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University of New South Wales Law Journal Student Series |
DO STATES HAVE A DUTY TO PROTECT ASYLUM SEEKERS AND MIGRANTS RESCUED OR INTERCEPTED WHEREVER AT SEA? CONTEMPORARY ISSUES IN THE CENTRAL MEDITERRANEAN
MADELINE HOWARD[1]*
Maritime interception measures, often under the guise of rescue operations, have become an increasingly popular tool used by States to respond to migration pressures. The subject of this article is whether States have a duty to protect asylum seekers and migrants who are rescued or intercepted at sea, wherever they may be. This article seeks to answer that question by considering international law treaties, norms and principles, as applied to the contemporary interception and rescue practice conducted by Italy and Libya in the central Mediterranean Sea, with particular focus on an application against Italy currently before the European Court of Human Rights.
The remainder of this article is structured into four Parts as follows. Part II considers the nature of migration and maritime interception in the central Mediterranean Sea and notes that the practice of Italy ‘pushing back’ migrants towards Libya has been replaced by an arrangement in which Libya ‘pulls back’ migrants on behalf of Italy. Part III demonstrates that States have duties to protect arising under international search and rescue, human rights and refugee laws. Part III also argues these protection obligations apply extraterritorially but notes it may be difficult to find destination States hold jurisdiction over migrants in the case of pullbacks. Part IV discusses how these duties interact with States’ sovereign powers under the law of the sea and attempts by States to modify their duties under bilateral agreements, finding that neither may operate to the exclusion of States’ duties to protect. Part V offers some brief concluding remarks.
In recent times, coastal European States have faced “unprecedented arrivals” of asylum seekers and migrants.[1] One of the “most active and dangerous” routes people take is through the central Mediterranean Sea from Libya to Italy.[2] According to the United Nations High Commissioner for Refugees (‘UNHCR’), between January 2017 and March 2018, 124,711 people embarked on this route, with 2,873 reported to have died or gone missing at sea.[3] People have various motivations for moving from Libya to Italy: some are fleeing persecution and generalised violence (i.e. they are asylum seekers), while others travel in search of better economic and social conditions.[4] In this article, the term ‘migrant’ will be used to refer to all people who attempt this route, including asylum seekers.
Italy and Libya have cooperated since 2000 to address migration issues.[5] During this time, they have implemented several measures to reduce the number of migrant vessels travelling along the central Mediterranean route, including maritime interception measures. There is no universal consensus as to what constitutes a maritime interception, and as such, current definitions are based on State practice.[6] A working definition by the Executive Committee of the UNHCR provides that interception measures are measures used by a State to assert control over vessels of migrants who are undocumented or who lack permission for entry from the State.[7] These measures may include preventing migrants from embarking on international movement or from travelling further and entering the territory of the receiving State.[8]
Initially, Italy and Libya adopted a largely unilateral model of deterrence, where Italy had primary responsibility for conducting maritime interception measures to deter migrants from reaching its territory.[9] Under the purported authority of several bilateral agreements, including the 2008 Treaty on Friendship, Partnership and Cooperation,[10] Italy conducted a number of ‘pushbacks’.[11] These operations involved Italy intercepting, usually on the high seas, migrant vessels which had departed from Libya and returning the passengers to Libya.[12] One such interception became the basis of a claim before the European Court of Human Rights in 2012. In Hirsi Jamaa v Italy (‘Hirsi’),[13] 11 Somali nationals and 13 Eritrean nationals, who were part of a group of approximately 200 people intercepted by Italy on the high seas and returned to Libya, alleged Italy violated several of their rights under the European Convention on Human Rights (‘ECHR’).[14] The Court upheld these claims, finding the practice of pushback maritime interceptions “unacceptable” and inconsistent with Italy’s protection obligations.[15]
After Hirsi, and in response to a spike in arrivals,[16] Italy and Libya moved towards a more bilateral model which sought to shift interception responsibility away from Italy.[17] Under the authority of the 2017 Memorandum of Understanding (‘MoU’),[18] Libya agreed to enhance the security of its sea borders and capabilities of its coast guard in order to prevent migrant departures to Italy.[19] In return, Italy would provide support and financing, technical and technological support, and personnel training to Libya.[20] Although not explicitly provided for in the MoU, the strengthening of the Libyan coast guard led it to adopt a practice of ‘pullbacks’, where it would intercept migrant vessels, typically in its territorial sea, and return them to land.[21]
Agreements like this MoU which seek to outsource responsibility for maritime interceptions are part of a broader trend seeing the increasing externalisation of migration control.[22] However, considerable protection issues often arise in the context of maritime interceptions and there is some concern internationally that destination States may avoid responsibility for violations of protection obligations by externalising their operations.[23] This issue has formed the basis of an application currently before the European Court of Human Rights (‘SS v Italy’).[24]
On 6 November 2017, a search and rescue operation of an inflatable dinghy carrying migrants from Libya, was performed by a unit of the Libyan coast guard (Ras Jadir) and a private, NGO vessel Sea-Watch 3 under the coordination of Italy.[25] The application, made by 16 Niger nationals and 1 Ghanaian national, alleges Ras Jadir mistreated and harmed the migrants, obstructed the NGO crew from assisting in the rescue, and used dangerous manoeuvres leading to the deaths of several people.[26] The application seeks to hold Italy responsible for the actions of Ras Jadir which are alleged to have violated the applicants’ human rights. Analysing the circumstances of this incident in light of the findings of the Court in Hirsi may therefore prove a useful test of the scope of States’ duties to protect asylum seekers and migrants who are intercepted or rescued at sea.
It is widely recognised that asylum seekers and migrants, particularly those crossing the central Mediterranean Sea, are especially vulnerable to human rights violations.[27] ‘Protection’, according to the UNHCR, refers to any and all actions which are aimed at achieving full respect for these individuals’ rights, in accordance with international human rights, refugee and humanitarian law.[28] ‘International protection’ is a term used by the UNHCR to describe the process by which States cooperate to ensure these individual’s basic rights are being respected.[29] The primary sources of protection obligations relevant in the context of the central Mediterranean Sea are duties of search and rescue under the law of the sea, and duties to respect international human rights and the principle of non-refoulement.
While the law of the sea is primarily ‘State-centred’, it has two facets which are directed towards respecting fundamental human rights: (1) the duty on flag states to rescue those in distress at sea; and (2) the duty on coastal states to provide adequate search and rescue services and ensure survivors are disembarked and delivered to safety.[30]
The duty to rescue those in distress at sea is considered “firmly established”[31] in treaties and customary international law.[32] To the extent possible without causing serious danger to their ship, States are responsible for masters of ships flying their flag proceeding “with all possible speed to the rescue of persons in distress”.[33] This duty applies regardless of the nationality or legal status of the persons in distress.[34] The term ‘distress’ in this context refers to a prospect of danger, in the sense that there is a reasonable certainty that a person, vessel or other craft is “threatened by grave and imminent danger that requires immediate assistance”.[35]
To conduct a ‘rescue’ in accordance with its meaning under international law, States must retrieve the persons in distress, “provide for their initial medical or other needs, and deliver them to a place of safety”.[36] The ship’s master has an obligation to “do everything possible” to treat those who were rescued with “humanity” and to “meet their immediate needs”, considering the capabilities and limitations of the ship”.[37] ‘Place of safety’ is not defined in the relevant treaties, however the International Maritime Organization (‘IMO’) has issued guidelines which may carry normative force. The IMO guidelines define a ‘place of safety’ as the “place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met”.[38]
This duty to protect applies anywhere “at sea” and is therefore binding in all maritime zones.[39] Consequently, whenever a vessel performs a rescue operation in the central Mediterranean sea, the master of the vessel and its corresponding flag State have a duty to respect the basic needs of those they have rescued and ensure their safety of life is no longer threatened. In the incident in issue in SS v Italy, it is alleged the migrants were not treated with humanity or respect for their basic human rights. According to the application before the Court, the Libyan coast guard threatened rescued migrants with weapons, struck them with ropes, and did not provide them with life jackets.[40] Those who were taken aboard Ras Jadir were allegedly tied up, threatened and subjected to violence.[41] On the basis of these facts, it is apparent that Libya failed to adhere to the standard of protection required under international law. However, such a breach of its protection obligations does not give rise to a right of individual claim against Libya, and the claim before the Court instead focuses on a purported breach by Italy of its international human rights law obligations.
Coastal states have a positive duty to “promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea”.[42] States are also required to identify a search and rescue region, within which they undertake responsibility for ensuring the organisation and coordination of search and rescue services.[43] These duties are entrusted to a rescue coordination centre, established by the State.[44]
Since July 2006, the International Convention for the Safety of Life at Sea (‘SOLAS’) has provided that coastal States, within their search and rescue region, have “primary responsibility” to ensure coordination and cooperation among rescuers, so that the survivors are “disembarked from the assisting ship and delivered to a place of safety”.[45] Some have argued this entails an obligation on the part of the coastal State to allow rescued migrants to disembark at ports within its jurisdiction.[46] However, States have been unwilling to assume such an obligation as it encroaches on their sovereignty over the regulation of entry to their territory.[47]
In the facts giving rise to SS v Italy, the migrant vessel rescued was not clearly within a particular State’s delimited search and rescue area.[48] As such, it is unclear who carried legal responsibility for the migrants being disembarked at a place of safety. However, given the Rome Maritime Rescue Coordination Centre (‘MRCC’) was primarily responsible for the coordination of the rescue,[49] it arguably may have assumed responsibility for ensuring coordination and collaboration among the rescuers such that the survivors were delivered to a place of safety.
Those applicants who were taken aboard Ras Jadir were disembarked in Libya where the human rights of migrants and asylum seekers is considered “extremely dire”.[50] The UNHCR has advised that it “does not consider that Libya meets the criteria for being designated as a place of safety for the purpose of disembarkation following rescue at sea”.[51] Therefore, if Italy assumed responsibility for the rescued migrants being disembarked at a place of safety, it may possibly have been in breach of its search and rescue obligations. However, finding Italy in breach of its coastal State duties may be difficult considering, firstly, the rescue did not take place within its designed search and rescue area; and secondly, the phrasing of the duty may effectively limit Italy’s responsibility to ensuring ‘coordination and cooperation’, rather than achieving the result of delivering the migrants to a place of safety. As with the duties on flag States, a violation of the duties on coastal States would also not give rise to a right of individual claim.
As the circumstances giving rise to the claim in SS v Italy therefore show, States have duties of search and rescue which have an extraterritorial operation. States are responsible for the masters of vessels flying their flag treating rescued migrants with humanity and meeting their immediate needs, wherever they are rescued at sea. Coastal States are also responsible for ensuring migrants rescued within their search and rescue region are disembarked and delivered to safety. However, the extraterritorial operation of this duty may be complicated where rescues are not clearly within a particular State’s search and rescue region.
States also have a duty to respect, protect, fulfil and promote human rights recognised under international law.[52] In the context of the Mediterranean Sea, the most relevant international instruments are the International Covenant on Civil and Political Rights (‘ICCPR’)[53] and the ECHR. Amongst other things, these instruments provide that all people, whether asylum seekers or migrants, have a right to life, a right not to be subject to torture, or inhuman, cruel or degrading treatment, a right to leave a country, and a right not to be subject to collective expulsion. The extraterritorial scope of these duties will be considered in Part III(D) below.
Article 2 of the ECHR and article 6(1) of the ICCPR recognise the right of every individual to life. No derogation is permitted from this right, even on occasions where a public emergency threatens the life of the State.[54] This right assumes particular significance in the central Mediterranean Sea considering the high incidence of drownings of asylum seekers and migrants.[55] Several migrants are reported to have drowned in the incident on 6 November 2017, allegedly owing to the dangerous manoeuvres of Ras Jadir.[56] Their deaths have given rise to a claim in SS v Italy of deprivation of the right to life.[57]
Article 3 of the ECHR and article 7 of the ICCPR recognise the right of all individuals not to be subject to torture, cruel, inhuman or degrading treatment or punishment. As with the right to life, States may not derogate from this obligation under either Convention.[58] Implicit in this right is the principle of non-refoulement, which will be examined in greater depth in Part III(C)(2) below. Migrants who travel through the central Mediterranean route are commonly subjected to torture and inhuman, cruel and degrading treatment.[59] In the case of SS v Italy, the migrants were allegedly subjected to ill-treatment in the form of physical abuse by the Libyan coast guard. By depriving the migrants of their inherent dignity, and physical and mental integrity, these actions may have violated their human rights.[60]
As an extension of an individual’s right to freedom of movement, article 2(1) of Protocol No 4 to the ECHR[61] and article 12(2) of the ICCPR recognise the right of everyone to “leave any country, including his [or her] own”. However, this right is not absolute, and States may restrict its exercise, as is necessary and proportionate to achieving aims of “national security”, “public safety”, and “the maintenance of ordre public” (i.e. public order).[62] By conducting pullback operations, the Libyan coast guard effectively prevents migrants, such as those in SS v Italy, from leaving Libyan territory. It could possibly be argued that such pullbacks are conducted with a view to achieving the aforementioned aims of national security, public safety and maintenance of public order. However, to satisfy the proportionality element, States need to conduct a case-by-case analysis balancing each migrant’s right to leave against the State’s right to restrict their movement.[63] Consequently, implementing blanket pullbacks most likely violates the right of migrants to leave their State of departure.
Article 4 of Protocol No 4 to the ECHR recognises that “collective expulsion of aliens is prohibited”. In Becker v Denmark,[64] the European Commission of Human Rights found collective expulsion includes “any measure ... compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien in the group”.[65] This decision was cited with approval in Hirsi,[66] and used to find that the pushback interceptions carried out by Italy on the high seas constituted a collective expulsion, as they failed to ensure that the protection needs of each individual migrant were reasonably and objectively examined, or that the crew on board were adequately trained to carry out such an examination.[67] Similarly, it seems that blanket pullback measures such as those conducted by Libya would fall foul of the right not to be subject to collective expulsion.
Individuals have a right to ‘seek and enjoy’ asylum and a right to freedom of movement under international law.[68] However, States do not have a duty to grant asylum or entry to asylum seekers and migrants who travel by sea to their territory.[69] This principle extends from States’ national sovereignty, and their correlative right to exclude ‘aliens’ or foreigners from their territory.[70] Nevertheless, the principle of non-refoulement limits the ways in which States may exercise this sovereignty.[71] This principle has a basis under international refugee law and international human rights law, with both sources assuming the status of customary international law. As the extraterritorial scope of these obligations mirrors that of the aforementioned duties under international human rights law, they will be considered together in Part III(D) below.[72]
Article 33(1) of the 1951 Convention Relating to the Status of Refugees (‘the 1951 Convention’) imposes a duty on Contracting States not to “expel or return” a refugee (regardless of whether they have been granted formal refugee status)[73] “in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion”.[74] By virtue of article 1(1) of the 1967 Protocol Relating to the Status of Refugees (‘the 1967 Protocol’),[75] this duty also binds States Parties to the 1967 Protocol. However, as the principle has also assumed the status of customary international law, it may now be considered to bind all States, regardless of whether they are parties to the 1951 Convention or the 1967 Protocol.[76]
Commentary on this provision notes that a threat to life or freedom also includes a threat of persecution, or real risk of torture, cruel, inhuman or degrading treatment or punishment.[77] To fulfil the requirements of this duty, States must review the individual circumstances of each person they expel or return, to consider whether they qualify for protection, even in cases where States receive a mass influx of asylum seekers.[78] Consequently, blanket pushback and pullback operations are unlikely to meet States’ non-refoulement obligations under international refugee law.
It is unclear at this stage whether any of the migrants aboard the vessels in question in SS v Italy were asylum seekers. If they were, their right to non-refoulement was likely violated by their return to Libya where they faced potential ill-treatment and/or repatriation. To meet their non-refoulement obligations, UNHCR has urged States not to return any intercepted asylum seekers to Libya.[79]
As mentioned above, the principle of non-refoulement also has a basis under international human rights law.[80] The principle has been found to be implicit in the right to life and the right not to be subject to cruel, inhuman or degrading treatment or punishment, recognised in various international instruments,[81] and has assumed the status of customary international law.[82] In this context, the principle (also known as ‘complementary protection’) prohibits States from rejecting, returning, or expelling individuals, in any manner whatsoever, to a place where they face a real risk of significant harm (in the form of an arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment).[83] The duty therefore protects all migrants, regardless of whether they meet the status of a refugee or asylum seeker.[84] Given the poor human rights record of Libya, all migrants who were taken aboard Ras Jadir and returned to Libya likely faced a real risk of significant harm. Pushback and pullback operations which return migrants to Libya are therefore likely to fall foul of the principle of non-refoulement under both international refugee and human rights law.
A State may be held accountable to the fulfilment of its obligations under international human rights and refugee law whenever it may be said to be exercising jurisdiction.[85] For example, article 1 of the ECHR provides that the “High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms” set out in the Convention. Similarly, article 2(1) of the ICCPR provides that its State Parties undertake “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”. General principles of state responsibility under international law stipulate that jurisdiction in this context has an extraterritorial dimension, protecting any individuals who come under the “effective control” of the State, or who are affected by those acting “on behalf of” that State.[86] Under this ‘functional conception’ of jurisdiction, a State’s duties to protect are not limited to its territory and, in principle, could arise whenever a State exercises effective control over migrants at sea, wherever they may be.[87]
However, the MoU, which effectively outsources control of Italy’s maritime interception operations to Libya, complicates the possibility of finding Italy held jurisdiction over the intercepted migrants. The applicants in SS v Italy seek to hold Italy accountable for the actions of the crew of Ras Jadir which they allege violated their right to life, right not to be subject to torture or cruel, inhuman or degrading treatment and slavery,[88] and the principle of non-refoulement.[89] In Hirsi, the Grand Chamber found the applicant migrants were under Italy’s jurisdiction for the purposes of article 1 of the ECHR.[90] The Court relied on the fact that the pushback maritime interception had taken place on a military vessel flying the Italian flag,[91] with a crew “composed exclusively of the Italian armed forces”.[92] However, in the facts giving rise to SS v Italy, the pullback interception was performed by a Libyan coast guard vessel and the members of the crew were Libyan.[93] On the basis of this information alone, it would seem unlikely that Italy could hold jurisdiction over the intercepted migrants.
However, the existence of the MoU indicates that the pullbacks were being performed by Libya in the interests of Italy.[94] The Libyan coast guard is unlikely to have possessed the capability to carry out the interception in question without the funding, equipment and training provided by Italy as part of the MoU.[95] Further, the vessel performing the interception, Ras Jadir, was donated to Libya by Italy in May 2017, and 8 members of the 13 member crew aboard had received training by EUNAVFOR MED, contributed to by Italy.[96] Italy was also involved in coordinating the rescue in issue through the Rome MRCC and an Italian navy helicopter was present at the scene.[97] Accumulating these instances of Italian influence on the Libyan coast guard, it seems plausible that the Libyan coast guard could be said to be acting under the effective control, or on behalf of Italy.
This move could be supported by finding that Italy used these measures as an attempt to circumvent its protection obligations under international human rights law.[98] The Vienna Convention on the Law of Treaties,[99] states that a treaty must be interpreted “in good faith”, having regard to the treaty’s object and purpose.[100] In Soering,[101] the European Court of Human Rights held the purpose of the ECHR is the “protection of individual human beings”, which requires an interpretation “so as to make its safeguards practical and effective”.[102] While the principle of good faith does not in itself provide a source of finding jurisdiction,[103] commentators believe it may “prove fundamental”[104] in compelling the Court to move beyond the scope of the existing case law.[105] Ultimately, however, to extend jurisdiction to Italy, the Court will need to take international State responsibility and human rights protection norms “a step further”,[106] and there is a very real possibility that it may choose otherwise.[107]
It is therefore clear that States have duties arising under international search and rescue, refugee and human rights laws. Each of these duties have, to some extent, an extraterritorial operation. However, in the case of duties of search and rescue, State jurisdiction is limited by the role of the State in the rescue and location of the vessel being rescued. In the case of duties to respect international human rights and the principle of non-refoulement, States could in principle, be bound anywhere at sea providing they are exercising effective control over the migrants being intercepted or rescued. However, as the case of SS v Italy shows, the contemporary practice of using bilateral agreements to outsource maritime interception operations may make it difficult to find destination States hold jurisdiction and are therefore responsible for violations of international protection obligations. If the Court declines to extend jurisdiction to Italy, commentators warn it may serve to support the legitimacy of such bilateral arrangements and the pullback policy in the eyes of Italy and the international community.[108]
Even where a State is exercising jurisdiction over intercepted or rescued migrants, it may still seek to limit its protection obligations by arguing such duties are inconsistent with bilateral agreements it has entered into or its sovereign rights under the law of the sea.[109] However, as the following analysis indicates, the potential interaction between these sources of obligations should not operate to the exclusion of a State’s duty to protect migrants and asylum seekers intercepted or rescued at sea, wherever they may be.
Bilateral agreements, such as the MoU concluded between Italy and Libya may seek to divide international protection obligations between States.[110] While the MoU reaffirmed Italy and Libya’s intention to comply with their international human rights obligations,[111] its effect was to shift international protection obligations from Italy to Libya. Generally, international law provides limited guidance in determining whether duties to protect may be limited in these circumstances.[112] Some direction may be sourced from the UNHCR Executive Committee which considers that the State “within whose sovereign territory, or territorial waters, interception takes place has primary responsibility for addressing any protection needs of intercepted persons”.[113] In the case of pullback measures, this would mean States of departure, such as Libya, would typically hold primary responsibility for fulfilling the protection needs of migrants they intercept or rescue at sea. Consequently, destination States, such as Italy, may be absolved of such responsibility.
However, Italy is also aware that Libya has a historically poor track record with regard to human rights violations and is not a party to the 1951 Convention, the 1967 Protocol or the ECHR.[114] In these circumstances, Thomas Gammeltoft-Hansen has argued that it would be “highly questionable” whether the bilateral agreement could relieve Italy of its protection obligations.[115] The better view, would be that the territorial state, “to the extent that full and effective protection can be guaranteed ... would be the preferred party to take on protection obligations”.[116] Supporting this view, the UNHCR Executive Committee has also noted that maritime interception measures “should not result in asylum-seekers and refugees being denied access to international protection” or being subject to refoulement.[117] Therefore, where bilateral agreements purport to shift States’ responsibilities with the ultimate effect of limiting migrants’ access to protection, they are unlikely to absolve States of their duties to protect.[118]
States often describe their maritime interception operations, including both pushbacks and pullbacks, as ‘rescue’ operations in order to justify their exercise of jurisdiction over the migrant vessel. Most asylum seeker and migrant vessels crossing the central Mediterranean Sea are unseaworthy, extremely overcrowded and lack adequately trained crew members.[119] Given the prospective nature of the definition of ‘distress’ considered above, most of these vessels could in principle be considered ‘in distress’ from the moment they depart from Libya.[120] As such, general unseaworthiness may provide a basis for States intercepting migrant vessels.
However, in Hirsi, the Court held that Italy could not “circumvent its “jurisdiction” under the [ECHR] by describing the events in issue as rescue operations on the high seas”.[121] It is therefore the better position that a State cannot absolve itself of its duty to protect migrants it intercepts at sea by declaring such interceptions to be rescue operations. Further, rescuing States are still required to treat rescued migrants with humanity and meet their immediate needs until they are delivered to a place of safety.
Where interception measures take place on the high seas, States may argue their protection obligations are limited, as the asylum seeker and migrant vessels are without nationality, and consequently, are subject to a right of visit.[122] While it is plausible that asylum seeker and migrant vessels may be considered to lack nationality,[123] it is unlikely that a right to board such vessels also extends to a right to exercise powers of arrest or interdiction.[124] Most commentators consider that a right to exercise these enforcement style measures does not exist unless expressly conferred under international law,[125] and no enforcement powers are provided under the United Nations Convention on the Law of the Sea (‘UNCLOS’) in respect of the right of visit of a ship without nationality.
Further, even if States had such powers, they do not operate to the exclusion of their international protection obligations. Article 19(1) of the Protocol Against Smuggling of Migrants by Land, Sea and Air provides that “[n]othing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law, and in particular, where applicable, the 1951 Convention and the 1967 Protocol ... and the principle of non-refoulement”.[126] Similarly, the UNCLOS provides that courts or tribunals applying the Convention “shall apply ... other rules of international law not incompatible with this Convention”.[127] Therefore, where States exercise a right of visit on the high seas to verify the nationality of a migrant vessel, they are still bound by their duties to protect, including as Guy Goodwin-Gill and Jane McAdam have argued, “elementary considerations of humanity”.[128]
Where interceptions take place in a State’s contiguous zone or territorial sea, the State may seek to justify its actions on the basis of its sovereign powers. In its territorial sea, a State exercises full sovereignty, subject to the right of innocent passage of other vessels.[129] Passage will be considered innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State”.[130] However, passage will be considered prejudicial where it involves, amongst other things, the “loading or unloading of any ... person” contrary to the customs or immigration laws of the coastal State.[131]
There is some disagreement amongst commentators as to whether migrant and asylum seeker vessels, which seek the protection or settlement of the State, are accordingly removed from the right of innocent passage.[132] However, assuming such passage may be considered ‘not innocent’, States may only take steps as are “necessary” to prevent such passage.[133] This does not include the exercise of criminal jurisdiction, except in certain limited circumstances, none of which arise in the case of asylum seeker and migrant movements.[134] While States are also usually given a margin of appreciation in determining whether the measures they adopt in response to a threat are proportionate to that end,[135] measures are unlikely to be considered lawful where they result in the death of migrants,[136] as was the case in SS v Italy. Further, where a migrant or asylum seeker vessel is in distress, they have a right to seek refuge in adjacent coastal ports under the UNCLOS and customary international law.[137]
In the contiguous zone, which extends between 12 and 24 nautical miles from a State’s baselines, States may exercise such control as ‘necessary’ to prevent or punish infringement of its customs and immigration laws within its territory or territorial sea.[138] As in the territorial sea, any exercise of jurisdiction by the coastal State over vessels in its contiguous zone must be proportionate.[139] Exercising powers of interception, detention, escort to port, or forcible return are all considered to fall outside of the limits of State power in this region.[140] As such, pullback and pushback operations like those conducted by Italy and Libya are unlikely to be within the permissible bounds of their sovereign powers. Further, the requirement for measures which aim to protect these sovereign powers to be proportionate in both the territorial sea and the contiguous zone, and the fact that the UNCLOS provides for the operation of other rules of international law,[141] make it strongly arguable that interception measures which violate international protection obligations are impermissible.
States have duties to protect asylum seekers and migrants under international search and rescue, human rights and refugee law. These duties have extraterritorial dimensions. While in principle this means they could apply wherever asylum seekers and migrants are intercepted at sea, the contemporary practice of entrusting interception operations to States of departure may make it difficult to prove destination States have jurisdiction over the intercepted migrants. States may also seek to use these bilateral agreements, as well as their powers under the law of the sea, as a basis for limiting their protection obligations. However, the better view under international law is that such obligations and powers are unable to limit States’ duties to protect.
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United Nations High Commissioner for Refugees, Rescue at Sea, Stowaways and Maritime Interception: Selected Reference Materials (2nd ed, December 2011)
United Nations High Commissioner for Refugees, UNHCR Position on Returns to Libya (Update II) (September 2018)
United Nations Office of the High Commissioner and Inter-Parliamentary Union, Human Rights (Handbook for Parliamentarians No 26, 2016)
Becker v Denmark (1975) 4 Eur Comm HR, 236
Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania) (Judgment) [1949] ICJ Rep 4
The Creole (The Enterprise v Great Britain) (Award, Commission Established Under the Convention Concluded Between the United States of America and Great Britain on 8 February 1853, 23 December 1854) reported in United Nations, XXIX, Reports of International Arbitral Awards, 26
Hirsi Jamaa v Italy (2012) II Eur Court HR 97
Soering v United Kingdom (1989) 98 ILR 270
SS v Italy (European Court of Human Rights, 21660/18, commenced 3 May 2018)
American Convention on Human Rights “Pact of San José, Costa Rica”, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 278 (entered into force 25 May 1980)
International Convention on Maritime Search and Rescue, opened for signature 27 April 1979, 1405 UNTS 1985 (entered into force 22 June 1985)
International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 22 March 1976)
Memorandum of Understanding on Cooperation in the Fields of Development, the Fight Against Illegal Immigration, Human Trafficking and Fuel Smuggling and on Reinforcing the Security of Borders between the State of Libya and the Italian Republic, signed 2 February 2017
Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms Securing Certain Rights and Freedoms Other Than Those Already Included In the Convention and In the First Protocol Thereto, opened for signature 16 September 1963, ETS No 46 (entered into force 2 May 1968)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Trattato di Amicizia, Partenariato, e Cooperazione [Treaty on Friendship, Partnership and Cooperation], Italy–Libya, signed 30 August 2008, 40 GU Serie Generale 5, entered into force 2 March 2009 [tr Sandra Uselli, Italy-Libya Agreement: The Memorandum Text (Web Page) <https://www.asgi.it/wp-content/uploads/2017/02/ITALY-LIBYA-MEMORANDUM-02.02.2017.pdf>]
United Nations Convention Against Transnational Organized Crime Protocol, GA Res 55/25, UN Doc A/RES/55/25 (8 January 2001, adopted 15 November 2000) annex III (‘Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime’)
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994)
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)
Declaration on Territorial Asylum, GA Res 2312, 1631st mtg, UN Doc A/RES/2312(XXII) (14 December 1967)
Maritime Safety Committee, International Maritime Organization, Guidelines on the Treatment of Persons Rescued at Sea, Res MSC.167(78), MSC Doc No 78/26/Add.2 (20 May 2004)
Ministerial Meeting of States Parties to the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, Declaration of States Parties to the 1951 Convention and or Its 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/MMSP/2001/09 (16 January 2002)
New York Declaration for Refugees and Migrants, GA Res 71/1, 71st sess, Agenda Items 13 and 117, UN Doc A/RES/71/1 (3 October 2016)
United Nations High Commissioner for Refugees Executive Committee, Conclusion on Protection Safeguards in Interception Measures, No 97 (LIV), UN A/58/12/Add. 1 (2003) [22]
United Nations High Commissioner for Refugees Executive Committee, General Conclusion on International Protection, No 25 (XXXIII), UN Doc A/37/12/Add.1 (1982)
United Nations Human Rights Committee, General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 44th sess (1992)
United Nations Human Rights Committee, General Comment No 27: Freedom of Movement (Art. 12), 67th sess, 1783rd mtg, UN Doc CCPR/C/21/Rev.1/Add.9 (2 November 1999)
United Nations Human Rights Committee, General Comment No 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 80th sess, 2187th mtg, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004)
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1984)
* BSc, LLB (Hons) student at UNSW Sydney. This article was originally written as a research essay for LAWS3[1]87: Forced Migration and Human Rights in International Law. I am sincerely grateful to Madeline Gleeson for offering guidance and support and recommending the essay for publication.
[1] Giulia Ciliberto, ‘Libya’s Pull-Backs of Boat Migrants: Can Italy Be Held Accountable for Violations of International Law?’ (2018) 4(2) Italian law Journal 489, 489–90.
[2] United Nations High Commissioner for Refugees, Central Mediterranean Route (Supplementary Appeal, March 2018) 4.
[3] Ibid 3.
[4] Ibid 4.
[5] For an overview of bilateral agreements on migration issues concluded between Italy and Libya from 2000 to 2009: see Mariagiulia Giuffré, ‘State Responsibility Beyond Borders: What Legal Basis for Italy’s Push-Backs to Libya’ (2012) 24(2) International Journal of Refugee Law 692, 700–3.
[6] United Nations High Commissioner for Refugees, Maritime Interception Operations and the Processing of International Protection Claims: Legal Standards and Policy Considerations with Respect to Extraterritorial Processing (Protection Policy Paper, November 2010) 1 n 2 (‘Maritime Interception Operations’).
[7] United Nations High Commissioner for Refugees Executive Committee, Conclusion on Protection Safeguards in Interception Measures, No 97 (LIV), UN A/58/12/Add. 1 (2003) [22].
[8] Ibid.
[9] Ciliberto (n 1) 492.
[10] Trattato di Amicizia, Partenariato, e Cooperazione [Treaty on Friendship, Partnership and Cooperation], Italy–Libya, signed 30 August 2008, 40 GU Serie Generale 5, entered into force 2 March 2009 [tr Sandra Uselli, Italy-Libya Agreement: The Memorandum Text (Web Page) <https://www.asgi.it/wp-content/uploads/2017/02/ITALY-LIBYA-MEMORANDUM-02.02.2017.pdf>]. See also Giuffré (n 5) 701–3.
[11] See, eg, Giuffré (n 5); Hirsi Jamaa v Italy (2012) II Eur Court HR 97, [13]–[14] (‘Hirsi’).
[12] See Giuffré (n 5) 703–5; United Nations High Commissioner for Refugees, Maritime Interception Operations (n 6) 1–2 [1].
[13] Hirsi (n 11).
[14] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘ECHR’).
[15] Hirsi (n 11)
[16] Ciliberto (n 1) 490.
[17] Ibid 492–3.
[18] Memorandum of Understanding on Cooperation in the Fields of Development, the Fight Against Illegal Immigration, Human Trafficking and Fuel Smuggling and on Reinforcing the Security of Borders between the State of Libya and the Italian Republic, signed 2 February 2017 (‘Memorandum of Understanding’). See also Andrew & Renata Kaldor Centre for International Law, European Responses to Forced Migration 2015 – June 2018 (Research Brief, December 2018) 36.
[19] Memorandum of Understanding (n 18) arts 1(c), 2(2)–(3).
[20] Ibid arts 1, 2(3).
[21] See Ciliberto (n 1) 499.
[22] Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge University Press, 2011) 16.
[23] See, eg, Ciliberto (n 1) 491.
[24] ‘Exposé des Faits et Questions’ [‘Statement of Facts and Questions’], SS v Italy (European Court of Human Rights, Application No 21660/18, 3 May 2018) (‘SS v Italy’).
[25] Ibid 1–2 [2]–[12].
[26] Ibid 1–2 [1]–[12].
[27] See, eg, United Nations High Commissioner for Refugees, Central Mediterranean Route (n 2) 3.
[28] United Nations High Commissioner for Refugees, A Guide to International Refugee Protection and Building State Asylum Systems (Handbook for Parliamentarians No 27, 2017) 261.
[29] Ibid 15.
[30] Ciliberto (n 1) 503.
[31] Goodwin-Gill, Guy S, and Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 278.
[32] See especially, United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) art 98(1) (‘UNCLOS’).
[33] Ibid art 98(1)(b).
[34] International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 278 (entered into force 25 May 1980) annex [2.1.10] (‘SOLAS’).
[35] Ibid annex [1.3.13].
[36] International Convention on Maritime Search and Rescue, opened for signature 27 April 1979, 1405 UNTS 1985 (entered into force 22 June 1985) ch III reg 3.1.9; annex reg 1.3.2 (‘SAR’).
[37] SOLAS (n 34) reg 33 [6]; Maritime Safety Committee, International Maritime Organization, Guidelines on the Treatment of Persons Rescued at Sea, Res MSC.167(78), MSC Doc No 78/26/Add.2 (20 May 2004) [5.1.2] (‘IMO Guidelines’).
[38] IMO Guidelines (n 37) appendix [3].
[39] UNCLOS (n 32) arts 18(2), 58(2), 98(1); SOLAS (n 34) ch V reg 33 [1-1].
[40] SS v Italy (n 24) 2 [6].
[41] Ibid 2 [11].
[42] UNCLOS (n 32) art 98(2).
[43] SAR (n 36) chs 2–3.
[44] Ibid ch 2 reg 2.3.
[45] SOLAS (n 34) reg 33 [1-1].
[46] See Ciliberto (n 1) 506 n 88.
[47] See Natalie Klein, ‘A Maritime Security Framework for the Legal Dimensions of Irregular Migration by Sea’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds) Boat Refugees and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff, 2016) 35, 46–9.
[48] SS v Italy (n 24) 8. See also Ciliberto (n 1) 500.
[49] SS v Italy (n 24) 1–2 [3], [5].
[50] Annick Pijnenburg, ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?’ (2018) 20(4) European Journal of Migration and Law 396, 404. See also Hirsi (n 11) 14–20, 35–8.
[51] United Nations High Commissioner for Refugees, UNHCR Position on Returns to Libya (Update II) (September 2018) 22 [42].
[52] See, eg, United Nations Office of the High Commissioner and Inter-Parliamentary Union, Human Rights (Handbook for Parliamentarians No 26, 2016).
[53] International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 22 March 1976) (‘ICCPR’).
[54] ECHR (n 14) art 15(1)–(2); ICCPR (n 53) art 4(1)–(2).
[55] United Nations High Commissioner for Refugees, Central Mediterranean Route (n 2) 3.
[56] SS v Italy (n 24) 2 [6], [10].
[57] Ibid 7.
[58] ECHR (n 14) art 15(1)–(2); ICCPR (n 53) art 4(1)–(2).
[59] See United Nations High Commissioner for Refugees, Desperate Journeys: Refugees and Migrants Arriving in Europe and at Europe’s Borders January – December 2018 (Report, January 2019).
[60] United Nations Human Rights Committee, General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 44th sess (1992).
[61] ECHR (n 14), as amended by Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms Securing Certain Rights and Freedoms Other Than Those Already Included In the Convention and In the First Protocol Thereto, opened for signature 16 September 1963, ETS No 46 (entered into force 2 May 1968).
[62] Ibid art 2(3); ICCPR (n 53) art 12(3).
[63] See, eg, United Nations Human Rights Committee, General Comment No 27: Freedom of Movement (Art. 12), 67th sess, 1783rd mtg, UN Doc CCPR/C/21/Rev.1/Add.9 (2 November 1999); Ciliberto (n 1) 516.
[64] (1975) 4 Eur Comm HR, cited in Hirsi (n 11) [166].
[65] Ibid.
[66] Hirsi (n 11) [166].
[67] Ibid [185]–[186].
[68] See Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1984) art 14(1); Guy S Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23(3) International Journal of Refugee Law 443, 444 (‘The Right to Seek Asylum’).
[69] See, eg, Goodwin-Gill, ‘The Right to Seek Asylum’ (n 68) 444; Gammeltoft-Hansen (n 22) 13–4; Universal Declaration of Human Rights (n 68) art 14(1); Declaration on Territorial Asylum, GA Res 2312, 1631st mtg, UN Doc A/RES/2312(XXII) (14 December 1967) arts 1(1), (3).
[70] Gammeltoft-Hansen (n 22) 13.
[71] Ibid 13–4; Goodwin-Gill, ‘The Right to Seek Asylum’ (n 68) 444.
[72] Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Principle of Non-Refoulement: Opinion’ in Erika Feller et al. (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003) 159–60; James Mansfield, ‘Extraterritorial Application and Customary Norm Assessment of Non-Refoulement: The Legality of Australia’s ‘Turn-Back’ Policy’ (2015) 17 University of Notre Dame Review 18, 36.
[73] Lauterpacht and Bethlehem (n 72) 116–18; United Nations High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (26 January 2007) 2–3 [6] (‘Extraterritorial Application of Non-Refoulement Obligations’).
[74] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 33(1).
[75] Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[76] See, eg, New York Declaration for Refugees and Migrants, GA Res 71/1, 71st sess, Agenda Items 13 and 117, UN Doc A/RES/71/1 (3 October 2016) [24], [58], [67]; Ministerial Meeting of States Parties to the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, Declaration of States Parties to the 1951 Convention and or Its 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/MMSP/2001/09 (16 January 2002) [4]; United Nations High Commissioner for Refugees Executive Committee, General Conclusion on International Protection, No 25 (XXXIII), UN Doc A/37/12/Add.1 (1982) (b); Lauterpacht and Bethlehem (n 72) 149–50.
[77] Lauterpacht and Bethlehem (n 72) 125–6, 128.
[78] Ibid 118–21.
[79] United Nations High Commissioner for Refugees, UNHCR Position on Returns to Libya (Update II) (n 51) 21 [39].
[80] Lauterpacht and Bethlehem (n 72) 152–3, 162.
[81] See, eg, Universal Declaration of Human Rights (n 68) art 5; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 3(1); ICCPR (n 53) arts 2, 6, 7; ECHR (n 14) art 3; American Convention on Human Rights “Pact of San José, Costa Rica”, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) art 5(2).
[82] See Lauterpacht and Bethlehem (n 72) 152–5.
[83] See, eg, United Nations Human Rights Committee, General Comment No 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 80th sess, 2187th mtg, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) [12]; Lauterpacht and Bethlehem (n 72) 163.
[84] Lauterpacht and Bethlehem (n 72) 162–3.
[85] Ibid 159–60; United Nations High Commissioner for Refugees, Extraterritorial Application of Non-Refoulement Obligations (n 73) 17–18 [39].
[86] Ibid 159–60.
[87] Gammeltoft-Hansen (n 22) 152; Marko Milanovic, Extraterritorial Application of Human Rights – Law, Principles and Policy (Oxford University press, 2011) 11–18.
[88] See ECHR (n 14) art 4.
[89] SS v Italy (n 24) 7.
[90] Hirsi (n 11) [70]–[82].
[91] Ibid [76].
[92] Ibid [81].
[93] SS v Italy (n 24) 1–2 [2]–[12].
[94] Ciliberto (n 1) 499.
[95] Ibid 527.
[96] Pijnenburg (n 50) 405.
[97] Ibid 406.
[98] Ibid 407. See also Hirsi (n 11) [129].
[99] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).
[100] Ibid art 31.
[101] Soering v United Kingdom (1989) 98 ILR 270.
[102] Ibid 301 [87].
[103] Ciliberto (n 1) 521.
[104] Ibid 519.
[105] Pijnenburg (n 50) 426.
[106] Ibid.
[107] Ibid.
[108] Ibid 406.
[109] Gammeltoft-Hansen (n 22) 151.
[110] Ibid 156.
[111] Memorandum of Understanding (n 18) preamble, art 5.
[112] Gammeltoft-Hansen (n 22) 156.
[113] United Nations High Commissioner for Refugees Executive Committee, Conclusion on Protection Safeguards in Interception Measures (n 7) (a)(i).
[114] See, eg, Hirsi (n 11) [131].
[115] Gammeltoft-Hansen (n 22) 156–7.
[116] Ibid 156.
[117] United Nations High Commissioner for Refugees Executive Committee, Conclusion on Protection Safeguards in Interception Measures (n 7) (a)(iv).
[118] Violeta Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23(2) International Journal of Refugee Law 174, 201 (‘Seeking Asylum in the Mediterranean’); Guy S Goodwin-Gill, ‘The Extraterritorial Processing of Claims to Asylum or Protection: The Legal Responsibilities of States and International Organisations’ [2007] UTSLawRw 2; (2007) 9 UTS Law Review 26, 34 (‘The Extraterritorial Processing of Claims’).
[119] United Nations High Commissioner for Refugees, Rescue at Sea, Stowaways and Maritime Interception: Selected Reference Materials (2nd ed, December 2011) 4.
[120] Violeta Moreno-Lax, The Interdiction of Asylum Seekers at Sea: Law and (Mal)Practice in Europe and Australia (Policy Brief No 4, May 2017) 7 (‘The Interdiction of Asylum Seekers at Sea’).
[121] Hirsi (n 11) [79].
[122] UNCLOS (n 32) art 110(d); United Nations Convention against Transnational Organized Crime Protocol, GA Res 55/25, UN Doc A/RES/55/25 (8 January 2001, adopted 15 November 2000) annex III (‘Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime’) art 8(1).
[123] See Goodwin-Gill and McAdam (n 31) 272.
[124] Moreno-Lax, The Interdiction of Asylum Seekers at Sea (n 120) 5.
[125] Ibid 5.
[126] Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime (n 122) art 19(1) (citations omitted).
[127] UNCLOS (n 32) art 293(1).
[128] Goodwin-Gill and McAdam (n 31) 272; Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania) (Judgment) [1949] ICJ Rep 4, 22.
[129] UNCLOS (n 32) arts 2(1), 17.
[130] Ibid art 19(1).
[131] Ibid art 19(2)(g).
[132] See, eg, Goodwin-Gill and McAdam (n 31) 274; Moreno-Lax, The Interdiction of Asylum Seekers at Sea (n 120) 4.
[133] UNCLOS (n 32) art 25(1).
[134] Ibid art 27(1); Goodwin-Gill and McAdam (n 31) 274.
[135] Goodwin-Gill and McAdam (n 31) 272.
[136] Ibid 272.
[137] UNCLOS (n 32) art 18(2); The Creole (The Enterprise v Great Britain) (Award, Commission Established Under the Convention Concluded Between the United States of America and Great Britain on 8 February 1853, 23 December 1854) reported in United Nations, XXIX, Reports of International Arbitral Awards, 26; Moreno-Lax, The Interdiction of Asylum Seekers at Sea (n 120) 4.
[138] UNCLOS (n 32) art 33.
[139] Goodwin-Gill and McAdam (n 31) 276–7.
[140] Moreno-Lax, The Interdiction of Asylum Seekers at Sea (n 120) 5; Goodwin-Gill and McAdam (n 31) 276–7.
[141] UNCLOS (n 32) art 293(1).
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