights under international law. Refugees and asylum-seekers will have international protection needs, the most important of which is the principle of non-refoulement (which is a prohibition against the expulsion or forcible return of refugees). Victims of trafficking may also be entitled to protection under international criminal law. 2

3. Migration Flows
Slide shows general patterns of migration to Europe Yemen as examples. There are no reliable statistics with regard to the actual number of migrants in migration flows worldwide due mainly to the clandestine nature of irregular migration as well as the fact that some perish at sea.
Countries most affected are in Europe especially– Spain (including Canary Islands), Italy - Lampedusa Island (part of Italy miles off the coast of Libya), Malta and Greece.
Source – boats leaving from Libya, Tunisia and Turkey. Now as there are increased efforts to stop these journeys in the first place in some countries (e.g. Libya), migration routes have changed and so boats are setting off from further away, e.g. Mauritania, Guinea and even Ghana.
Other Regions: South America and the Caribbean to North America; South east Asia- Rohinga people from Myannmar have used boats to travel to other countries in the region; Oceania, people traveling by boat from Indonesia destined for Australia
Also, thousands of people migrate from the Horn of Africa – mainly from Somalia, Ethiopia and Djibouti – attempt to cross the Gulf of Aden to reach Yemen. They make their way to Bossaso in the northern semi-autonomous region of Puntland. In this lawless area, smuggler networks have free reign and innocent and desperate civilians pay up to US$150 to make the perilous trip across the Gulf of Aden.

4. States of Destination or disembarkation
Stakeholders
Flag States
States of Origin
Transit States
States of Destination or disembarkation
Migration by sea, raises obligations for different stakeholders in different contexts especially the flag States of vessels which may carry irregular migrants or which may be involved in the rescue of persons in distress at sea, as well as the States of destination or disembarkation. All of these will be addressed in more detail later.

5. Migration by sea Outline of Presentation
Law of the sea
Rescue of persons in distress at sea
Trafficking and smuggling by sea
Interception/Interdiction at sea
Stowaways
Presentation – focus on certain areas:
UNCLOS- briefly discuss maritime zones and jurisdiction and rights of States in respect of clandestine migration;
Obligations under international law for masters of ships to assist persons in distress at sea and rescue them; also discuss disembarkation of rescued persons and delivery to a place of safety;
Action that can be taken at sea in relation to a vessel suspected of being engaged in smuggling;
Legal framework relating to stowaways, in particular the issue of disembarkation of a stowaway from a ship.

6. 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
First topic – law of the sea. Slide – contains an overview of what will be covered in this topic.
Maritime zones – rights and jurisdiction of States in maritime zones, focussing on immigration laws and rights of navigation by ships.
Flag State jurisdiction and duties. Also will address the jurisdiction and duties of flag States over ships that fly their flag. 6

7. Overview of UNCLOS
United Nations Convention on the Law of the Sea , adopted in 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
The United Nations Convention on the Law of the Sea is the keystone of the international law of the sea.
The Convention was concluded on 10 December 1982 (in Montego Bay, Jamaica) and entered into force on 16 November 1994.
The Convention is one of the most important and most widely ratified treaties of the 20th century.
UNCLOS is commonly referred to as a “Constitution for the Oceans,” as it addresses every aspect of the uses and resources of the sea.
The scope of UNCLOS is vast. It has over 300 articles and covers a range of subjects relating to oceans including:
(i) maritime zones;
(ii) rights of navigation by ships;
(iii) peace and security;
(iv) conservation and management of living marine resources (eg fish);
(v) protection and preservation of the marine environment;
(vi) scientific research;
(vii) activities on the seabed beyond the limits of national jurisdiction;
(viii) settlement of disputes. 7

8. Limits of maritime zones
Discussing only some of the maritime zones under UNCLOS, namely internal waters, territorial seas, contiguous zone, EEZ and high seas.
Coastal States – jurisdiction and rights with respect to immigration. Jurisdiction and rights of flag States whose vessels transport migrants.

9. Territorial Sea
Sovereignty of a coastal State extends beyond its land territory and internal waters to an adjacent belt of sea: the territorial sea.
Breadth: up to 12 nautical miles, measured from the baselines.
Entitlement: inherent part of the territory of a coastal State- Legislative and enforcement jurisdiction
Scope: sea; air space; seabed; and subsoil.
Read slide.
Most States accept the 12 mile limit of the territorial sea as set out in UNCLOS.
Coastal State enjoys full sovereignty in respect of the territorial sea.
What does this mean? In general terms, a coastal State can makes laws governing the use of the sea and can take action to enforce its laws in the territorial sea. Of course in doing so, the State must act in accordance with international law. 9

10. Innocent passage through territorial sea
Foreign ships have the right of innocent passage through the territorial sea of a coastal State (article 19):
Continuous and expeditious passage through territorial sea or to/from internal waters
Subject to certain laws of coastal State (eg prevention of infringement of customs, fiscal, immigration or sanitary laws)
Foreign ships have the right of ‘innocent passage’ through the territorial sea of a coastal State.
Passage: continuous and expeditious navigation for the purpose of:
(i) traversing the territorial sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
(ii) proceeding to or from internal waters or a call at such roadstead or port facility.
The coastal State may regulate innocent passage by foreign ships through its territorial sea.
Foreign ships may be subject to laws and regulations of the coastal State on specified matters, for example, prevention of infringement of immigration laws. 10

11. Innocent passage through territorial sea (cont.)
Passage of a foreign ship is innocent so long as it is not prejudicial to the good order, or security of the coastal State (article 19)
Passage considered to be prejudicial if foreign ship engages in certain activities including:
the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws or regulations of the coastal State
Coastal State has right to take necessary steps in its territorial sea to prevent passage which is not innocent (article 25)
Passage by a foreign ship is regarded as innocent as long as it is not prejudicial to the peace, good order or security of the coastal State.
UNLCOS provides guidance on this point by listing various activities which are considered to be prejudicial to the peace, good order or security of the coastal State. This includes loading or unloading of any person contrary to immigration laws.
Other circumstances in which a ship would not be regarded as engaging in innocent passage, as set out in article 19 – threat or use of force in relation to the coastal State, exercise or practice with weapons, collecting information to the prejudice of the defence or security of the coastal State, wilful or serious pollution, fishing activities etc.
Coastal State has certain enforcement rights to prevent passage of a foreign ship which is not innocent. The coastal State can exercise some control over the ship. For example, this could involve stopping and boarding the ship and taking action under its national laws to deal with infringements of its immigration laws.
Note:
An exception to innocent passage is provided for in Article 18 which provides for a right to stop and anchor in order to render assistance to persons in danger or in distress. This will be dealt with in more detail later when we look at the duty to render assistance as provided for under Article 98. 11

12. 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)
READ. About 1/3 of coastal States have proclaimed a contiguous zone.
Legal regime relating to the contiguous zone: the coastal State may exercise the control necessary to:
(i) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;
(ii) punish infringement of the above laws and regulations committed within its territory or territorial sea. 12

13. Exclusive Economic Zone (EEZ)
The exclusive economic zone (EEZ) is an area beyond and adjacent to the territorial sea (articles 55-58).
Breadth: from the outer limit of the territorial sea to up to 200 nautical miles, measured from the baselines.
Entitlement: the coastal State may proclaim it.
Scope: sea; seabed; and subsoil.
COVER EEZ BRIEFLY
The Convention embodies the innovative concept of the exclusive economic zone (EEZ). READ first 2 bullets. MAP. The EEZ overlaps the Contiguous zone for 12 miles.
There is no obligation to claim an EEZ but most States have. 13

14. EEZ (cont.) A coastal State has certain sovereign rights, including:
Exploring and exploiting, conserving and managing natural resources, whether living or non-living
A coastal State has exclusive jurisdiction, including regarding the establishment and use of artificial islands, installations and structures over which it may exercise jurisdiction including with respect to customs, fiscal, health, safety and immigration laws
The coastal State has certain sovereign rights in its EEZ such as sovereign rights to exploit natural resources in its EEZ, for example through fishing and drilling for oil and gas.
The coastal State also has jurisdiction in its EEZ regarding
establishment and use of artificial islands, installations and structures;
marine scientific research; and
protection and preservation of marine environment.
Highlight jurisdiction relating to artificial islands etc and that this jurisdiction extends to immigration laws ( article 60). Read 2nd bullet point.
Other States – enjoy certain freedoms in the EEZ of a coastal State (eg freedom of navigation). We will discuss these freedoms when we come to discuss the legal regime relating to the high seas. 14

15. High seas
High seas: parts of the sea which are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State
High seas are not subject to the jurisdiction of any State
Open to all States, whether coastal or land-locked
High seas are reserved for peaceful purposes
Freedoms of high seas include navigation (article 87)
HIGH SEAS
The legal regime of high seas is important as some States take action on high seas in respect of clandestine migration, for example, combating smuggling at sea and also interdiction and interception of boats carrying migrants. We will talk more about these specific activities later.
The high seas is not subject to the jurisdiction of any State. This is in contrast to other zones mentioned earlier where coastal States have either sovereignty, sovereign rights, jurisdiction or rights to exercise control in the maritime zone.
Important principle: freedom of navigation 15

16. Flag State jurisdiction
Every State has the right to sail ships flying its flag & ships have the nationality of the flag flown (article 91)
Flag State has exclusive jurisdiction over ships on the high seas (article 92). Exceptions under UNCLOS include:
Piracy
Unauthorized broadcasting
Slave trading
Illicit drug trafficking
Ships without nationality
Ships hiding real nationality
Freedom of navigation means that any State has the right to sail ships flying its flag. Ships have the nationality of the flag of the State it flies.
An important principle of the law of the sea, is that the flag State has the exclusive right to exercise jurisdiction over its ships on the high seas. This essentially means that :
the flag State has the sole right to make laws concerning the ship, and also the sole right to punish violations of the law.
Also, a foreign ship cannot interfere with a ship flying the flag of another State.
Exclusive flag State jurisdiction over a ship is a general rule but there are a number of exceptions in UNCLOS and in other treaties. One such treaty is the Smuggling Protocol – will cover this later.
Exceptions to exclusive flag State jurisdiction essentially reflect that certain activities on the high seas are prohibited.
Read list under second bullet point (drawn from article 110):
Ships without nationality – eg, a flag State could revoke the right of a ship to fly its flag. That ship would then be without nationality.
Ships hiding real nationality – refers to the situation where a ship, which is flying a foreign flag or refuses to fly a flag, is reasonably suspected of being of the same nationality as a warship which encounters it on the high seas.
For these exceptions, a State other than the flag State can exercise some limited jurisdiction over the foreign ship. For example, a warship, in cases where there are reasonable grounds for suspecting that a foreign ship is engaged in these activities, can visit and board the foreign ship on the high seas and in EEZs (articles 110 and 58). 16

17. Flag State Jurisdiction (cont.)
Another exception to exclusive flag State jurisdiction - right of hot pursuit (article 111):
Violations by foreign ship of a coastal State’s laws in internal waters or the territorial sea. Right also applies in other zones in certain cases.
Exercised by warships or military aircraft
Pursuit must begin in internal waters, territorial sea, the contiguous zone, EEZ
Must give signal to stop
Pursuit must be continuous
Cease pursuit if pursued ship enters territorial sea of another coastal State
Another exception to exclusive flag State jurisdiction – right of hot pursuit. Right of hot pursuit allows a warship or military aircraft of a State to pursue a foreign ship which has violated the coastal State’s laws. Government ship can pursue and arrest the ship on the high seas.
Right of hot pursuit arises in the case of violation by a foreign ship of a coastal State’s law in internal waters or the territorial sea, e.g. violation of immigration laws. Also extends to foreign ship in the contiguous zone which has violated immigration laws and violation of a coastal State laws regarding the EEZ – e.g. laws relating to fishing.
Number of rules regarding the conduct of hot pursuit:
Must commence in area under national jurisdiction, i.e. in internal waters, the territorial sea, contiguous zone or in the EEZ;
Signal must given to the foreign vessel to stop.
Pursuing vessel may use any necessary and reasonable force to arrest the ship
The pursuit must end if the foreign ship enters the territorial sea of other State or the flag State.
Example of a hot pursuit. In 2003 Australian naval vessels engaged in hot pursuit of foreign fishing vessel (Uruguay flag) suspected of illegal fishing of patagonian toothfish. The hot pursuit lasted for 21 days. 17

18. Duties of Flag States Duties of the flag State (article 94):
Exercise effective control over ships flying its flag
Measures to ensure safety at sea
Measures must conform with generally accepted international regulations (eg IMO Conventions)
The operation of substandard ships is not permitted
Ensure that their vessels comply with international law and not be used for illicit purposes
Flag States grant nationality to ships by means of registration and by authorizing ships to fly their flag.
The three flag states with the largest merchant fleets flying their flags are Panama, Liberia and the Bahamas. Some landlocked States are flag States for example Switzerland and Mongolia.
UNCLOS sets out duties of flag States. READ SLIDE.
In respect of clandestine migration by sea, many journeys by sea are taken on unseaworthy ships. Flag States are required to ensure that ship are seaworthy and that conditions onboard the ship are safe e.g. the ship is not overcrowded.
There is also a duty to render assistance as mentioned already (article 98), which will be addressed shortly. 18

19. Rescue of Persons in Distress at Sea Overview
Legal regime relating to rescue of persons in distress
Obligation to assist and rescue persons in distress
Obligations in respect of disembarkation and delivery to a place of safety
Legal regime – obligation to assist and rescue those in distress at sea. Humanitarian issue.
Critical issue - how to bring a rescue operation to an end by disembarking those rescued from the rescuing ship and delivering those persons to a place of safety.
Context – there can be difficulties in finding a State which will allow disembarkation of rescued persons. Some States in certain regions around the world receive many migrants arriving by sea. Burdens – identifying those with refugee status – repatriation of those who are not entitled to stay. 19

20. Rescue of persons in distress at sea Legal Regime
Obligation of masters of ships to render assistance to persons in distress at sea is long-established maritime tradition and obligation
A number of Conventions contain obligations to provide assistance and to rescue:
obligations of masters of ships, flag States, and coastal States
Focus on UNCLOS and IMO Conventions and instruments
READ SLIDE 20

21. Duty to Render Assistance under Article 98 of UNCLOS
Obligation of a master of a ship to :
render assistance to any person found at sea in danger of being lost
proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him
Obligation applies in all maritime zones - the high seas, territorial sea, EEZ and other zones
UNCLOS gives expression to the general tradition and practice of all seafarers regarding the rendering of assistance to persons or ships in distress at sea.
Article 98 of UNCLOS is based on the provisions of older Conventions which also set out the duty of shipmasters to assist.
UNCLOS imposes a duty on every flag State to require the master of a ship flying its flag, so far as he can do so without serious danger to the ship, the crew or the passengers:
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, if informed of their need of assistance, in so far as such action may reasonably be expected of him.
The duty to render assistance is also not restricted to the high seas, but also applies in the EEZ, the territorial sea, contiguous zone and in other maritime zones.
Recall that in territorial sea foreign ships have right of innocent passage which must be continuous and expeditious passage. There is an exception to this requirement, as noted earlier - UNCLOS permits a foreign ship to stop and anchor if it is necessary for the purpose of rendering assistance to persons in danger or distress (article 18). 21

22. 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.” .
UNCLOS also requires coastal States to act in order to complement the duty to assist persons in distress at sea.
It requires that States “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 neighboring States for this purpose. 22

23. International Convention for the Safety of Life at Sea, 1974 (SOLAS)
Obligation of masters:
“The master of a ship at sea which is in a position to be able to provide assistance, on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so…”
Coastal States required to establish search and rescue services to ensure safety of navigation around its coast
SOLAS is a convention developed through the IMO and is the most important convention regarding the safety of merchant ships.
Also covers search and rescue – imposes obligations on flag States and coastal States, very similar to those of UNCLOS. SOLAS also imposes an obligation on a master of ship to assist persons in distress at sea and to rescue them.
Obligation of coastal States – read second bullet point. 23

24. International Convention on Maritime Search and Rescue, 1979 (SAR Convention)
International framework for search and rescue operations worldwide
Objective: no matter where an accident occurs, rescue will be coordinated by a SAR organization and, when necessary, by cooperation between neighbouring SAR organizations
Parties agree to be responsible for search and rescue in specified areas
Rescue Coordination Centres and Rescue Sub-centres
SAR Convention is another IMO Convention.
READ – first 2 bullet points.
SAR Convention - Regional approach adopted to search and rescue. 13 search and rescue zones across the world. Within each zone, States agree to accept responsibility for providing search and rescue services for a specified SAR region – a Party may agree to be solely responsible for a particular region or Parties might agree to share responsibility for a particular region (para 2.1.3, 2.1.4, 2.1.9).
In the SAR Convention, there is an emphasis on cooperation between Parties. Para – general obligation of Parties to cooperate and coordinate with regard to search and rescue organizations and to coordinate SAR operations with those of neighbouring States.
Regional Coordination Centres (RCC) – responsible for coordinating the conduct of SAR operations within a SAR region. Rescue Sub-centres – role is to assist the RCC.
There are problems with capacity of coastal States to establish search and rescue facilities, particularly in Africa. IMO Capacity building programmes aim to establish 5 RCCs in south, west and east Africa. The first African regional MRCC took place in Kenya in 2006, and was followed by South Africa in 2007 and Nigeria, in The fourth MRCC, in Monrovia, Liberia, was commissioned in Recently (2009), the commissioning of regional search and rescue sub-centres in Tanzania and Seychelles took place.

25. 25

26. 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 )
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)
READ FIRST BULLET POINT
Note – definition of rescue sets out when the rescue ends – that is, when they are delivered to a place of safety. Note that nowhere in the legal framework I have just described is there any provision setting out where persons rescued should be disembarked from the rescuing ship, or the timeframe for doing so, where is a place of safety.
For master of a commercial ship disembarkation is a critical issue. A rescue may involve the diversion from the ship’s intended route and this has cost implications. Also the presence of rescued persons on board a ship, like stowaways, creates challenges in terms of the safety of the ship, meeting any medical needs and also providing food and water to them.
There is obviously a humanitarian need to disembark rescued persons. Why didn’t legal framework address the issue of where to take rescued persons so that they could leave the rescuing ship? One suggestion - it was obvious that the next port of call was the place for rescued persons to be disembarked. They would then be returned to their country of origin.
This assumption was challenged by the refugee crisis in 1970s and 80s – people from Indochina (Vietnam, Cambodia and Laos) fled by boat across South China sea. These refugees could not be returned to their country of origin. There were problems in getting States to agree to disembark rescued refugees. International cooperation was need to respond to the crisis – cooperation to resettle refugees across the world. Those countries which allowed rescued persons to be disembarked knew that there was resettlement programme for refugees.
The gaps in the legal framework were highlighted by the case in August 2001 involving the rescue by the Norwegian ship called “Tampa”, which
rescued 433 people from a boat which was found sinking in the Indian Ocean, between Indonesia and Christmas Island (Australian territory). The boat had left from Indonesia. Those onboard – were from Afghanistan, Pakistan, Iraq and Sri Lanka – most from Afghanistan. Claimed to be refugees/asylum seekers.
Captain first headed toward Indonesia as the rescue was carried out in the Indonesian search and rescue zone. Those rescued apparently did not want to go to Indonesia and made threats, and the Captain was asked to change course and go to Christmas Island. (Next port of call for Tampa was Singapore).
It took a very significant amount of time for the Australian authorities to resolve the question of where the rescued people would be taken to from the ship (8 days in total). Negotiations involved Norway as the flag State and a number of countries in the Pacific region. Very politically charged incident in Australia. Eventually the captain of the ship Tampa entered territorial waters without the permission of Australian authorities and the Australian military boarded the ship.
Australia reached an agreement with New Zealand and Nauru to allow the rescued persons to be taken to their countries. Refugees have been settled in a number of countries (Oz, NZ, Sweden, Canada etc ). 26

27. 2004 Amendments to SOLAS and SAR Conventions
IMO review of the SOLAS and SAR Conventions. Object of the review- take action to ensure that:
survivors are provided assistance regardless of nationality or status or the circumstances in which they are found
ships are able to deliver the survivors to a place of safety
survivors treated in accordance with relevant international agreements and long-standing humanitarian maritime traditions
Led to adoption of amendments, which entered into force on 1 July 2006 27

28. 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
The 2004 amendments to the SOLAS and SAR Convention are very significant. Amendments entered into force on 1 July 2006 The obligation of masters to rescue is complemented by obligations of States to cooperate and coordinate to relieve the master of the responsibility to provide follow-up care for survivors and to deliver the rescued persons to a place of safety. Also serve to maintain the integrity of the search and rescue services.
Note that the obligations under the amendments only bind those States which have accepted those amendments – not all parties to the SOLAS and SAR Convention have accepted them.
READ first bullet – important from the perspective of shipowners and the reality that rescue may delay the ship’s voyage.
The State responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring that States cooperate and coordinate
Second bullet point – object of the obligation to “co-ordinate and co-operate” is also to ensure that those rescued are disembarked from the assisting ship and delivered to a place of safety within a reasonable time.
Cooperation and coordination required to achieve 2 things – 1) masters released from their obligations with minimum deviation and 2) disembarkation of survivors and delivery to place of safety. .
Read third bullet point. Note – two different concepts – disembarkation from assisting ship; delivery to a place of safety. Disembarkation allows the master to proceed with the ship’s voyage. Return to the concept of a “place of safety” later. 28

29. IMO Guidelines on the Treatment of Persons Rescued at Sea
Non-binding IMO Guidelines provide guidance to Governments and shipmasters
Rescue Coordination Centre to obtain information from the master of the assisting ship
Shipmasters should seek to ensure that survivors are not disembarked to a place where safety would be jeopardized
Guidance on a “place of safety”
Non-SAR considerations, e.g. status of survivors; security or law enforcement concerns
At the same time as the amendments to the SOLAS and SAR Conventions, IMO also adopted associated Guidelines on the Treatment of Persons Rescued at Sea.
Under the Guidelines, the RCC is to obtain certain information from the master, including his or her preferred arrangements for disembarking the survivors, the continuing safety of the assisting ship and information about the survivors including their health and any special medical needs
Place of safety – is not defined in the amendments to SOLAS and SAR. IMO guidelines provide the following guidance regarding what may be considered “a place of safety”:
What is a place of safety? Where safety of life is no longer threatened and where basic human needs are met
Place from which transportation to next or final destination can be made – i.e., can be temporary
Generally, assisting ship should not be a place of safety. Can only be a temporary place of safety
May be on land or aboard a suitable vessel until survivors disembarked to next destination
Need to avoid disembarkation in territories where the lives and freedoms of refugees and asylum-seekers would be threatened.
Consider on a case by case basis
The Guidelines address non SAR Considerations, e.g., the status of survivors (refugees or irregular migrants), security or law enforcement concerns. The Guidelines note that authorities can often handle these matters once survivors have been delivered to a place of safety. Guidelines go on to state that operations such as screening and status assessment that go beyond rendering assistance to persons in distress should not be allowed to hinder the provisions of such assistance or unduly delay disembarkation of survivors from the assisting ships. 29

30. Further IMO consideration of the treatment of persons rescued at sea
IMO Facilitation Committee Circular (FAL.3/Circ.194) - Principles relating to administrative procedures for disembarking persons rescued at sea:
Coordination between relevant national authorities
Procedures after disembarkation to a place of safety, e.g. screening and status assessment
Coordination-if swift disembarkation elsewhere not possible, then party responsible for SAR region should accept disembarkation of persons rescued into a place of safety
Cooperation to facilitate return or repatriation of persons rescued. For asylum seekers, international protection principles should be observed
Maritime Safety Committee also examining issue of disembarkation
Also consulting on further action to protect safety of persons rescued at sea (MSC 87/WP.10/Add.1- draft report)
After the SOLAS and SAR Amendments entered into force, concerns still remain in shipping community about cooperation and coordination regarding disembarkation of rescued persons. Complex issues to be resolved, negotiations can involve many parties in addition to master and ship-owner – various national authorities of States responsible for the SAR region e.g. search and rescue organizations, immigration authorities, and more than one State may be involved e.g. States of nationality of persons rescued, coastal States in the planned route of the rescuing ship etc.
Spain and Italy in particular have expressed concerns that if there is not action, ship masters may not comply with their obligations to render assistance to persons in distress at sea.
At the IMO, 2 of its Committees are addressing these concerns, the Facilitation Committee and Maritime Safety Committee.
Some of the problems identified re disembarkation – recurring, time consuming case-by case negotiations which can prolong the disembarkation.
Facilitation Committee in January 2009 issued Principles… identify 5 principles that should be incorporated in administrative procedures of States t- objective is to harmonize procedures around world and make them efficient and predictable.
In May 2010, the MSC noted progress towards the establishment of a group involving all the interested parties, relevant agencies and regional institutions to develop regional arrangements. 30

31. Trafficking and Smuggling
United Nations Convention on Transnational Organized Crime, 2000
Protocol Against the Smuggling of Migrants by Land, Sea and Air, 2000
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000
Trafficking vs smuggling
Clandestine migration by sea – many people are smuggled or trafficked. Many people prepared to pay enormous sums to be smuggled into certain countries. Migrants take incredible risks with their lives by taking dangerous journeys at sea in unsafe and overcrowded boats. Their lives are also in the hands of violent smugglers and traffickers. There are reports of people who have been thrown overboard and forced to swim to shore.
The course has already covered in some detail trafficking and smuggling. I will be covering that part of the law which relates to smuggling by sea.
Ask participants to explain the difference between trafficking and smuggling. [Answer: Trafficking – the victims of trafficking do not consent to their movement by traffickers. There is an element of duress and the relationship between the trafficker and victim extends beyond the movement of the victim. On the other hand, smuggling involves the payment of money or other benefit in order to gain illegal entry into country. Those persons who are smuggled agree to this, and there is no element of an ongoing relationship after the migrant has been smuggled.]
History of the Smuggling Protocol. In the late 1990s, Italy called for a international treaty to deal with the smuggling of people by sea. This was in response to unprecedented number of migrants arriving by sea (particularly form Turkey). It was clear that organized smuggling rings where involved – need for an international response.
The instrument which was developed was a Protocol to the United Nations Convention on Transnational Organized Crime. It entered into force on 28 January 2004. 31

32. Smuggling Protocol
States are required to cooperate to prevent and suppress the smuggling of migrants, including by sea (article 7)
A State party, other than the flag State, can board, search or take other appropriate action against a vessel suspected of being engaged in smuggling (article 8):
Action must be authorized by the flag State, unless necessary to take action to relieve imminent danger
States can take measures against ships without nationality
READ – first bullet point.
Recall earlier in the discussion of Maritime Zones, we discussed the principle of freedom of navigation on the high seas and in EEZs. Also discussed the exclusive jurisdiction of the flag State over a ship as well as exceptions e.g. in the case of piracy.
The Smuggling Protocol creates another exception to the general rule of flag State jurisdiction. The Protocol is based on the based on article 17 of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
Boarding and Inspection: The Protocol permits a State party, other than the flag State, to board, search or take other appropriate action against a vessel suspected of being engaged in smuggling of migrants by sea. The Protocol is intended to cover vessels “engaged” both directly and indirectly in the smuggling of migrants, thus also covering mother ships (which transport migrants on the high seas and later transfer them to smaller ships).
To take action, both the flag State and the boarding State must be parties to the Smuggling Protocol. Article 8 sets out procedural steps which must be taken before action can be taken:
the State which is seeking to take action against a vessel must contact the flag State, request confirmation from the registry of the flag State that the vessel is registered in that State
if this is confirmed, the boarding State must request authorization from the flag State to board and search the vessel, and to take appropriate measures If there is evidence that the vessel is engaged in smuggling.
The flag State is required to respond expeditiously with requests. No additional measures can be taken by the State boarding and inspecting the vessel without the express authorization of the flag State, unless it is necessary to take action to relieve imminent danger to the lives of the persons onboard or there are separate agreements authorizing action.
Measures can also be taken against ships without nationality. 32

33. Smuggling Protocol
Safeguards when action taken to board and inspect a vessel suspected of engaging in smuggling include (article 9):
Action can only be taken by military warships or other government ships or aircraft
Boarding State must ensure the humane treatment of the persons onboard
The rights of the coastal State or the authority of the flag State are not affected
Read first bullet point.
Action can only be taken by warships or other government ships (e.g. coastguard vessel) or aircraft.
When taking measures against a vessel, the boarding State must ensure the humane treatment of the persons on board, take due account of the need to prevent the endangerment of the security of the vessel or its cargo; not prejudice the commercial or legal interests of the flag State or any other interested State; and ensure within the available means that any measure taken is environmentally sound.
Measures must not interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea, or the authority of the flag State to exercise jurisdiction and control in administrative, technical and social matters involving the vessel.
Article 8 does not mention which maritime zones in which boarding and inspection of foreign ship suspected of engaged in smuggling can take place. Important safeguard is set out in the Protocol – rights of the coastal State must not be affected by a State which seeks to board and inspect a foreign ship. Question: What about the territorial sea of a coastal State?? 33

34. Smuggling Protocol
Nothing is to affect the rights and duties of States and individuals under international law, including (article 19):
international humanitarian law
international human rights law and
the Refugee Convention and its Protocol and the principle of non refoulement
READ SLIDE
Unlike the Smuggling Protocol, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, which entered into force on 25 December 2003, does not contain a section specifically addressing the suppression of trafficking of persons by sea.
In reality, a vessel suspected of being engaged in trafficking of persons would also be suspected as being engaged in smuggling. The two activities often occur at the same time. If it is found that the persons onboard a vessel are being trafficking then, the Trafficking Protocol contains a number of safeguards to protect the victims of trafficking. Parties must provide assistance to and protect victims of trafficking. 34

35. IMO Interim Measures re Trafficking and Transport of Migrants
IMO Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea, 1998
Focus on preventing the operation of ships that violate IMO Conventions regarding safety at sea by:
preventing ships in port from sailing;
intercepting ships on the high seas and in EEZs
The IMO Interim Measures adopted in 1998 and revised in 2001, advise Governments of measures they can take pending the entry into force of the Smuggling Protocol. They are still pertinent today for any State that is not yet a party to the Protocol.
Voluntary and non-binding measures.
Unsafe practices are defined in the Measures as "any practice which involves operating a ship that is: (1) obviously in conditions which violate fundamental principles of safety at sea, in particular those of the International Convention for the Safety of Life at Sea (SOLAS); or (2) not properly manned, equipped or licensed for carrying passengers on international voyages, and thereby constitute a serious danger for the lives or the health of the persons on board, including the conditions for embarkation and disembarkation. The carriage of more than 12 persons on board a cargo ship constitutes an automatic infringement of SOLAS.
The Measures recommend that States eliminate unsafe practices associated with the trafficking or transport of migrants by sea, by including, ensuring compliance with SOLAS; collecting and disseminating information on ships believed to be engaged in such unsafe practices; taking appropriate action against masters, officers and crew members engaged in unsafe practices; and preventing any such ships, if in port, from sailing.
The Interim Measures also provide for the possibility of intercepting/interception of ships engaged in unsafe practices on the high seas and in the exclusive economic zone. They also provide that “Measures taken, adopted or implemented pursuant to the circular to combat unsafe practices associated with the trafficking or transport of migrants by sea should be in conformity with the international law of the sea and all generally accepted relevant international instruments, such as the UN 1951 Convention and the 1967 Protocol relating to the Status of Refugees". Such measures should also be in conformity with international law pertaining to flag State jurisdiction and the rights and obligations of the coastal State. Many of the IMO Measures were incorporated in the Smuggling Protocol. 35

36. Reported Incidents (IMO)
2009:
Total reported incidents: 381
Total number of migrants: 9057
Middle East- 5266; Africa- 1372; Asia-47; Europe-34
No comprehensive statistics available, only what is reported to IMO.
All six regions of the world are witnessing intense or growing migratory activities.
Countries most affected are in Europe especially– Spain (including Canary Islands), Italy - Lampedusa Island (part of Italy miles off the coast of Libya), Malta and Greece, e.g. Greece reported to the IMO that during the second half of 2009, 324 incidents related to the transport of illegal migrants by sea occurred in their territorial waters, involving 5724 migrants.
Source – boats leaving from Libya, Tunisia and Turkey. Now as there are increased efforts to stop these journeys in the first place in some countries (e.g. Libya), migration routes have changed and so boats are setting off from further away, e.g. Mauritania, Guinea and even Ghana.
Every year thousands of people in the Horn of Africa – mainly from Somalia, Ethiopian and Djibouti – attempt to cross the Gulf of Aden to reach Yemen. They make their way to Bossaso in the northern semi-autonomous region of Puntland. In this lawless area, smuggler networks have free reign and innocent and desperate civilians pay up to US$150 to make the perilous trip across the Gulf of Aden.
Other Regions: South America and the Caribbean to North America; South east Asia- Rohinga people from Myannmar have used boats to travel to other countries in the region; Oceania, people traveling by boat from Indonesia destined for Australia 36

37. 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
There are concerns that interdiction/ interception operations are being labelled rescue operations:
Example: a coast guard vessel comes across an unseaworthy ship overloaded with people and the ship is not sinking. Action is taken to transfer the passengers on board to the coastguard ship – is that a rescue of persons in distress at sea? Can a rescue take place when the ship is not sinking? On the other hand, isn’t it reasonable to rescue the people onboard when a boat is at risk of sinking in the future?
In this scenario we come back to the issue of disembarkation – who is responsible for ensuring that the people taken from the boat are disembarked from the coastguard vessel and delivered to a place of safety? If the coastguard vessel takes the people back to its home country and delivers them to a place of safety, then there is no problem. 37

38. Stowaways Definition of a stowaway:
“person who is secreted on the ship or in cargo which is subsequently loaded onto the ship, without the consent of the shipowner or the master or any other responsible person, who is detected on board after the ship has departed from a port and reported as a stowaway by the master to the appropriate authorities”
Being a stowaway on board a ship is one way of migrating to a country without going through the normal immigration channels.
Stowaways can lead to problems onboard for the shipmaster and the crew – limited food and water supplies; may be regarded as posing a risk to the safety of the crew, diversion of crew resources.
Most obvious issue – where are the stowaways going to be disembarked from the ship?
The IMO has developed international treaties and non-binding guidelines which address stowaways.
There are two Conventions which address stowaways:
The 1957 International Convention relating to Stowaways – it has not entered into force and it does not appear that it will.
The IMO Convention on Facilitation of International Maritime Traffic. Definition of a stowaway on the slide is from this convention.

39. Stowaways (cont.)
IMO Convention on Facilitation of International Maritime Traffic contains:
security measures for preventing stowaways; and
measures regarding the disembarkation of stowaways
IMO Guidelines on Resolution of Cases of Stowaways
Facilitation Convention was amended in 2002 to incorporate new standards and recommended practices regarding stowaways. These amendments entered into force on 1 May 2003.
Guidelines – are similar to the provisions in the FAL Convention.

40. 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
The new measures include a list of minimum security arrangements that should be put in place by ships when calling at ports where there is a risk of stowaway embarkation. The new measures also call for cooperation between port authorities and other relevant authorities, such as police, customs and immigration to combat smuggling of people.
Masters are required to take appropriate measures to ensure the security, general health, welfare and safety of any stowaway while on board. This is an important provision, which is however, unfortunately not always observed. There have been reports of stowaways having been thrown overboard by the crew and master of the ship – sometimes motivated by the fact that it proved impossible to find a port State that would permit the disembarkation of the stowaways.
New measures provide a framework for resolution of case of stowaways. New measures involve various actors – masters of ships, ship owners and authorities of the ports where ship calls during its voyage.
As a general rule, masters must not deviate from the planned voyage to seek the disembarkation of stowaways discovered on board the ship after it has left the territorial waters of the country where the stowaways embarked. A master may deviate from the ship’s planned voyage in certain circumstances:
1) if permission to disembark the stowaway has been granted by a State:
2) repatriation has been arranged elsewhere, or
3) there are extenuating security, health or compassion-related reasons.

41. 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
Challenges:
Legal framework re SAR. Some States have not accepted the amendments to the SOLAS and SAR Conventions. Concerns expressed that there is a lack of clarity regarding the legal regime – especially where nearest coastal State has not declared a search and rescue zone.
Implementation - Lack of coordination between States regarding rescue operations. Also problems with implementation e.g. disembarkation – some States are reluctant to allow disembarkation.
Lack of functioning search and rescue facilities in some regions. IMO involved in addressing this.
After survivors are disembarked from a ship – there are even more issues relating to their treatment – e.g. determination of claims for asylum, repatriation of people who do not have refugee status, settlement of refugees in the country or other countries. Observing the international protection needs for refugees critical – as is respect for human rights – and protection of victims of trafficking.
Challenges faced by origin and transit States in order to prevent clandestine migration. Don’t have capacity to stop unseaworthy vessels leaving their shore or to combat smuggling and trafficking activities.
[Note: Bear in mind policy concerns of States in connection with migration by sea:
Legitimate security interests of States – maintain effective border and immigration controls and to combat international organized crime such as trafficking and smuggling
Security and stability in international shipping
Need to prevent loss of life at sea – effective search and rescue system at sea
Obligations to respect the rights and dignity of all persons regardless of their status, including protection needs of refugees and asylum seekers
Organize the prompt return of migrants who are not in need of international protection to their countries of origin or other countries.] 41

42. International forums General Assembly of the United Nations
International Maritime Organization
United Nations High Commissioner for Refugees
International Organization for Migration
Inter-agency group on the treatment of persons rescued at sea. Includes: UNHCR, United Nations Office on Drugs and Crime, Office of the High Commissioner for Human Rights, International Labour Organization, IMO, IOM, and DOALOS
Highlight recent action taken in these forums. Just some of the forums addressing migration by sea, in particular rescue at sea are highlighted here.
Each forum tackles from their own perspective.
GA. Oceans resolutions – call on States to become parties to SOLAS and SAR conventions re rescue and to accept the 2004 amendments (in OP of Resolution 64/71, especially OP. 104 and 106).
ICP – June 2008 meeting on maritime security and safety. Maritime security – discussion of smuggling and trafficking by sea. Maritime safety – treatment of persons rescued at sea.
IMO – continuing discussions within the IMO about the legal framework re SAR. Important issue – disembarkation of rescued persons from assisting ship. Some States are seeking to strengthen the legal framework in this regard, eg Spain and Italy have proposed that the IMO Guidelines be made binding. Concerns that if there is not better cooperation to enable prompt disembarkation, then master may be less inclined to comply with their duty to assist persons in distress at sea.
UNHCR – very active. Operational role in individual rescue at sea cases. Presence in Gulf of Aden etc. Facilities to assess asylum applications.
IOM – repatriation of persons.
Inter-agency group – made up of various international organizations - aim is to enhance cooperation and coordination at agency level. 42

43. Annual resolutions on oceans and the law of the sea
General Assembly
Annual resolutions on oceans and the law of the sea
Resolution 64/71 (2009):
Paras calls relating to Flag State duties and search and rescue responsibilities of all States
Para take effective action to address unseaworthy ships and small craft within their national jurisdiction
Para all States to continue to cooperate in developing comprehensive approaches to international migration and development
104. Recognizes that all States must fulfil their search and rescue responsibilities and the ongoing need for the International Maritime Organization and other relevant organizations to assist, in particular, developing States both to increase their search and rescue capabilities, including through the establishment of additional rescue coordination centres and regional subcentres, and to take effective action to address, to the extent feasible, the issue of unseaworthy ships and small craft within their national jurisdiction;
106. Calls upon States to continue to cooperate in developing comprehensive approaches to international migration and development, including through dialogue on all their aspects;

44. Resources and further information
Reports of the Secretary-General on oceans and the law of the sea available at
IMO and UNHCR, “Guide to principles and practice as applied to migrants and refugees”, available at
UNHCR, “Selected Reference Materials on Rescue at Sea, Maritime Interception and Stowaways”, available at 44