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Rescue at Sea, Maritime Interception and Stowaways, November 2006

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Rescue at Sea, Maritime Interception and Stowaways, November 2006 Selected Reference Materials Rescue at Sea, Maritime Interception and Stowaways November 2006 Introduction Legal issues arising from the involvement of refugees and other persons of concern to UNHCR in maritime incidents such as rescue at sea, maritime interception or stowaway cases, are complex and subject to different areas of international law. Apart from international refugee and human rights laws, maritime obligations, especially, need to be considered. This binder compiles applicable provisions of the international law of the sea, refugee, human rights and criminal law to assist UNHCR colleagues and other interested professionals to better understand the inter-relationship between these different areas of law. The compilation is not comprehensive, only key provisions have been chosen. Since refugee and human rights law provisions have been collected elsewhere, the references included form these areas of law are restricted to existing refoulement prohibitions and a few add provisions, recommendations and guidelines specifically relevant for maritime migration. The binder originally was prepared for a conference on rescue at sea and maritime interception in the Mediterranean. Recommendations adopted by the Parliamentary Assembly of the Council of Europe have therefore been included. It also contains background material of relevant conferences convened by UNHCR during the past years. Apart from the reference to the UN Treaty Series, whenever possible, a website link has been added to enable easy access to the complete texts. For most texts, the reference refers to an official UN website. Where this was not possible, another website has been provided. Although such external websites have been carefully chosen, a guarantee about their content and quality cannot be made. The publishers are grateful for any comments on the compilation or recommendation for the inclusion of further material in the next edition. DIPS/POLAS UNHCR Geneva November 2006 Photo Credits Cover Page: Courtesy of and copyrights Salvamento Maritimo, Spain. 1 Table of Contents INTERNATIONAL LAW OF THE SEA United Nations Convention on the Law of the Sea (UNCLOS), 1982 (excerpts) 5 Convention on the High Seas, 1958 (excerpt) 13 International Convention on Salvage, 1989 (excerpts) 115 International Convention for the Safety of Life at Sea (SOLAS), 1974 (excerpts) 17 International Convention on Maritime Search and Rescue (SAR), 1979 (excerpts) 21 Amendments to the Convention on Facilitation of International Maritime Traffic (FAL) of 1965, adopted in January 2002 (excerpts) 25 IMO guidelines 35 IMO Resolution MSC. 167(78), Annex 34, Guidelines on the Treatment of Persons Rescued at Sea, adopted on May 20, 2004 335 IMO Resolution A.920(22), Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea, adopted on 29 November, 2001 47 IMO Circular MSC/Circ. 896/Rev. 1, Interim Measures for Combating Unsafe Practices Associated with the Trafficking and Transport of Migrants by Sea, adopted on 12 June, 2001 51 IMO Resolution A.871(20) Guidelines on Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Case, Adopted on 27 November, 1997 59 INTERNATIONAL REFUGEE LAW1 Convention Relating to the Status of Refugees, 1951 and its Protocol (excerpts) 69 Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 (excerpts) 71 Conclusion adopted by the Executive Committee of the High Commissioner’s programme (ExCom) 73 Conclusion No. 97 (LIV) on Protection Safeguards in Interception Measures, 2003 73 1 UNHCR (publisher): Collection of international instruments and other legal texts concerning refugees and displaced persons, Geneva 1995. 2 Conclusion No. 53 (XXXIX) on Stowaway Asylum-Seekers, 1988 77 Conclusion No. 23 (XXXII) on Problems Related to the Rescue of Asylum-Seekers in Distress at Sea, 1981 79 Conclusion No. 20 (XXXI) on Protection of Asylum-Seekers at Sea, 1980 81 Conclusion No. 15 (XXX) on Refugees without an Asylum Country, 1979 83 UNHCR Guidelines and Position Papers 87 Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol to the Status of Refugees to victims of Trafficking and persons at risk of being trafficked (HCR/GIP/06/07, 7 April, 2006 (excerpt) 87 Interception of Asylum-Seekers and Refugees: The International Framework and Recommendation for a Comprehensive Approach, 18th Meeting of the Standing Committee (EC/50/SC/CRP.17), 9 June, 2000 91 Recommendation of the Parliamentary Assembly of the Council of Europe 101 Recommendation 1645: Access to assistance and protection for asylum-seekers at European seaports and coastal areas, adopted on 29 January, 2004 101 Recommendation 1449: Clandestine migration from the south of the Mediterranean into Europe, adopted on 28 January, 2000 105 INTERNATIONAL HUMAN RIGHTS LAW2 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (excerpts) 109 International Covenant on Civil and Political Rights, 1966 (excerpts) 109 International Covenant on Economic, Social and Cultural Rights, 1966 (excerpts) 114 Human Rights Committee, General Comment 31, paragraphes No. 10 and 12 117 Convention on the Rights of the Child, 1989 (excerpts) 117 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (excerpts) 119 2 UNHCR (publisher): Collection of international instruments and other legal texts concerning refugees and displaced persons, Geneva 1995. 3 Recommended Principles and Guidelines on Human Rights and Human Trafficking, 2002 (excerpts) 123 INTERNATIONAL CRIMINAL LAW3 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000 129 Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2000 139 RELEVANT CONFERENCE MATERIALS Meeting of State Representatives on Rescue at Sea and Maritime Interception in the Mediterranean, Madrid, 23 -24 May, 2006, Background Discussion Paper and Summary Proceedings 153 Expert meeting on Interception and Rescue in the Mediterranean – Cooperative Responses, 12 – 13 September 2005, Athens: Summary of discussions and recommendations 169 Expert Roundtable on Rescue-at- Sea: Specific Aspects Relating to the Protection of Asylum-Seekers and Refugees, 25 – 26 March, 2002 Lisbon: Summary of Discussion 177 Expert roundtable Rescue-at-Sea: Specific Aspects Relating to the Protection of Asylum-Seekers and Refugees, held in Lisbon, Portugal on 25-26 March, 2002. Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea 181 3 UNODC: Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto, New York 2004. 4 INTERNATIONAL LAW OF THE SEA United Nations Convention on the Law of the Sea (UNCLOS) 4 Opened for signature 10 December 1982 Entered into force 16 November 1994 UNCLOS defines the rights and obligations of governments, including flag states, in the various maritime zones under national jurisdiction and beyond areas of national jurisdiction, such as the high seas. As such, some of the provisions of the Convention are relevant to the treatment of refugees and asylum seekers at sea. Selected Provisions Article 17 - Right of innocent passage Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. Article 18 - Meaning of passage 1. Passage means navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility. 2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. Article 19 - Meaning of innocent passage 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. 2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: …… (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; …… (l) any other activity not having a direct bearing on passage. 4 1833 United Nations Treaty Series 397 electronically available at www.un.org/Depts/los. 5 Article 21 - Laws and regulations of the coastal State relating to innocent passage 1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: …… (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. …… 4. Foreign ships exercising
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