Law of the Sea and Migration: Authority

and Responsibility of Stakeholders,

Rescue at Sea and Stowaways

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
 Mixed migration

Mixed migration
 Movements of
people increasingly
mixed: asylum
seekers & refugees;
trafficked/ smuggled
persons; migrants
 Similar routes
 Similar modes of
transport
Migration Flows
 Stakeholders

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

 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
Limits of maritime zones
 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.

 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)
 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)
 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)
 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.

 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
 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)

 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
 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
 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
 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
 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
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
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.”
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
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 (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)
 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
 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
 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
 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)
 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
 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
 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
 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
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
 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.

 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
 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”
 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
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
 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
 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
 General Assembly

Annual resolutions on oceans and the law of the

sea
Resolution 64/71 (2009):
Paras. 103-106 calls relating to Flag State
duties and search and rescue responsibilities
of all States
Para. 104- take effective action to address
unseaworthy ships and small craft within their
national jurisdiction
Para. 106- all States to continue to cooperate
in developing comprehensive approaches to
international migration and development
 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/45b8d8b44.pdf