It is true that the problem of interception of human beings on the high seas is more acute than ever, not only in terms of the number of vessels intercepted but also in terms of the variety of legal issues that it raises. The most worrisome observation, however, is that while interception of human beings has been practiced for centuries, currently the pendulum has swung from interception to free and save lives, for example, in the context of chattel slavery, to interception to prevent people from entering developed States and claiming a better future. This is particularly reflected in the practice of EU Member States, which have taken many initiatives in the maritime domain to strengthen the external borders of 'fortress' Europe. Lately, this practice is coordinated by a European Agency, commonly referred to as FRONTEX, which was established in 2004 in order to "coordinate the operational cooperation between Member States in the field of external borders management". To this end, FRONTEX has launched a number of maritime interdiction operations carried out on the high seas and even further, i.e. in the territorial seas of States of departure or transit, such as Mauritania, Senegal, Cape Verde. The purpose of this article is to address the most important questions that these maritime operations of FRONTEX raise, analysing them through the lens of the law of the sea and other rules of corpus juris gentium. Accordingly, in the first part there will be a thorough discussion of the pertinent legal bases of the interception operations on the high seas and in the territorial waters, while in the second the analysis will focus more on the relevance of other international rules like the use of force or the principle of non-refoulement to the present context. The application of the latter principle appears to be especially problematic in the majority of these operations since it is very likely that the persons onboard the intercepted vessels would be forced to return to their countries of origin, where they may be subjected to torture or inhuman or degrading treatment.
In all the applications before the ECtHR concerning migration at sea, a preliminary, yet seminal, question is whether the applicants were within the jurisdiction of the respondent State, in terms of Article 1 of the European Convention on Human Rights (ECHR). This question becomes even more apposite in contemporary situations of remote interception or search and rescue operations. In addressing the matter of jurisdiction in such cases, the law of the sea becomes of significant importance. This Article argues that as the International Tribunal of the Law of the Sea (ITLOS) has often taken into account human rights considerations, similarly, the European Court of Human Rights should read into the term “jurisdiction” under Article 1 of ECHR law of the sea considerations. Far from resurrecting Banković and the strict “general international law” notion of jurisdiction under ECHR, this Article only intends to shed some light on when a State would be considered as exercising such “authority and control over persons” in the maritime domain. In so doing, this Article will focus only on the potential application of the ECHR to the most common practices of States vis-à-vis migration on the high seas, namely interception and rescue operations.
AbstractThis article discusses the current negotiations for an Implementing Agreement under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. It discusses, in particular, the issue of the relationship of the new agreement with existing and future relevant regional instruments and bodies and the need for cooperation and coordination amongst them, the guiding principles of the new agreement, and the question of implementation and enforcement of the new agreement. These issues and the choices that delegations will make respectively highlight the controversy on the underpinning tenet of the agreement, ie between the ‘freedom of the high seas’ and the common heritage of mankind. The article concludes with a pessimistic prognosis that, in general, the agreement will fall short of the expectations that many States and international community have had at the early days of the negotiation.
Although there is no fishing activity within the central Arctic Ocean at present, commercial fishing activity does occur in the high seas areas of the North Atlantic and North Pacific, and within the exclusive economic zone of the Arctic coastal States. Climate change will most probably lead to an increase in fishing activity, through the reduction in sea ice, opening up new areas of the Arctic to fisheries, including the Central Arctic Ocean. This prospect has fuelled intensive negotiations -still ongoing -for the signing of a legally binding agreement to prevent unregulated fisheries therein. What seems missing, though, from both the ongoing negotiations on this agreement and the scholarly literature is reference to fisheries enforcement in the Arctic. Accordingly, this article identifies the most effective tools that could be employed for fisheries enforcement purposes, including port and flag State measures, and addresses their potential application in the Arctic.
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