Dr Douglas Guilfoyle Faculty of Laws, University College London

1. The International Legal Framework for Interception at Sea: The Interface of International Maritime and Criminal Law Dr Douglas Guilfoyle Faculty of Laws, University College London

2. Overview • general principles of the law of the sea regarding interdiction • briefly touch on the question of disembarkation • consider provisions of the Palermo Convention Protocol on migrant smuggling • highlight a number of practical and legal concerns

3. Interception at sea can occur • within national jurisdiction • on the high seas - with flag state consent - under an applicable treaty or customary rule - as an act of rescue?

4. Maritime interception in national jurisdiction • Territorial waters to 12 nm • Contiguous zone to 24 nm (UNCLOS Art. 33): • powers of control to “prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations” • powers of punishment where offences already “committed within its territory or territorial sea” Control allows only prevention short of arrest.

5. The Exclusive Economic Zone States may only exercise rights of interdiction in the 200 nm EEZ in respect of its sovereign rights and jurisdiction (Art 56 UNCLOS): • living and non-living resources (e.g. fisheries) • artificial structures, MSR, environmental protection, etc No general right of law enforcement regarding other subject-matters.

6. Basic principle on the high seas • UNCLOS Art 92(1): ships on the high seas are subject to the exclusive jurisdiction of their flag State unless an exception applies. • Stateless vessels? • The question of unregistered small vessels – are they stateless?

7. Unregistered vessels need not be stateless “Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly.” Art 91(1), UNCLOS

8. Interception on the high seas • Various powers exist under UNCLOS or customary law regarding: piracy, slave trading, unauthorised broadcasting and stateless vessels. • Treaty arrangements concerning, e.g., the smuggling of drugs and migrants. • Rescue at sea as interdiction?

9. Interdiction and duties of disembarkation? • Consider: duty of rescue, human rights obligations and non-refoulement. • Are obligations regarding disembarkation after rescue “incomplete”? • The SAR Government “shall exercise primary responsibility for ensuring ... co-ordination and co-operation occurs, so that survivors ... are disembarked ...and delivered to a place of safety” SOLAS, Chapter V, Reg 33(1.1).

10. Transnational criminal law UN Convention on Transnational Organised Crime (Palermo 2000) and its Protocols: • Migrant Smuggling Protocol • Human Trafficking Protocol Only the Migrant Smuggling Protocol deals with interception at sea.

11. Definitions under the Protocols: • a person is trafficked where they are recruited and transported by coercive means (including deception) for purposes of exploitation; • a migrant is smuggled if they are moved across borders into a foreign States without complying with national migration law for profit.

12. Overlap? • A migrant may be smuggled into exploitation and become trafficked. • All trafficked persons moved internationally are also smuggled migrants.

13. Maritime Interception under the Migrant Smuggling Protocol: Article 7 States Parties shall 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.

14. Maritime Interception under the Migrant Smuggling Protocol: Article 8(2) Interception on the high seas requires: • “reasonable grounds ... to suspect” smuggling • “a vessel ... [is] flying the flag or displaying the marks of registry of another State Party” • a Party may “request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures ...”

15. Migrant Smuggling Protocol: Article 8(2), continued • Art. 8(2) requires “confirmation of registry” – problem of small boats without registration but with a right to fly a flag. • Small boats may require an Art. 8(1) “request for assistance” instead. • Not a trivial problem: same issue occurs under Art 17, Vienna Narcotics Convention – e.g. Medvedyev v. France.

16. Further features of Art 8(2): flag State consent • Flag State may place conditions upon its consent • action only allowed to the extent of flag State permission (board, search, take further measures) • additional measures may only be taken to preserve life • Flag States must consider requests “expeditiously” and have a designated national authority to do so.

17. Safeguards under the Migrant Smuggling Protocol : Article 9 The interdicting State must: • ensure “safety and humane treatment” • “take due account” of “the need not to endanger ... the vessel or its cargo” and other States’ “commercial or legal interests” • ensure measures taken are “environmentally sound” and • compensate wrongfully interdicted vessels.

18. Key legal and practical problems • Rescue and interdiction: EU Frontex and US practice • Limits of authority in contiguous zone, high seas • Stateless vessels – are unregistered small boats stateless? • Need for identified national authorities capable of giving permission or bilateral mechanisms • Questions of disembarkation, non-refoulement and human rights