2 Flag State Jurisdiction and Migrant Smuggling
Operations on the High Seas
The United Nations Convention on the Law of the Sea
2 (hereinafter UNCLOS) does
not contain any legal provision that was originally intended to prevent irregular
migration on the high seas. As some scholars pointed out, the only mention that
might be relevant in this field is the reference made to the ‘slave trade’ (Art.
110, para. 1, lett. b) which could be assimilated to human trafficking.
3 However,
in order to specifically address and properly regulate the migrant smuggling phenomenon, the United Nations adopted the Protocol against the Smuggling of
Migrants by Land, Sea and Air (hereinafter Smuggling Protocol) that was annexed
to the Convention against Transnational Organised Crime (UNTOC) adopted in
Palermo in 2000.
4 However, during maritime surveillance operations against
migrant smuggling by sea, along with other international law instruments, border
police officers regularly apply the UNCLOS provisions to exercise their enforcement
powers on the high seas.
In particular, two articles that are often used to exercise coastal State’s jurisdiction
on the high seas are the ‘right of visit’ (Article 110) and the ‘right of hot pursuit’
(Article 111). Regarding the ‘right of visit’, a warship has the right to board a foreign
ship on the high seas only if there is reasonable ground for suspecting that the foreign
ship is engaged in piracy, slave trade, unauthorised broadcasting or in case the ship is
without nationality.
5 This latter case is particularly relevant for anti-smuggling
operations on the high seas because migrant boats are usually flagless or use flags
of convenience that smugglers change during the course of their journey across the
Mediterranean.
Since the Article 92 of the UNCLOS expressly forbids that a ship may change its
flag during its voyage, except under the circumstance of a real transfer of ownership
or change of registry, a ship that sails under the flags of two or more States, using
them according to convenience, it may be assimilated to a ship without nationality.
6
On the contrary, when a ship is legitimately flying a foreign flag on the high seas, its
flag represents a genuine link with the State and thus such a ship shall be subject to
the exclusive jurisdiction of that State, save in exceptional cases expressly provided
for in international conventions or bilateral and multilateral treaties.
7
In this regard, the Article 8 of the Smuggling Protocol establishes the measures
that can be taken against the phenomenon of the smuggling of migrants on the high
2 United Nations Convention on the Law of the Sea, with Index and Final Act of the Third United
Nations Conference on the Law of the Sea, 1983.
3 Papanicolopulu (2016).
4 Protocol against the Smuggling of Migrants by Land, Sea and Air, Annex III of the United Nations
Convention against Transnational Organised Crime, Palermo, 2000.
5 See Art. 110 (Right of visit), UNCLOS.
6 See Art. 92 (Status of ships), UNCLOS.
7 See Art. 87 (Freedom of the high seas), UNCLOS.
13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and. . . 223
Operations on the High Seas
The United Nations Convention on the Law of the Sea
2 (hereinafter UNCLOS) does
not contain any legal provision that was originally intended to prevent irregular
migration on the high seas. As some scholars pointed out, the only mention that
might be relevant in this field is the reference made to the ‘slave trade’ (Art.
110, para. 1, lett. b) which could be assimilated to human trafficking.
3 However,
in order to specifically address and properly regulate the migrant smuggling phenomenon, the United Nations adopted the Protocol against the Smuggling of
Migrants by Land, Sea and Air (hereinafter Smuggling Protocol) that was annexed
to the Convention against Transnational Organised Crime (UNTOC) adopted in
Palermo in 2000.
4 However, during maritime surveillance operations against
migrant smuggling by sea, along with other international law instruments, border
police officers regularly apply the UNCLOS provisions to exercise their enforcement
powers on the high seas.
In particular, two articles that are often used to exercise coastal State’s jurisdiction
on the high seas are the ‘right of visit’ (Article 110) and the ‘right of hot pursuit’
(Article 111). Regarding the ‘right of visit’, a warship has the right to board a foreign
ship on the high seas only if there is reasonable ground for suspecting that the foreign
ship is engaged in piracy, slave trade, unauthorised broadcasting or in case the ship is
without nationality.
5 This latter case is particularly relevant for anti-smuggling
operations on the high seas because migrant boats are usually flagless or use flags
of convenience that smugglers change during the course of their journey across the
Mediterranean.
Since the Article 92 of the UNCLOS expressly forbids that a ship may change its
flag during its voyage, except under the circumstance of a real transfer of ownership
or change of registry, a ship that sails under the flags of two or more States, using
them according to convenience, it may be assimilated to a ship without nationality.
6
On the contrary, when a ship is legitimately flying a foreign flag on the high seas, its
flag represents a genuine link with the State and thus such a ship shall be subject to
the exclusive jurisdiction of that State, save in exceptional cases expressly provided
for in international conventions or bilateral and multilateral treaties.
7
In this regard, the Article 8 of the Smuggling Protocol establishes the measures
that can be taken against the phenomenon of the smuggling of migrants on the high
2 United Nations Convention on the Law of the Sea, with Index and Final Act of the Third United
Nations Conference on the Law of the Sea, 1983.
3 Papanicolopulu (2016).
4 Protocol against the Smuggling of Migrants by Land, Sea and Air, Annex III of the United Nations
Convention against Transnational Organised Crime, Palermo, 2000.
5 See Art. 110 (Right of visit), UNCLOS.
6 See Art. 92 (Status of ships), UNCLOS.
7 See Art. 87 (Freedom of the high seas), UNCLOS.
13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and. . . 223