EUNAVFOR MED: SOLUTION OR VIOLATION?

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EUNAVFOR MED: SOLUTION OR

VIOLATION?

EU Launches Naval Operation against Mediterranean Human Smugglers.1

Name: D.A.J. van Overvest Student number: 5673003

Word count (actual text): 13.776

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https://worldmaritimenews.com/archives/164391/eu-launches-naval-operation-against-mediterranean-II

General Introduction

In recent years Europe has been dealing with an ever-growing migration problem that the continent has not experienced since the nineties. Back then the ending of the communist era in the Balkans had caused large numbers of migrants to flee to Western-European states on a scale not seen since the ending of the Second World War.2 Since then, the EU had experienced a relatively calm decade.3

With new conflicts arising in and around the continent, from Ukraine to Libya, the flow of migrants has been dramatically increasing the last couple of years. Sparked by public fear of being ‘flooded by migrants’, EU Member States have increasingly been trying to prevent people from entering the European territory. Because of the measures taken, migrants are being forced to take ever longer and more dangerous routes, which has led to thousands of people trying to reach the EU by crossing the Mediterranean Sea. In the first 20 weeks of 2015, some 60.000 migrants attempted to cross it, which is 20 times more than in the same period in 2014.4

An increase of attempts to cross undoubtedly leads to a further increase of people dying during these attempts, also because the sea routes have become longer. There are alarming prospects on the expected number of migrant deaths throughout the remainder of 2015.5 The expected rise is substantiated by the increase in the percentage of the probability of persons dying on their way to Europe.6 The numbers given in a recent policy brief issued by the Migration Policy Centre (EUI) signal a tremendous increase, for example in the period between 1988 and 2015 approximately 18.403 deaths were registered.7_{Almost half of them were recorded in the last five}

2_{Fargues, P and Di Bartolomeo, A., Drowned Europe, Migration Policy Centre, April 2015, p. 2.} 3_{Alink, Boin & 't Hart, Institutional crises and reforms in policy sectors: the case of asylum policy in}

Europe, Journal of European Public Policy Vol. 8, Issue 2, Taylor & Francis 2001, p.292.

4_{http://www.europarl.europa.eu/RegData/etudes/ATAG/2015/559489/EPRS_ATA(2015)559489_EN.p}

df (last accessed on 20-08-2015). EPRS | European Parliamentary Research Service Author: Carmen-Cristina Cîrlig, Members' Research Service PE 559.489.

5_{Fargues, P and Di Bartolomeo, p. 2.} 6_{Fargues, P and Di Bartolomeo, p. 5.}

7_{Apart from the deaths registered in Europe, also the deaths that occurred outside the European}

jurisdictions need to be taken into account. For more information on this topic, see prof. Thomas Spijkerboer’s research project on The Human Costs of Border Control and also prof. Pieter Boeles’ documentary on this matter (http://www.borderdeaths.org/?page_id=16)

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years. In line with this, the percentage of the probability of dying rose from 7,6% in 1998 to around 45% in the first four months of 2015.8

A recent tragic example was the capsizing of a migrant boat coming from the Libyan port of Zuwara on the 19th of April 2015. It was reported to have capsized on its way to the Italian island of Lampedusa, causing approximately 800 to 900 people to drown. This tragedy, although it was merely the latest of many similar incidents that have occurred in recent years, amounted to a reinvigoration of the debate on how to deal with boat migrants coming to Europe. Even though similar incidents had been occurring on an almost weekly basis, the scale of this tragedy reignited public discussion. Once again the debate was primarily focussed on the question of whose responsibility it is to intercept and/or rescue people at sea and what obligations lie on European states to act in this regard.9 This time, however, there seemed to be more urgent public demand for a real and credible solution to the problem. This had to do with the scale of the incident and it promptly forced European leaders to issue an emergency EU Council meeting on the matter the following day; the incident was conceived to be the worst disaster of its kind in European history.10

During this meeting the first plans for extension and scale up of the search and rescue mission that Italy had started the year before and had been conducting on its own until then, were issued.11 Following suit, the Council, on the 18th of May, decided on a military enforcement mission aimed at systematically identifying, capturing and destroying vessels used by smugglers to bring people to Europe. 12 The rationale behind it was that by targeting the smugglers and the boats used for the crossings, this would effectively halt people from going to sea and therefore they would no longer be exposed to the dangers at sea. This operation, named EUNAVFOR MED, is shaped in the likeness of the successful ATALANTA anti-piracy mission off the coast of the Horn of Africa and will primarily consist of a military crisis management operation, as is stated in Article 1 of Council decision (CFSP) 2015/778.

Judging from the relatively quick response to this humanitarian crisis, especially from a European point of view, it seems that the EU member States are

8_{Fargues, P and Di Bartolomeo, p. 3.}

9 _{See in particular the reactions of Pope Francis and the NGO Save the Children:}

http://www.theguardian.com/world/2015/apr/19/700-migrants-feared-dead-mediterranean-shipwreck-worst-yet (last accessed on 09-08-2015).

10

http://www.theguardian.com/world/2015/apr/19/700-migrants-feared-dead-mediterranean-shipwreck-worst-yet (last accessed on 09-08-2015).

11_{Fargues, P and Di Bartolomeo, p.1.}

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genuinely looking for a solution for ending this practice and the high amount of casualties it results in. But as recent history has shown, these kinds of missions are not necessarily based on purely ethical motives. For example, the pushback missions orchestrated by Italy in 2009 did not appear to be aimed primarily at halting illegal smuggling across the Mediterranean for purely humanitarian reasons. The Italian governments’ motives seemed to be focused more on creating a deterrent, aimed at stopping and sending back boat migrants, thus discouraging others from embarking on similar journeys. This did however greatly contribute to a temporary decrease in migrant flows to Italy and was, as such, considered a successful solution to Italy’s migration problems, be it temporary. 13

The EUNAVFOR MED operation has also substantively been criticized, primarily on account of its ‘enforcement (legal) basis’.14 By taking this approach and by using this particular legal basis, it would seem that there would be too little appreciation for human rights. This is mainly due to the fact that this mission is modeled after the ATALANTA anti-piracy mission.15 Critics state that it is negligent and even dangerous to use similar means to solve very different problems; fighting piracy cannot be equated to stopping illegal migration.16

Others criticize the EU leaders for not looking for a solution to Europe’s migration problems in the long run, but merely solving contemporary problems. There seems to be some logic to this, since (recent) history has shown that stopping people at borders does not deter them from finding other ways into a state’s territory.17 In fact, the situation in the Mediterranean is a prime example of this; during the last decades or so, the efforts of European states to close down the fairly safe and short routes has led migrants to endeavor on ever more dangerous routes.18

This taken in consideration, it is important to evaluate the possible effects of the EUNAVFOR MED operation on the situation of boat migrants. More specific, it is necessary to look if these effects cause EU Member States to be in violation of their

13_{Figures have shown that the Italian-Libyan cooperation in 2009 dramatically lowered the attempts to}

try and reach to Italy. The ECHR’s verdict in the CASE OF HIRSI JAMAA AND OTHERS V. ITALY however ceased this approach.

14_{EUNAVFOR MED as a European version of Mexico’s drug war: Faleg, G. and Blockmans, S., EU}

Naval Force EUNAVFOR MED sets sail in troubled waters, CEPS Commentary (26 June 2015), p. 1.

15_{Faleg, G. and Blockmans, S., p. 2.}

16_{Cîrlig, C., EU mounts new maritime operation to tackle Mediterranean people traffickers, European}

Parliament Research Service (EPRS), PE 559.489, p. 1.

17_{One of the most well known examples is the Berlin wall that divided Germany for over 28 years. In}

that period around 5.000 persons managed to cross it. At least 138 persons were killed or died at the wall: http://www.chronik-der-mauer.de/en/victims/

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obligations under international and European law. Because of the multitude of legal jurisdictions and actors involved, delimitation is necessary. The primary question here will therefore focus on whether the EU Member States, by implementing Council decision 2015/778, are violating their obligations under International Refugee Law (IRL), the basic rights under International Human Rights Law (IHRL) and the International Law of the Sea (ILOS). Also, the human rights obligations under EU law itself will be regarded, including the rights under the European Convention on Human Rights (ECHR), which forms an integral part of the EU human rights regime and to which the EU Member States (EUMS) are all party.19

19_{Article 6(2) TEU.}

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1 Boat migrants and Council decision 2015/778

1.1 Council decision 2015/778

The background leading to Council decision 2015/778 has been thoroughly discussed in the general introduction and therefore this chapter will continue on how this decision came into being, on what legal basis it was passed and what the difficulties of its implementation are. The EUNAVFOR MED mission primarily focuses on tackling traffickers and smugglers and is part of a wider set of measures taken by the Council in (i) preventing further loss of life at sea, (ii) to find new ways to deal with smugglers and (iii) to intensify cooperation to with countries of origin and countries of transit – like Libya.20

The EUNAVFOR mission was set up to deal with the ever-increasing problem of migrant smuggling to Europe. This mission is set up in three phases. The first phase started on the 22nd of June 2015 and consists mainly of intelligence gathering and identifying the smuggling networks.21 The second and third phases will consist of actual enforcement action, which however will require a mandate under international law; i.e. Security Council clearance under chapter VII of the Charter of the United Nations.

1.2 EU legal base

Council decision 2015/778 has its legal base in the EU’s Common Security and Defence Policy (CSDP). The CSDP, as part of the Common Foreign and Security Policy (CFSP), has traditionally been an area in which the EUMS have been reluctant to lose their national sovereignty.22 Therefore, compared to other areas of EU law the Member States have maintained a lot of discretion. This is most clearly illustrated by the fact that the voting under the CFSP/CSDP is done through unanimity, unless otherwise provided for in the Treaties.23 Also, the ECJ has no jurisdiction in this area based on article 24(1) TEU, allowing the EUMS to act more freely in this area.

20_{European Council, European Council meeting (25 and 26 June 2015) conclusions, EUCO 22/15, p.1.} 21_{Tweede Kamer, vergaderjaar 2014–2015, 32 317, nr. 313, pp. 7-8.}

22_{“Member States originally conceived the Common Foreign and Security Policy (CFSP) as an}

intergovernmental form of cooperation which, as such, would do no harm to States’ freedom to conduct their own foreign policy in general, and to their sovereign powers to conclude international agreements in particular.” Hillion, C. and Wessel, R., Restraining External Competences of EU Member States

under CFSP, in M. Cremona and B. de Witte (eds), Values in EU Foreign Policy, Hart Publishing,

2008, p.79.

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The decision was taken based on article 42(3) and 43(2) TEU. Since a unanimous vote was required, all Member States could be held accountable for breaching their obligations if this decision is in fact a violation of international law.24 With the first phase already underway, the decision to proceed with the second and third phases now lies with the EU Political and Security Committee (PSC), which exercises the political control and strategic direction over this Union crisis management operation based on article 2(3) of the decision, as stated in article 6 of the decision (2015/778). The PSC is, however, still subjected to the assessment of the Council and therefore also falls under its direct responsibility based on article 38 TEU.25 At this point it is not yet clear when the second and third phases will (in all probability) be implemented, but nevertheless their implementation will be subjected to an assessment on possible violations of human rights.26

1.3 Implementation of the 2nd_{and
3}rd_phases

While the first part of the mission is already underway, the required international legal mandate to enact the second and third phase of the mission – seek and destroy respectively – has not yet been conceived. Without an international mandate, the use of force is generally prohibited under Article 1(4) of the UN Charter (UNC). Consequently, only the acquiescence of the state on whose territory an enforcement mission is to take place (Libya) or the approval of such action by the UN Security Council (UNSC) under Article 42 UNC, would allow a state to enact an enforcement operation of this kind on another state’s territory. As a precondition, the situation must constitute a ‘threat to the international peace and security’ within the meaning of Article 39 UNC.

There are two ways to successfully implement the second and third phase of the mission: the first, as mentioned before, is by convincing the Security Council to endorse a resolution (UNSCR), which would facilitate military enforcement in Libyan territorial waters and even on the Libyan coast. The alternative would be to come to an agreement with Libyan authorities to consent to military action on its territory. Both options have their difficulties. Convincing the UNSC to approve such an enforcement mission might prove difficult, seeing as both Russia and China would have grave concerns about the scope and duration of these military activities on

24_{Council decisions are binding on all Member States, regardless of the voting modalities: unanimity}

or (qualitative) majority voting.

25_{Council decision 2015-778, preamble point 10.} 26_{The beginning of August 2015.}

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Libyan territory.27 Reaching an agreement with Libyan authorities, on the other hand, could prove just as difficult since the country is divided between two major groups; the internationally recognised government in Tobruk and the Islamist government in Tripoli. Therefore it is critical that the ongoing process aimed at establishing a unity government in Libya, first succeeds. Cooperation with only one of the two parties would not only alienate the other party, but this would also undermine the Libyan ‘unification’ process and seriously limit the EUNAVFOR MED mission’s area of operations.28

27_{Faleg, G. and Blockmans, S., p. 3.} 28_Ibid.

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2 International Human Rights Regimes

2.1 Chapter introduction

The chapter will deal with the international human rights regimes applicable to the situation of boat migrants in the context of Council decision 2015/778. Under International Human Rights law (IHRL) there are different legal regimes that all regulate a specific area of international law and which may lie far apart from each other: For example, the 1951 Convention Relating to the Status of Refugees specifically covers refugee rights, were the International Convention on Civil and Political Rights (ICCPR) deals with more general human rights protection.29

The main question to be answered is whether this Council decision complies with the rules and obligations under IHRL. Subsequently, a second question must be answered on whether the EU Member States (EUMS) are acting in breach of their obligations under IHRL when they are conducting operations as part of EUNAVFOR MED. Because there is a multitude of IHRL applicable to this situation and since there is no possibility to discuss all here, this chapter will focus on the most relevant legal regimes. These are International Refugee Law (IRL), the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Looking at the general outcome of these questions on compliance with IHRL, it is likely that comparable answers and conclusions to these questions would arise from a similar investigation in other human rights jurisdictions. Therefore, the outcome on the question of compliance and EUMS obligations under these three human rights regimes should suffice to provide a general answer.

2.1.1 International human rights

International human rights assume universal application and are thus considered equally accessible to all individuals everywhere.30 Paradoxically, state obligations are limited to apply to certain places, groups of people, and situations only, meaning that states are not obliged to apply these rights beyond these particular circumstances. 31 This means that while international human rights are considered to apply universally

29_{Boven, T. van, Categories of Rights, in Moeckli, D., Shah, S., Sivakumaran, S., (eds.), International}

Human Rights Law, Oxford University Press 2014, pp. 150-151.

30_{Gallagher, A.T., David, F., The International Law of Migrant Smuggling, Cambridge University}

Press 2014, p. 128.

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and equally to all individuals, states do not have an obligation to apply them to individuals everywhere.32 Hence it is important to outline when a state does owe obligations towards those individuals. This occurs, for example, when – by its (in)actions – it affects the lives of individuals outside its sovereign borders and this constitutes a violation of the human rights treaties to which it is a party. 33 With regard to the situation of boat migrants, it is important discuss the applicable IHRL provisions and look if they apply extraterritorially.

2.1.2 Jurisdiction and Extraterritoriality

In order to establish when a state has extraterritorial jurisdiction and more importantly when a state has jurisdiction on the high seas, a distinction has to be made in the way international human rights provide obligations and jurisdiction to states. International human rights can thus be divided based on how they affect states. On the one hand there are rights that provide states with positive obligations and on the other there are rights that impose negative obligations on states. The former call for states to secure or ensure the respect of those rights and require them to take various steps to fulfil and protect the rights of individuals, even from third parties.34 The latter are those rights that oblige states to respect the human rights of persons within their jurisdiction and

refrain from acts capable of violating the rights of individuals.35

This distinction is of importance for the extraterritorial application of human rights treaties, whilst negative obligations require states not to act and positive obligations do demand action. In order to fulfil these positive obligations, states are, however, required to have actual or effective control over a territory or a population.36 Therefore, in order for individuals to call upon a state to fulfil its obligations towards them extraterritorially – for example boat migrants on the high seas –, jurisdiction over those persons or the territory is required.37

32_{Skogly, S., Universal Human Rights without Universal Obligations?, in Joseph, S. and McBeth, A.}

(Eds.), Research Handbook on International Human Rights Law, Edward Elgar Publishing 2010, p. 71.

33_{Milanovic, M., Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy,}

Oxford University Press 2011, pp. 1-2.

34_{Milanovic, M., p. 18.} 35_Ibid.

36_Ibid.

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2.2 Obligations under International Refugee Law

A basic reading of what international refugee law comprises of is that it grants certain rights to individuals and imposes certain obligations on states. In order for an individual to call upon these rights, specific criteria must be met. The same goes for states: they are only obliged to act or to fulfil their obligations under IRL, when certain criteria are met. The most important of these is that persons must qualify as refugees in order for the IRL-regime to apply to them.38 When they do, this obliges states to act accordingly; states must provide them with shelter and access to basic living conditions during their stay until they return to their country of residence or until their refugee status is revoked.39

Looking at the situation in the Mediterranean, it could hardly be contested that a large share of Europe’s boat migrants would qualify as refugees under the 1951

Refugee Convention and its 1967 Additional Protocol. Almost half of them come

from war-torn countries such as Syria and Iraq, but there’s also a vast number of Eritreans fleeing their country’s oppressive regime.40 All of these boat migrants qualify as asylum seekers, but only those that meet the requirements under the Refugee Convention will be given refugee status after having their claim assessed. A general distinction is therefore made, based on the person’s reason and/or necessity for departure: On the one hand there are people who are fleeing their country of origin (or residence41) on account of the particularly unsafe situation there. This may be due to internal conflicts, sectarian violence or (civil) war. Other particular circumstances that amount to a ‘well-founded fear of being persecuted’ may also be called upon.42

On the other hand there are persons that travel to other countries searching for better opportunities in life, but who are not forced to do so owing to life-threatening circumstances or well-founded fear of being persecuted in their own country. They would qualify as ‘regular’ or ‘economic’ migrants and would, strangely enough, fall into the same category as, for example, an ordinary EU-citizen working in another EU

38_{Hathaway, J.C. and Foster, M, The Law of Refugee Status, Cambridge University Press 2014, pp. 1-2.} 39_{The cessation clauses in Art. 1(C) of the Convention defines various situations in which refugee}

status may come to an end. Hathaway, J.C. and Foster, M, The Law of Refugee Status, Cambridge University Press 2014, p. 462.

40

http://www.theguardian.com/world/2015/may/27/eu-countries-take-40000-asylum-seekers-migration-quota-syria-uk (accessed last on 10-08-2015).

41_{For example: Palestinian refugees fleeing from Syria, where they have resided for decades.} 42_{Article 1A(2) Convention Relating to the Status of Refugees.}

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Member State.43 However, since they do not meet the criteria for refugee status and can neither claim asylum on (other) humanitarian grounds, they do not have a right to stay. They do however have a right to have their asylum claim reviewed.44

Persons who do meet the requirements for refugee status can legitimately reside in the country where they apply for it and importantly, they are even protected under the refugee regime before this status has formally been recognized pursuant by a municipal law process, as they then have asylum seekers status.45 This is due to the fact that IRL doesn’t require states to grant refugee status to persons, but that it merely asks states to recognise a person’s refugee status.46 As it is unclear whether a person will be found to be a refugee or not – at least not beforehand since groups are usually made up of mix of migrants and refugees – states are obliged to treat them all equally. This means that the whole group must be treated as genuine asylum seekers. Also, since refugee rights are defined to inhere by virtue of refugee status alone, they must be respected by states until and unless a negative determination of the refugee’s claim to protection is rendered.47

2.2.1 The Hirsi case: non-‐refoulement, collective expulsion and extraterritoriality.

States are obliged to care for any (boat) migrants and allow for a genuine assessment of their asylum claim. They can neither be expelled, nor prevented from entering a state’s territory (repelled). This is essentially what the principle of non-refoulement means to cover. This principle is considered to be generally applicable to the situation of boat migrants in the Mediterranean, as was confirmed by the European Court of Human Rights in its Hirsi Jamaa verdict:

“The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any

measure attributable to a State which could have the effect of returning an

43_{The term ‘economic migrant’ is not a legal classification, but is commonly used to describe}

migration for advance of economic and professional prospects. http://theconversation.com/explainer-the-difference-between-asylum-seekers-refugees-and- economic-migrants-45615 (accessed last on 10-08-2015).

44_{Article 14(1) of the Universal Declaration of Human Rights (UDHR).}

45_{Lauterpacht, E. and Bethlehem D., “The Scope and Content of the Principle of Non-refoulement”,}

Global Consultations UNHCR, 2001, p. 133.

46_{Hathaway, J.C. and Foster, M, The Law of Refugee Status, Cambridge University Press 2014, p. 1.} 47_{Hathaway, J.C., The Rights of Refugees under International Law, Cambridge University Press: 2005,}

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asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution.

This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.”48 Consequently, states party to the ECHR are required to act accordingly and any non-compliance would thus be in breach of state-party obligations under this Convention – as well as under the 1951 Refugee Convention.

The principle of non-refoulement is an absolute right under IRL that cannot be derogated from.49 When a person is granted refugee status or when a person is not yet considered to fail the criteria to be granted such status, states are obliged not to return or expel that person to the country of origin or the country of departure. The principle has first and foremost been regarded as being applicable to persons on state territory and its applicability to interdictions outside a state’s territory has sometimes been disputed. The ECtHR has clarified this ambiguity in the Hirsi Jamaa case. The Court not only stressed the absolute character of the principle of non-refoulement, but it also held that any state activity – be it territorially or extraterritorially – encroaching on fundamental rights should be embedded in a clear framework of legal safeguards and procedural standards.50 It thereby forcefully rejected on-going state practice with regard to extraterritorial interdictions. The Court considered that interdictions conducted outside states’ territories, which circumvented ‘ordinary’ statutory safeguards on asylum, detention and access to court, were in violation of the ECHR.51 This judgement is of particular importance, since it laid down a robust framework for protecting all migrants found at sea, irrespective of their legal status.52 Subsidiary to this, it also made clear that differentiation based on a specific purpose or aim of a particular operation, could not substantiate any interception leading to expulsion, when that operation factually prevents migrants from gaining entry to a state’s territory.53 In this case the Italian push back operation, whether placed under the heading of a humanitarian or rescue mission or on any other heading for that

48_{Hirsi Jamaa and Others v. Italy, (2012) 27765/09 (ECtHR, Feb. 23, 2012), par. 23.}

49_{Article 33(2) Refugee Convention presents an exception when a person may be considered}

dangerous to the security of a country or its society. Also Article 1F gives grounds for non-applicability of the Convention as a whole, for instance when a person has committed a crime against peace, a war crime, or a crime against humanity. Heijer, M. den, Reflections on Refoulement and Collective

Expulsion in the Hirsi Case, International Journal of Refugee Law 2013, Vol. 25 No. 2, pp. 266.

50_{Heijer, M. den, Reflections on Refoulement and Collective Expulsion in the Hirsi Case, p. 266.} 51_Ibid.

52_Ibid.

53_{Heijer, M. den, Reflections on Refoulement and Collective Expulsion in the Hirsi Case, pp. 266 and}

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matter, was considered to do just that, as it resulted in a collective expulsion to a third state.

The fact that the members of the Hirsi group were neither individually administered, nor enabled to make separate claims, but were collectively expelled to Libya also constituted a violation of Italy’s obligations under Article 4 of Protocol No. 4 ECHR. A prohibition on collective expulsion is similarly embedded in article 19(1) of the EU Charter. As Judge Pinto de Albuquerque stated in his concurring opinion:

“Discharging the non-refoulement obligation requires an evaluation of the personal risk of harm, which can only take place if aliens have access to a fair and effective procedure by which their cases are considered individually. The two aspects are so intertwined that one could say they are two sides of the same coin. Thus, the collective expulsion of aliens is unacceptable.”54

Any infringement of personal rights needs to be evaluated thoroughly, making sure the interests of the state outweigh those of the individual. This applies in particular when such a fundamental principle of IRL is concerned. Thus individual assessment is crucial and a collective procedure will automatically lead to a violation of this right. Pinto continues:

“Having accepted the application of the non-refoulement principle to any State action conducted beyond State borders, one must logically go on to conclude that the procedural guarantee of individual evaluation of asylum claims and the ensuing prohibition of collective expulsion are not limited to the land and maritime territory of a State but also apply on the high seas.” 55 Seeing as the principle of non-refoulement is to be applied on the high seas in the same manner as within a state’s territory, individual evaluations and the prohibition of collective expulsion too are not limited to a state’s territorial jurisdiction.Thus, it is not the territorial aspect that defines a state’s jurisdiction and the applicability of its obligations in this regard, but the state action itself that activates a state’s obligations.

With its judgement in the Hirsi case, the ECtHR has placed the extra-territorial interception of migrants directly within the domain of human rights law, thus obliging states to fulfil their human rights obligations both territorially and extra-territorially.56 As a result, states might be required to exercise authority over parts of the res

54_{Hirsi Jamaa and Others v. Italy, (2012) 27765/09 (ECtHR, Feb. 23, 2012), p. 73. (Concurring}

opinion of Judge Pinto de Albuquerque)

55_Ibid.

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communis, such as the high seas, in order to fulfil their obligations under IRL.57 In fact, states often already exercise de facto58 jurisdiction outside their territory by, for example, having their coastguard or military vessels patrol there, even though those states could neither claim de jure jurisdiction over such territory, nor have a desire to do so.59

2.2.2 Refugee rights ‘activated’

Most rights under the 1951 Refugee Convention can only be called upon once a state’s de jure or de facto jurisdiction over a person has been established. This is due to the fact that states are only bound by the obligations of the Convention when the person or refugee falls within its sphere of authority.60 There is however a number of

core refugee rights that are explicitly subject to no level of territorial attachment and

therefore are not to be constrained on a territorial basis.61 Based on the drafting history of the Convention it is clear that the drafters envisaged these rights to be accessible to refugees even when they are not physically present in the state’s territory.62 In fact, when looking at the ECtHR’s Hirsi judgement, it seems the court ruled in line with this, by demanding from states party to the ECHR to fulfil their human rights obligations regardless of place.

Contrary to most other rights contained in the Convention, these core rights do not require a specific level of attachment of the refugee with the state and are neither equipped with any qualification pertaining to the required level of attachment. 63 Thus, judging from the drafters’ vision on applicability of these rights and the ECtHR’s judgment affirming this, the right of non-refoulement, as a core refugee right under the Convention, can therefore be held to apply outside a state’s territory. Furthermore, it would not only embed the right not to be returned, but also the right to be granted entry into a state.

57_{Hathaway, J.C., The Rights of Refugees under International Law, p.161.}

58_{De facto (factual) jurisdiction differs from de jure (from law/legal) jurisdiction in that it is}

jurisdiction based on the presence of a state or its agents and not on legal attribution. See par. 2.2.1.

59_{Hathaway, J.C., p.161.} 60_{Hathaway, J.C., p.278.}

61_{Another clear example of a core right is the right of access to the courts – article 16 of the}

Convention – that ensures that refugees have access to the courts of all state parties and not just those of a country where they might be physically present. Hathaway, J.C., pp.161-162.

62_{Hathaway, J.C., pp. 161-162.}

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Entry into a state is one of the refugee interests that should be immediately and unconditionally recognized.64_{Entering a foreign state is usually the most logical}

means to access safety, because if refugees are denied admission, they are likely to either be returned to the risk they were facing in their home state, or as stated by

Hathaway: ‘to be thrown into perpetual orbit in search of another state willing to authorize entry.’65 Both of these options would account to an unacceptable situation in which refugees are forced back into the custody or control of the authorities or (militant) groups in the state of departure or from whom they were fleeing in the first place. As recent events in South-East Asia have shown, the refusal of admittance into a country immediately exposes the real vulnerability of boat migrants.66

The right of entry as a part of the right of non-refoulement does, however, not grant applicability of those rights to persons still in their country of origin. Article 33(1) applies to refugees only. Thus, in order for persons to call upon their rights under this article, the requirements under article 1A(2) of the Convention must be met, which includes the requirement to be outside ones country of nationality.67 This territorial restriction is important, because it prevents states from interfering in each other’s domestic affairs. Without it states would be obliged to grant protection in another state’s territory, thus causing a breach of that states territorial sovereignty.68

In contrast to the interpretation of the right of non-refoulement under de Refugee Convention stated above, there have been two important judgements: the

Roma Rights judgement by the UK House of Lords and the Sale judgement by the US

Supreme Court.69 Both shoulder the supposition that the Refugee Convention lacks any provision requiring a state to abstain from controlling movements of people outside its borders, meaning that article 33(1) of the Convention is not applicable to rejection or exclusion before or at a state’s border.70 However, these appear to be

64_{Hathaway, J.C., pp. 279.}

65_Ibid.

66_{The problems with the Rohingya boat refugees shows a situation similar to that of boat refugees in}

the Mediterranean Sea. http://www.bbc.com/news/world-asia-32733963 (last accessed on May 22, 2015).

67_{In case the person is already outside the country of nationality, the rights would also apply when}

leaving the country of residence. A clear example is presented by Palestinian refugees fleeing their country of residence, Syria.

68_{Heijer, den M., Europe and Extraterritorial Asylum, pp. 123-124.}

69_{House of Lords 9 December 2004, Regina v Immigration Officer at Prague Airport and another ex}

parte European Roma Rights Centre and Others, [2004] UKHL 55 & US District Court for the Eastern

District of New York 7 April 1992, Haitian Centers Council, Inc. v Sale, 823 F. Supp. 1028.

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faulty and inconclusive interpretations of the article’s purpose under the Convention.71 Without going into the details of the textual meaning of the word too much, it is important to briefly shine some light on this discussion.

The ordinary meaning of the word refoulement – as also referred to by both courts – refers to expulsion or deportation from a state itself and has been generally agreed on.72 Some scholars hold that there has always been another meaning of the word and this has been the focal point of the discussion on the meaning of the word refoulement. They state that the word does not only refer to expulsion from a state itself, but also to repulsion outside the state due its special meaning under international law.73 The following arguments were presented.

First of all, as put forward by Hathaway, at the time the Convention was drafted, states had never wanted or tried to refuse refugees outside their borders. The lack of empirical verification should, however, not lead to the assumption that the word refoulement does not cover such situations. The absence of any historical precedent of a policy of ‘proactive deterrence’, leading to interdiction on the high seas, reaffirms this.74 Also, in my opinion, it frankly seems quite naïve to take the position that existing rules can only extend to situation existing at the time of their drafting and that they do not cover new situations. One should never assume that a situation cannot be susceptible to change, be it in a practical or a legal way, or both for that matter. I take it that law in general is not written to be non-receptive to changes of circumstances, especially when looking at the aim or purpose of a rule of law. Thus it simply cannot be assumed that existing rules cannot cover new developments.

Secondly, in the Roma Rights judgment there appears to have been a misreading by the House of Lords of the commentaries to the 1951 Convention, which refer to the previous 1933 Refugee Convention. In contradiction to the statement made by the author of those commentaries – Grahl-Madsen – the House of Lords concluded that the definition of the word refoulement in the 1933 Convention did not include refusal of entry.75 Grahl-Madsen however, stated that non-admission at the frontier would be covered by the word refoulement.76

71_{J.C. Hathaway: ‘refouler’ is used to describe a way of removing a person from a territory and also to}

describe non-admittance at the frontier. Heijer, den M., Europe and Extraterritorial Asylum, p. 127.

72_{As has been stated by Grahl-Madsen and concurred to by (other) prominent scholars, like Paul Weis,}

the primary or ordinary definition of refoulement is expulsion from a state’s territory.

73_{Heijer, den M., Europe and Extraterritorial Asylum, pp. 125-126.} 74_{Hathaway, J.C., p. 337.}

75_{As stated by den Heijer in Europe, and Extraterritorial Asylum, p. 127.} 76_{Heijer, den M., Europe, and Extraterritorial Asylum, pp. 126-127.}

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Thirdly, by considering the right of non-refoulement to be applicable only from within states, a wrong assumption is made to the effect that this right – and international rights in general – applies only within a state’s territory. This would imply that all refugees outside state territory are deprived of their rights under the Convention, which would contravene its purpose and most basic right.77 Also, this right – as well as some other Convention rights – is explicitly not subject to territorial or any other attachment, meaning that it applies everywhere.78

Based on the three arguments discussed above, it can be concluded that

refoulement must not be seen as an action necessarily to occur from a state’s territory

alone. It can also be interpreted to occur outside a state’s territory, for instance when expelling persons en route or at the border and even in a transit state.

An important question still remains: Can a state that does not conduct any operations outside its territory – either to repulse or rescue refugees – nevertheless have certain obligations towards refugees en route to its territory under International Refugee Law? Lack of action could perhaps fall under a wide range of actions taken by, or with the acquiescence of, a state party that may indirectly lead to refoulement.79 During the drafting of the 1951 Refugees Convention it was emphasized that

“art 33’s sole purpose was to preclude the forcible return of a refugee to a country in which he feared both the persecution from which he had fled and reprisals for his attempted escape.”80

According to the drafters Article 33 has a clear purpose, namely to preclude the forcible return of refugees. States party to the Convention not only have a negative

obligation not to expel refugees, but, as was discussed above, they also have a positive obligation to prevent refugees from being forcefully returned, even if this

entails extra-territorial action. Consequently, these obligations bind states beyond their jurisdiction and demand them to protect refugee rights extra-territorially.

2.3 Obligations under the ECHR

Because of the ECtHR’s distinctive capacity to give binding judgments on state parties, the ECHR legal system is considered to be one of the most developed

77_{Hathaway, J.C., pp. 338-339.}

78_{“Everywhere outside the state from where a refugee is fleeing.” Hathaway, J.C., The Rights of}

Refugees under International Law, Cambridge University Press 2005, p. 339..

79_{For example by allowing non-state actors to drive refugees back to their country of origin. Hathaway,}

J.C., p. 318.

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international legal systems. One of the court’s most recent and influential judgments, the Hirsi Jamaa judgment, has already been discussed in the section on refugee law above. Therefore, focus here will be on some of the other important cases relating to jurisdiction and extraterritoriality under the ECHR. In general, the case law of the court has demonstrated that the exercise of extra-territorial jurisdiction by a contracting state is exceptional.81

In Banković the court underlined this by stating that it recognised this exceptional exercise of extra-territorial jurisdiction and that:

“[…]it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.”82

The Banković judgment has been one of the most important judgments on jurisdiction under the ECHR, especially with regard to the exercise of extraterritorial jurisdiction.83 Here, the court decided to give a restrictive interpretation of the word jurisdiction in article 1 of the ECHR84, by stating that it should be interpreted to be of an essentially territorial nature.85 Thus, jurisdiction – in the ECHR sense – is primarily based on the presence of the affected person in the state’s territory.

There are, however, (always) exceptions to a general rule. In the Al-Skeini86 case, the UK government had already conceded that the ECHR applied to persons detained by UK forces in Iraq, which is an exception to the general rule.87 Another important judgment in this regard – on the area of jurisdiction under the ECHR – is the Al-Saadoon88 judgement. Since the Al-Skeini judgement had made the ECHR applicable to persons detained by UK forces in Iraq, in Al-Saadoon the UK argued

81_{Guilfoyle D., The International Journal of Marine and Coastal Law 25 (2010) 437–442 - Current}

Legal Developments, p. 438 and Banković v. Belgium and others (2001) 11 BHRC 435, para. 71.

82_{Banković and Others v. Belgium and 16 Other Contracting States, Application No. (2001) 11 BHRC}

435, para. 71.

83_{Banković, para. 71.}

84_{Article 1 ECHR: The High Contracting Parties shall secure to everyone within their jurisdiction the}

rights and freedoms defined in Section I of this Convention.

85_{Gondek, M., Extraterritorial Application of the European Convention on Human Rights: Territorial}

Focus in the Age of Globalization, Netherlands International Law Review, volume 52 2005, pp 349-387, p. 356.

86_{R. (Al-Skeini and Others) v. Secretary of State for Defence [2007] UKHL 26, [2007]}

3 WLR 33, [2007] 3 All ER 685

87_{Milanovic, M., p. 132.}

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that it had no jurisdiction due to a lack of authority to detain these persons.89 However, the ECtHR did consider the UK to have jurisdiction over these individuals, because of its de facto and de jure control over the area – the detention centres – where they were held, even though it may or may not have been authorized to do so:90

“In the Court’s view, the applicants remained within the United Kingdom’s jurisdiction until their physical transfer to the custody of the Iraqi authorities on 31 December 2008. The questions whether the United Kingdom was under a legal obligation to transfer the applicants to Iraqi custody and whether, if there was such an obligation, it modified or displaced any obligation owed to the applicants under the Convention, are not material to the preliminary issue of jurisdiction (see, mutatis mutandis, Bosphorus, cited above, § 138) and must instead be considered in relation to the merits of the applicants’ complaints.”91

Thus, in its admissibility decision in Al-Saadoon the Chamber of the ECHR ultimately, quite rightly, rejected the UK’s argument against extraterritorial application.92 More importantly, it reframed the classification of jurisdiction as control over a territory or a wider geographical area to control over places or premises; a specific ‘area’ within another state’s territory.93

In conclusion, jurisdiction under the ECHR is primarily based on the presence of a person in the state’s territory. However, under certain circumstances this principally ‘territory based’ jurisdiction can also be extended to operate extraterritorially. Hence, a state’s obligations under the ECHR can emanate from acts committed outside a state’s territory.

2.4 Obligations under the ICCPR

In general all UN treaties are understood to have global reach and are thus not restricted to any legal space.94 For example, even though article 2(1) of the International Covenant on Civil and Political Rights (ICCPR), quite literary requires states to respect and ensure the rights of the ICCPR to all individuals within their

territory and subject to its jurisdiction, this does not limit a state’s obligations under

89_{Milanovic, p. 132.}

91_{Al-Saadoon and Mufdhi v. United Kingdom (Dec.), App. No. 61498/08, 3 July 2009, paras 87–9.} 92_{Milanovic, p. 133.}

93_Ibid.

94_{Joseph. S, and Fletcher, A,, Scope of Application, in Moeckli, D., Shah, S., Sivakumaran, S., (eds.),}

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this treaty solely to its own territory.95 In its General Comment 31, the Human Rights Committee (HRC) gave a clear depiction of the extraterritorial effect of the ICCPR, stating that the rights laid down in this treaty are applicable to “anyone within the

power or effective control of a state party” and that this also applies to anyone within

the power or effective control of the forces of a state acting outside its own territory.96 The Lopez Burgos-case97 was the first case that addressed extraterritorial application of the ICCPR.98 Here, the HRC stated that Uruguay, by kidnapping and interrogating Mr. Lopez-Burgos on Argentinian territory, did have effective control over him at that time and that it therefore had violated its obligations under the ICCPR.99 The HRC’s interpretation of jurisdiction as found in article 2(1) ICCPR was thus focussed on a wider teleological viewing of ‘territory’ and ‘jurisdiction’ to include violations on another state’s territory. As was later concurred by the ICJ in its Wall advisory opinion:100

“it would be unconscionable to so interpret the responsibility under article 2(1) of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another state, which violations it could not perpetrate on its own territory.”101

Regarding jurisdiction the ICJ, in its Wall advisory opinion, stated that the ICCPR is thus applicable to extra-territorial acts of states.102 Consequently, the ICCPR applies extraterritorially where an individual is under the effective control of a state, either through its agents or in some cases even through the agents of another state, operating on its behalf or on its instructions.103 A state’s relationship with the relevant attributed act and the person affected and not so much the territory where this act occurred, is seen by the HRC of more relevance in defining the extent of jurisdiction.104

95_{Joseph. S, and Fletcher, A., p. 133.}

96_{Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States}

Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), para 10.

97_{López Burgos v. Uruguay, UN Doc. A/36/40, 6 June 1979. A similar case that came before the HRC}

in the same year was the Celiberti de Casariego v. Uruguay, which dealt with a similar kidnapping, conducted by Uruguayan agents in Brazil.

99_{López Burgos v. Uruguay, par. 12.3}

100_{ICJ 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian}

Territory (advisory Opinion), ICJ Reports 2004, paras 108-11.

101_{Heijer, den M., Europe and Extraterritorial Asylum, p. 137. HRC 29 July 1981, Delia Saldias de}

Lopez v. Uruguay, no 52/1979, para. 12.3.

102_{Hathaway, J.C., p. 314.} 103_{Hathaway, J.C., p. 340.}

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2.5 International Refugee and Human rights in the light of Council decision 2015/778

‘The operation will be conducted in sequential phases, in full compliance with international law, including humanitarian, refugee law and human rights, and it is part of the EU’s comprehensive approach to migration, tackling both current symptoms and root causes such as conflict, poverty, climate change and persecution.”105

The EUNAVFOR MED operation is set up to achieve its objectives, while at the same time complying with all relevant refugee law and human rights provisions and obligations that bind the EU Member States involved. While the main focus is on ‘disrupting the business model of the smugglers’ and thereby ‘preventing more innocent people being put at risk’, it is questionable whether this can be done without violating the rights of those very same people.106 It is questionable also whether, by disrupting people smuggling, states are not actually violating a person’s rights under IRL or IHRL, because they are at the same time depriving that person of his only means of reaching refuge. This chapter has extensively dealt with state obligations towards people, taking into account jurisdiction, (extra)territoriality and applicability of refugee law and IHRL under the ECHR and ICCPR. In order to determine whether the EU Member States would violate their obligations under IRL/IHRL when they are operating in the EUNAVFOR MED Task Force, two things need to be established: First, it needs to be established if boat migrants would fall under EU Member State jurisdiction and secondly, whether the action(s) taken under the EUNAVFOR MED are in accordance with the principle of non-refoulement.

2.5.1 Jurisdiction under EUNAVFOR MED

Jurisdiction under both IRL an IHRL is most commonly established by a person’s presence on the state’s territory. However, a state may by its actions, also enact jurisdiction outside its territory. Since the second and third phases of EUNAVFOR MED are conducted outside the EUMS’ territories, either on the high seas, in Libyan territorial waters or along the Libyan coast, any conduct would be extraterritorial. Lack of control by Libyan authorities combined with effective control

105_{http://www.eeas.europa.eu/csdp/missions-and-operations/eunavfor-med/news/20150715_en.htm} 106_{Decision 2015/778, preamble point 5.}

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over these area’s by EUMS forces, brings boat migrants in these areas under EUMS jurisdiction.

To begin with, the case law before the ECtHR has shown that jurisdiction may be established in situations where a state exercises effective control over persons, rather than territory. Also, states can be held to have jurisdiction when exercising de

facto and de jure control over a specific ‘area’, like a detention centre, even though it

may or may not have been authorized to do so. In a similar way, the HRC stated in the Burgos-Lopez case that a wider teleological viewing of ‘territory’ and ‘jurisdiction’ was necessary that was to include violations of the ICCPR provisions on another state’s territory. Thus jurisdiction can be established extraterritorially, when states effectively control a situation, both on another state’s territory and in res communis, like the high seas. EU Member States can thus be said to have (full) jurisdiction when, under the EUNAVFOR MED operation, they conduct operations against smuggling groups on Libyan territory and on the high seas.

2.5.2 The principle of non-‐refoulement in the context of the EUNAVFOR MED operation

When looking at the principle of non-refoulement, it is important to establish if a person meets the requirements to have this principle apply to him or her. First of all, this means that person needs to be qualified as a refugee under the 1951 Refugee Convention. Also, an expulsion from or a rejection at the state’s territory needs to be established. Based on the Hirsi case law of the ECtHR, this includes extraterritorial rejection or expulsion, as was described in paragraph 2.2.1. Thus when contingents of the EUNAVFOR MED Task force, as agents of their respective EUMS, would cause refugees to be unable to seek or request refuge, those EUMS would be in violation of their obligations under IRL.

One of the most pressing questions to be answered is whether, by carrying out an enforcement operation against smugglers and traffickers, boat migrants would be deprived of the right to enter a country to seek refuge. Thus the question is if the operation is in fact denying these boat migrants their basic rights under IRL. Based on what is delineated above, it is clear that any obstacle that effectively denies refugees their protection under IRL can lead to a breach thereof, whether this obstacle is established for this purpose or not. The principle of non-refoulement, as a core

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physically present in the territory of a state, in this case (an) EU Members State(s). With regard to the EUNAVFOR MED operation, this means that if Member States are enforcing anti-smuggling measures, for example by destroying boats, they are also effectively preventing refugees from legitimately exercising their rights. Thus, these actions would constitute a violation of the principle of non-refoulement under article 33(1) of the 1951 Convention. However, it remains to be seen if the measures taken under Council decision 2015/788 will in practice cause the EUMS to be in violation of their obligations under IRL.

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3 The Law of the Sea

Under the law of the sea there are two types of situations that are of importance with regard to Council decision 2015/778.107 The first is a situation in which a ship is intercepted on the high seas by agents of a state (e.g. Coast guard), on its way towards the state of destination. The second situation is characterized by the fact that the ship is in a situation of distress and is actively sending out distress signals to call upon (the agents of) the destination state(s) for help, whether this occurred intentionally or not.108 Before deliberating on both situations, first of all the legal framework of the high seas and maritime interception, as the most important exception to the principle of freedom of the high seas, will be discussed.109

3.1 Mare Liberum

Nowadays, the law governing the high seas is still grounded on the basic concept laid down by Hugo Grotius in his Mare Liberum (1609), in which he stated that the sea must be free because, by its nature, it is not susceptible to occupation.110 As a result, the high seas can be subject to no national jurisdiction and are governed by the principle of freedom of navigation, allowing vessels of all nations the right of passage, trade and exploitation.111 The fundamental principle of the freedom of the seas thus forms the basis upon which the law of the sea is built. This freedom is of a predominantly negative nature, meaning that states are essentially prohibited to interfere with non-national vessels without a legitimate reason.112 There are, however, also positive consequences contained in the principle of freedom of the high seas, since it also grants states the equal right to put the high seas to legitimate use.113 This right is elaborated further in the general rule that states are entitled to an inherent freedom to exercise sovereign power over vessels flying their flag, also referred to as

107_{This section will specifically deal with the law of the sea applicable to the high seas, due to fact that}

a more comprehensive outline would not serve the purpose of this thesis.

108_{Some smuggler crews tend to disembark migrant vessels in order not to get caught by the}

destination state’s authorities, leaving it adrift on the high seas.

109_{This too will be limited and therefore wartime situations will not be discussed here.}

110_{Treves, T., Historical Developments of the Law of the Sea, in: The Oxford Handbook of the Law of}

the Sea, Oxford University Press 2015, p. 4.

111_{Aalbertsa T.E., Gammeltoft-Hansen, T., Sovereignty at sea: the law and politics of saving lives in}

mare liberum, Journal of International Relations and Development 2014, vol. 17, (439–468), p. 440.

112_{Papastavridis, E., The Interception of Vessels on the High Seas: Contemporary Challenges to the}

Legal order of the Oceans, Hart Publishing 2014, p.1.

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the principle of flag-state jurisdiction.114 The most significant exception to this principle is the right of visit, also referred to as maritime interception.115 This right is generally regarded as a tool for the suppression of various uses of the oceans that are perceived to be opposing the general interest of states.116 The principle of maritime interception is found in article 110 UNCLOS and may be exercised only upon reasonable suspicion that the vessel in question is engaged in unlawful conduct under international law, typically piracy and slave trade.117 Each threat is, however, subject to a different set of rules and a different legal basis for interception at sea.118 This general legal framework applies to both situations mentioned above: where a ship is ‘normally’ intercepted, as in situations of distress.

3.2 Interception

Regular interceptions frequently occur on the high seas and are more commonly referred to as ‘maritime interdiction’ or ‘maritime interception’. A common international legal definition has not yet been determined.119 However, there are some commonly used standards, for instance the UNHCR’s reference to interdiction as one of the measures employed by States to:

“(i) prevent embarkation of persons on an international journey; (ii) prevent further onward international travel by persons who have commenced their journey; or (iii) assert control of vessels where there are reasonable grounds to believe that the vessel is transporting persons contrary to international or national maritime law.”120

Under the UNHCR’s definition, interdiction is thus considered as a measure aimed at either preventing a vessel from starting a journey or preventing unauthorized entry of persons.121 Interdiction is usually carried out by state vessels, referred to in article 29 UNCLOS as ‘warships’. These are exclusively entitled to conduct the right to visit, as

114_{Papastavridis, p.1.} 115_Ibid. 116_{Guilfoyle, D., p. 219.} 117_{Guilfoyle, D., p. 220.} 118_{Papastavridis, pp. 14-15.} 119_{Gallagher, p. 407.}

120_{UN High Commissioner for Refugees Executive Committee, Conclusion on}

Protection Safeguards in Interception Measures, Doc. No. 97 (LIV) – 2003, Oct. 10, 2003.

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laid down in article 110 UNCLOS.122 Seeing as the right of visit precedes the right to fully interdict a vessel, it can be assumed here that full interdiction is also accruing to warships.

As the high seas are beyond the jurisdiction or control of any single State and taking in consideration that states have exclusive jurisdiction on the high seas over vessels of their nationality, exercising jurisdiction over foreign vessels is subject to strict conditions.123 The customary principle of flag State jurisdiction, encoded in both the UNCLOS and The High Seas Convention, is formulated as follows:

“Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.”124

These exceptional cases are situations where the flag state has consented, situations of

hot pursuit and situations in which the status of a vessel is unknown or when there is

suspicion of internationally wrongful activities.125 Under the last two exceptions, the right to exercise jurisdiction needs to be preceded by visiting and/or approaching the vessel in question, among other things to verify its flag. Then it may be possible to further examine the vessel, if suspicion remains or arises.126 In line with the aforementioned, the right to visit, as an exception to the freedom of the high seas, is set up on a very restrictive basis.

3.2.1 Contemporary slave trade?

There are historical parallels between contemporary interception on the high seas and similar interception in the 19th and 20th century. Back then it was primarily directed against the smuggling of illegal substances – mostly alcohol – and for the abolishment of (international) slave trade. Presently, both concepts could be said to have evolved into drug trafficking and illicit migrant smuggling respectively.127 Regarding the latter, there is a certain distinction to be made however. Since the majority of persons smuggled have, in one way or another, voluntarily subjected

122_{Based on article 110(5) UNCLOS, also other state vessels, apart from warships, may apply the}

provisions of article 110, as it applies “to any other duly authorized ships or aircraft clearly marked

and identifiable as being on government service”.

123_{Gallagher, p. 420.}

124_{UNCLOS, at Art. 92(1). See also High Seas Convention , at Art. 6(1). See: Gallagher, A.T., David,}

F., The International Law of Migrant Smuggling, Cambridge University Press 2014, p. 420.

125_{Gallagher, p. 420.} 126_{Gallagher, p. 421.} 127_{Papastavridis, p. 38.}

EUNAVFOR MED: SOLUTION OR VIOLATION?