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
Overview
(1) general principles of the law of the sea regarding
interdiction
(2) briefly touch on the question of disembarkation
(3) consider provisions of the Palermo Convention
Protocol on migrant smuggling
(4) highlight a number of practical and legal
concerns
Interception at sea can occur
(1) within national jurisdiction
(2) on the high seas
- with flag state consent
- under an applicable treaty or customary rule
- as an act of rescue?
Maritime interception in national jurisdiction
(1) Territorial waters to 12 nm
(2) 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.
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.
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?
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
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?
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 cooperation occurs, so that survivors ... are
disembarked ...and delivered to a place of safety”
SOLAS, Chapter V, Reg 33(1.1).
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.
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.
Overlap?
• A migrant may be smuggled into exploitation and
become trafficked.
• All trafficked persons moved internationally are
also smuggled migrants.
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.
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 ...”
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.
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.
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.
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