Refugees at Sea: Jurisdictional Variances in Light of the Convention on the Law of the Sea and the Convention Relating to the Status of Refugees

Gotovo smo svakodnevno suočeni s vijestima o tragičnoj sudbini izbjeglica i drugih migranata koji preko Sredozemnog mora pokušavaju stići do Europe. U ovom se radu u prvom redu nastoji rasvijetliti kako međunarodnopravna pravila o jurisdikciji država na moru, koja su danas kodificirana u Konvenciji Ujedinjenih naroda o pravu mora iz 1982., uvjetuju postupanje vojnih i drugih državnih brodova s javnim ovlastima prema plovilima kojima se koriste migranti. Pritom se jurisdikcijske ovlasti država na moru stavljaju u odnos s njihovim obvezama prema međunarodnom izbjegličkom pravu, napose Konvenciji o pravnom položaju izbjeglica iz 1951. i Protokolu uz tu konvenciju iz 1967., a s naglaskom na temeljnu obvezu koja proizlazi iz načela non-refoulement.It is almost on a daily basis that we are confronted with news regarding the tragic fate of refugees and other migrants who try to reach Europe via the Mediterranean Sea. In the present paper migrations by sea are primarily approached from the angle of the international law of the sea. The aim is to clarify how the rules on the jurisdiction of states in respect of the sea, as nowadays codified in the 1982 United Nations Convention on the Law of the Sea (LOSC), condition the activities that states may undertake towards migrant vessels. At the same time the obligations of states under international refugee law, notably the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, are taken into account and their interplay with the jurisdictional powers of states at sea is examined. As concerns the duties of states under refugee law the focus is on the fundamental rule stemming from the principle of non-refoulement. First, the paper highlights situations when warships and other state vessels on non-commercial government service may exercise their jurisdiction to intercept and stop vessels carrying migrants and take enforcement action towards them. The jurisdictional powers vary depending on the maritime zone where the interception takes place. Such jurisdiction is not unlimited even in the territorial sea, the maritime zone under the sovereignty of the coastal state, thus forming part of its territory. However, in practice the right of innocent passage in the territorial sea, as granted under the LOSC to foreign ships, will not have much bearing on the coastal state’s control and enforcement powers vis-á-vis migrant vessels. The issue of surveillance and enforcement activities carried out by warships in the territorial seas of other states on the basis of bilateral agreements is dealt with, as well. On the high seas and in the exclusive economic zone, on the other hand, where ships of all flags enjoy freedom of navigation, the jurisdictional powers of warships and other government vessels are indeed clearly restricted. This is due to the general rule that, on the high seas, ships are in principle subject to the exclusive jurisdiction of their flag state. Exceptions to this rule are possible only if expressly provided for in the LOSC or in special multilateral or bilateral treaties, or if consented to by the vessel’s flag state in each particular case. With respect to refugees and other migrants at sea, the only relevant LOSC exception is the one authorizing warships to exercise jurisdiction regarding ships without nationality. As for other multilateral treaties establishing special jurisdictional bases, the relevance of the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air is discussed. In a great number of cases, especially on the high seas, the legal basis for states’ activities regarding migrant vessels is actually not directly linked to the jurisdictional powers of states at sea. As a matter of fact, migrants at sea, in particular on the Mediterranean route, will invariably travel in outworn boats and various kinds of small vessels that are hardly seaworthy. As a result, they will find themselves in distress and any ship at sea, warships first and foremost, will have the duty to render assistance in order to save human lives. The paper considers in some detail the legal implications for states resulting from rescue operations relating to migrant vessels. In that respect, the author highlights the controversy concerning the disembarkation of persons rescued at sea, which even after the 2004 amendments to the 1979 International Convention on Maritime Search and Rescue (SAR) has not been satisfactorily resolved. Yet, accentuating the correlation between the pertinent jurisdictional rules of the law of the sea, as contained in the LOSC, and states’ obligations under international refugee law, i.e. the 1951 Refugee Convention, the paper clearly shows that the prohibition of refoulement is the minimum standard for states to comply with, wherever on the sea they have to deal with persons that might be entitled to refugee status and on whatever legal basis. Since the principle of non-refoulement is undoubtedly part of customary law, such an obligation extends to all states, even if not parties to the Refugee Convention