The cooperative mechanism established by the Migrant Smuggling Protocol to the UN Convention against Transnational Organized Crime

Abstract

All threats to maritime security share the transnational link. In such a scenario, States endeavour to resort to extraterritorial principles of jurisdiction to protect their interests abroad. Nevertheless, the international community is hampered by the basic principle governing the exercise of enforcement jurisdiction – itself a facet of the sovereign equality of States – in that it is generally limited to the territory of the State exercising jurisdiction. On the oceans, a further, albeit related, constraint exists in the form of flag State exclusivity on the high seas, with Article 92(1) of the United Nations Convention on the Law of the Sea 1982 (LOSC) dictating that ‘ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas’. This leads to a consideration of the extent to which, and the conditions under which a State is empowered to act in the face of contemporary maritime threats. Indeed, the legal regime set up by the LOSC does not adequately cater for recent threats which currently plague coastal States for the simple reason that ‘[t]he framers of the Convention never envisaged many of the crimes that exist today, and as a result either included only a general provision or none at all regarding their suppression. Maritime migrant smuggling is one example of this phenomenon: a multifaceted component of organized crime and one of the fastest-growing transnational crimes today. Yet, despite its innate connection to maritime affairs, migrant smuggling by sea does not find mention in the LOSC, which itself is regarded as the Constitution of the oceans. Nevertheless, the jurisdictional powers of States within the various maritime zones do continue to apply insofar as options available for the repression of this crime. It would however be a gross underestimation of the relevant regulatory regime were one to stop at the jurisdictional powers available under the LOSC. The fundamental nature of the crime of migrant smuggling necessitates a consideration of other aspects of the international legal regime such as rescue at sea (itself an obligation found in the LOSC and elaborated upon in the International Convention on Search and Rescue (SAR) and the International Convention on the Safety of Life at Sea (SOLAS), refugee law and humanitarian principles of protection, mainly, in this regard, the obligation of non-refoulement. In this respect, the Protocol on the Smuggling of Migrants by Land, Sea and Air (Migrant Smuggling Protocol) is to be applauded as an instrument which, in providing for the repression of the crime, recognizes the necessity of considering both issues of border control and humanitarian principles of protection. It also presents a regime which works within the recognized system provided by the LOSC – creating an enforcement system which rather than challenging the general principles of the law of the sea, operates within the current legal parameters.