Migrant smuggling by sea : combating a current threat to maritime security through the creation of a cooperative framework

Abstract

A number of rules of the international law governing the oceans were formulated at a time which is far removed from the challenges of the present day. Furthermore, the type of crimes threatening maritime security today do not necessarily find recognition and regulation in the 1982 United Nations Convention on the Law of the Sea; migrant smuggling by sea is an archetypical example of this. The Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the Convention against Transnational Organized Crime (2000) has sought to fill this lacuna by providing for a framework which, while premised on flag State exclusivity over vessels on the high seas, attempts to create a cooperative regime within these parameters. Other bilateral and regional treaties have also chartered this course, providing for coastal States to permit entry by vessels of other State Parties into their territorial sea, all in an effort to effectively curb current threats to maritime security. Migrant smuggling by sea has been selected for analysis owing to the fact that it admits of action, by different State actors, in each maritime zone. More significant perhaps, is the interplay of different considerations which surround the crime which incorporates a host of human rights and humanitarian principles, not least, the principle of non refoulement, recognised as forming part of customary international law. Furthermore, the law of rescuing persons in distress at sea must also be considered due to the poor conditions of travel of such migrants. The thesis will attempt to analyze the current international legal framework governing such crime, together with State practice in this regard, with the objective of examining whether this threat can be effectively addressed within the existing framework of the international law of the sea.