What are the most significant challenges concerning migration and the law of the sea?
This weeks reading discusses one of the most pressing challenges in global politics today: Migration. The extent of forced migration is growing exponentially . After viewing the lecture by Professor Godwin-Gill and reading the chapter in the e-book, what in your opinion is the biggest challenge when it comes to this crisis? Focus on the problems with the existing legal positions on the issue on both the international level and the U.S internal policies and laws.
In the years from 2015 to 2016, over 8,000 men, women and children went to their death while trying to cross the Mediterranean Sea to Europe. In addition, 65.3 million people globally were displaced at the end of 2015, making the refugee crisis one of the largest in recorded history. In the global arena, this crisis became a political priority. This is a very important part of International Humanitarian law which is field of international law governed through treaties, conventions, and customary rules, that aim to regulate armed conflicts. The treatment of refugees evolved from this field, mainly after the Second World War and led to the creation of the United Nations Treaty for the Protection of Refugees in 1951.
Article one of the
1951 UN Convention relating to the status of refugees (Geneva Convention) and the 1967 Protocol relating to the status of refugees
states that a refugee is someone that: “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.
The treaty failed to create clear criteria for acceptance of refugees. There is still no clear theory to govern the international management of the refugee crisis and the best way to divide the responsibility to care for refugees among the countries of the world.
In the context of maritime law certain treaties have a bearing on this issue in light of the number of refugees traveling via the sea. In the 1988 treaty titled: International Convention for the Safety of Life at Sea (SOLAS), the convention created guidelines for states to regulate the safety of passengers and cargo of ships carrying their flags. Beyond that, the U.N treaty for the protection of refugees, mandates that states to which the refugees come, need to evaluate their refugee status claim. This has a direct effect on the procedures that coast guard units need to develop to manage the new influx of refugees coming from the sea.
While no government has a duty to give asylum, they have the duty to consider the asylum request. As such in cases of maritime migration, the country that accepts the migrants in its territorial waters needs to get them to shore and allow them to make their claim and bring proof. Even if the ship is in international waters, it can not be turned back to the original port since Article 33 clearly states that: ‘No Contracting State shall expel or return (‘refouler‘) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion’.
The question of migration is continuing to change as the scope of the phenomena grows and it is an essential part of the training of anyone involved in Maritime security.
The
SOLAS Convention
Adoption: 1 November 1974; Entry into force: 25 May 1980
The SOLAS Convention in its successive forms is generally regarded as the most important of all international treaties concerning the safety of merchant ships. The first version was adopted in 1914, in response to the Titanic disaster, the second in 1929, the third in 1948, and the fourth in 1960. The 1974 version includes the tacit acceptance procedure – which provides that an amendment shall enter into force on a specified date unless, before that date, objections to the amendment are received from an agreed number of Parties.
As a result the 1974 Convention has been updated and amended on numerous occasions. The Convention in force today is sometimes referred to as SOLAS, 1974, as amended.
Technical provisions
The main objective of the SOLAS Convention is to specify minimum standards for the construction, equipment and operation of ships, compatible with their safety. Flag States are responsible for ensuring that ships under their flag comply with its requirements, and a number of certificates are prescribed in the Convention as proof that this has been done. Control provisions also allow Contracting Governments to inspect ships of other Contracting States if there are clear grounds for believing that the ship and its equipment do not substantially comply with the requirements of the Convention – this procedure is known as port State control. The current SOLAS Convention includes Articles setting out general obligations, amendment procedure and so on, followed by an Annex divided into 12 Chapters.
Chapter I – General Provisions
Includes regulations concerning the survey of the various types of ships and the issuing of documents signifying that the ship meets the requirements of the Convention. The Chapter also includes provisions for the control of ships in ports of other Contracting Governments.
Chapter II-1 – Construction – Subdivision and stability, machinery and electrical installations
The subdivision of passenger ships into watertight compartments must be such that after assumed damage to the ship’s hull the vessel will remain afloat and stable. Requirements for watertight integrity and bilge pumping arrangements for passenger ships are also laid down as well as stability requirements for both passenger and cargo ships.
The degree of subdivision – measured by the maximum permissible distance between two adjacent bulkheads – varies with ship’s length and the service in which it is engaged. The highest degree of subdivision applies to passenger ships.
Requirements covering machinery and electrical installations are designed to ensure that services which are essential for the safety of the ship, passengers and crew are maintained under various emergency conditions.
“Goal-based standards” for oil tankers and bulk carriers were adopted in 2010, requiring new ships to be designed and constructed for a specified design life and to be safe and environmentally friendly, in intact and specified damage conditions, throughout their life. Under the regulation, ships should have adequate strength, integrity and stability to minimize the risk of loss of the ship or pollution to the marine environment due to structural failure, including collapse, resulting in flooding or loss of watertight integrity.
Chapter II-2 – Fire protection, fire detection and fire extinction
Includes detailed fire safety provisions for all ships and specific measures for passenger ships, cargo ships and tankers.
They include the following principles: division of the ship into main and vertical zones by thermal and structural boundaries; separation of accommodation spaces from the remainder of the ship by thermal and structural boundaries; restricted use of combustible materials; detection of any fire in the zone of origin; containment and extinction of any fire in the space of origin; protection of the means of escape or of access for fire-fighting purposes; ready availability of fire-extinguishing appliances; minimization of the possibility of ignition of flammable cargo vapour.
Chapter III – Life-saving appliances and arrangements
The Chapter includes requirements for life-saving appliances and arrangements, including requirements for life boats, rescue boats and life jackets according to type of ship. The International Life-Saving Appliance (LSA) Code gives specific technical requirements for LSAs and is mandatory under Regulation 34, which states that all life-saving appliances and arrangements shall comply with the applicable requirements of the LSA Code.
Chapter IV – Radiocommunications
The Chapter incorporates the Global Maritime Distress and Safety System (GMDSS). All passenger ships and all cargo ships of 300 gross tonnage and upwards on international voyages are required to carry equipment designed to improve the chances of rescue following an accident, including satellite emergency position indicating radio beacons (EPIRBs) and search and rescue transponders (SARTs) for the location of the ship or survival craft.
Regulations in Chapter IV cover undertakings by contracting governments to provide radio communication services as well as ship requirements for carriage of radiocommunications equipment. The Chapter is closely linked to the Radio Regulations of the International Telecommunication Union.
Chapter V – Safety of navigation
Chapter V identifies certain navigation safety services which should be provided by Contracting Governments and sets forth provisions of an operational nature applicable in general to all ships on all voyages. This is in contrast to the Convention as a whole, which only applies to certain classes of ship engaged on international voyages.
The subjects covered include the maintenance of meteorological services for ships; the ice patrol service; routing of ships; and the maintenance of search and rescue services.
This Chapter also includes a general obligation for masters to proceed to the assistance of those in distress and for Contracting Governments to ensure that all ships shall be sufficiently and efficiently manned from a safety point of view.
The chapter makes mandatory the carriage of voyage data recorders (VDRs) and automatic ship identification systems (AIS).
Chapter VI – Carriage of Cargoes
The Chapter covers all types of cargo (except liquids and gases in bulk) “which, owing to their particular hazards to ships or persons on board, may require special precautions”. The regulations include requirements for stowage and securing of cargo or cargo units (such as containers). The Chapter requires cargo ships carrying grain to comply with the International Grain Code.
Chapter VII – Carriage of dangerous goods
The regulations are contained in three parts:
Part A – Carriage of dangerous goods in packaged form – includes provisions for the classification, packing, marking, labelling and placarding, documentation and stowage of dangerous goods. Contracting Governments are required to issue instructions at the national level and the Chapter makes mandatory the International Maritime Dangerous Goods (IMDG) Code, developed by IMO, which is constantly updated to accommodate new dangerous goods and to supplement or revise existing provisions.
Part A-1 – Carriage of dangerous goods in solid form in bulk – covers the documentation, stowage and segregation requirements for these goods and requires reporting of incidents involving such goods.
Part B covers Construction and equipment of ships carrying dangerous liquid chemicals in bulk and requires chemical tankers to comply with the International Bulk Chemical Code (IBC Code).
Part C covers Construction and equipment of ships carrying liquefied gases in bulk and gas carriers to comply with the requirements of the International Gas Carrier Code (IGC Code).
Part D includes special requirements for the carriage of packaged irradiated nuclear fuel, plutonium and high-level radioactive wastes on board ships and requires ships carrying such products to comply with the International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships (INF Code).
The chapter requires carriage of dangerous goods to be in compliance with the relevant provisions of the International Maritime Dangerous Goods Code (IMDG Code).
Chapter VIII – Nuclear ships
Gives basic requirements for nuclear-powered ships and is particularly concerned with radiation hazards. It refers to detailed and comprehensive Code of Safety for Nuclear Merchant Ships which was adopted by the IMO Assembly in 1981.
Chapter IX – Management for the Safe Operation of Ships
The Chapter makes mandatory the International Safety Management (ISM) Code, which requires a safety management system to be established by the shipowner or any person who has assumed responsibility for the ship (the “Company”).
Chapter X – Safety measures for high-speed craft
The Chapter makes mandatory the International Code of Safety for High-Speed Craft (HSC Code).
Chapter XI-1 – Special measures to enhance maritime safety
The Chapter clarifies requirements relating to authorization of recognized organizations (responsible for carrying out surveys and inspections on Administrations’ behalves); enhanced surveys; ship identification number scheme; and port State control on operational requirements.
Chapter XI-2 – Special measures to enhance maritime security
Regulation XI-2/3 of the chapter enshrines the International Ship and Port Facilities Security Code (ISPS Code). Part A of the Code is mandatory and part B contains guidance as to how best to comply with the mandatory requirements. Regulation XI-2/8 confirms the role of the Master in exercising his professional judgment over decisions necessary to maintain the security of the ship. It says he shall not be constrained by the Company, the charterer or any other person in this respect.
Regulation XI-2/5 requires all ships to be provided with a ship security alert system. Regulation XI-2/6 covers requirements for port facilities, providing among other things for Contracting Governments to ensure that port facility security assessments are carried out and that port facility security plans are developed, implemented and reviewed in accordance with the ISPS Code. Other regulations in this chapter cover the provision of information to IMO, the control of ships in port, (including measures such as the delay, detention, restriction of operations including movement within the port, or expulsion of a ship from port), and the specific responsibility of Companies.
Chapter XII – Additional safety measures for bulk carriers
The Chapter includes structural requirements for bulk carriers over 150 meters in length.
Amendments
The 1974 Convention has been amended many times to keep it up to date.
Amendments adopted by the Maritime Safety Committee (MSC) are listed in MSC Resolutions.
Convention
for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention)
Adopted: 10 March 1988.
Entered into Force: 1 March 1992.
Duration: The Convention does not set any limits on its duration.
Number of Parties: 156
Signatories that have not ratified: 0
Depository: International Maritime Organization (IMO)
2005 Protocol to SUA Convention: Opened for signature: 14 October 2005
Contracting States: 11
Signatories that have not ratified: 10
Treaty/Protocol Text
Background: Concern about unlawful acts that threaten the safety of ships and the security of their passengers and crews grew during the 1980s, which motivated states to negotiate and subsequently adopt this convention. This concern stemmed from reports of crews being kidnapped, ships being hijacked, deliberately run aground, or blown up by explosives. Due to these developments, especially the 1985 hijacking of the Achille Lauro, the UN General Assembly adopted Resolution 40/61 in 1985, urging States to cooperate in contributing to the elimination of causes underlying terrorism and invited the IMO to study the problem of terrorism aboard or against ships with a view to making recommendations on appropriate measures. In response to the Achille Lauro hijacking, the Governments of Austria, Egypt, and Italy made a propos-al in November 1986 that the IMO prepare a convention on the subject of unlawful acts against the safety of maritime navigation.
To supplement their efforts, the Maritime Safety Committee of the IMO issued a circular (MSC/Circ.443) on measures to prevent unlawful acts against passengers and crews on board ships. According to the circular, governments, port authorities, administrators, ship-owners, shipmasters, and crews should take appropriate measures to prevent unlawful acts that may threaten passengers and crews. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation was adopted in Rome in 1988
Provisions: The Convention defines “ship” as any type of vessel whatsoever that is not permanently attached to the sea-bed, including dynamically sup-ported craft, submersibles, or other floating craft. Warships, ships owned or operated by a State when being used as a naval auxiliary or for customs or police purposes, or ships that have been withdrawn from navigation or laid up are not included under the auspices of the Convention. According to the provisions of the Convention, any person commits an offense if that person unlawfully and intentionally commits, attempts to commit, threatens to commit, or abets the seizure or exercise of control over a ship by force or threat of force or any form of intimidation; or commits any of the following acts if it endangers or is likely to endanger the safe navigation of that ship: an act of violence against a person on board; destroying a ship or damaging a ship or its cargo; placing or causing to be placed on a ship a device or substance likely to destroy the ship or cause damage to the ship or its cargo; destroying or seriously damaging maritime navigational facilities or seriously interfering with their operation; or communicating information he knows to be false. It is also an offense to injure or kill any person in connection with the commission or attempted commission of any of the previous offenses. The Convention applies if the ship is navigating or is scheduled to navigate into, through, or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States. In all other cases, the Convention also applies when the offender or alleged offender is found in the territory of a State Party other than the State in whose waters the offense occurred.
States Parties are required to make the offenses punishable by appropriate penalties that take into account the grave nature of those offenses. Measures to establish jurisdiction over the offenses shall be taken when the offense is committed against or on board a ship flying the flag of the State at the time the offense is committed; in the territory of that State, including its territorial sea; by a national of that State; by a stateless person whose habitual residence is in that State; in an attempt to compel that State to do or abstain from doing any act; or when a national of that State is seized, threatened, injured, or killed during the commission of the offense.
Compliance and Enforcement: Once jurisdiction has been established, States shall take the offender into custody and immediately make a preliminary inquiry into the facts. States Parties are required to either extradite the offender in custody or submit the case for prosecution. States Parties are also required to assist each other in connection with criminal proceedings brought under the Convention. States Parties are also to cooperate in the prevention of offenses by taking all practicable measures to prevent preparations in their respective territories for the commission of those offenses within or outside their territories and by exchanging information in accordance with their national laws.
Reservations and Withdrawal: Under Article 16 paragraph 1, disputes between two or more States concerning the interpretation or application of the Convention will be submitted to arbitration at the request of one of the States if the matter cannot be settled through negotiation. However, at the time of signing, ratification, or accession, a State may make a reservation that it does not consider itself bound by this paragraph, in which case other States Parties shall not be bound to it with respect to any States Party that has made such a declaration. Under Article 19, the Convention may be denounced by any State Party at any time after the expiry of one year from the date on which the Convention enters into force for that State. Denunciation shall be made by the deposit of an instrument of denunciation with the Secretary-General and will take effect one year, or such a longer period as may be specified in the instrument of denunciation, after the instrument is received by the Secretary-General.
Amendments: A conference for the purpose of revising or amending this Convention may be convened by the IMO. The Secretary-General shall convene such a conference of the States Parties to this Convention at the request of one-third of the States Par-ties, or 10 States Parties, whichever is the higher figure. Furthermore, any instrument of ratification, acceptance, approval, or accession deposited after the entry into force of an amendment will apply to the Convention as amended.
2005 Protocol to the SUA Convention: The 2005 SUA Protocol adds Article 3 which criminalizes the intentional transport of any material, equipment, or software that is intended to be used to produce a biological, chemical, or nuclear (BCN) weapon. This does not include nuclear material under IAEA safe-guards, which is presumed to be for peaceful purposes. The 2005 SUA Protocol also criminalizes the trans-port of a person on board a ship knowing that he committed an offense under the SUA Convention or one of the other UN Counter-Terrorism Conventions. It also requires that States take necessary measures to enable companies, organizations, and similar entities to be held liable when a key manager commits an offense under the Convention. The new Protocol also modifies the SUA Convention’s boarding protocol by establishing additional guidelines for cooperation and procedures to be followed if a State Party desires to board a ship flying the flag of another State Party due to suspicion that the ship or a person on board the ship is, has been, or is about to be involved in, the commission of an offense under the Convention. Once alerted of intention to board a ship, the State Party of the flag the ship is flying has four hours to either deny or approve the boarding. If no response is received within four hours, the requesting State is allowed to board and inspect the vessel. The 2005 SUA Protocol text establishes that the agreement shall enter into force ninety days following the date on which twelve States have either signed it without reservation as to ratification, acceptance or approval, or have deposited an instrument of ratification, acceptance or approval, or have deposited an instrument of ratification. The 2005 Protocol to the 1988 SUA Protocol applies the same changes as above but in application to fixed platforms as opposed to moving vessels.
Developments:
2010: On 9 March, the Dominican Republic acceded to the 2005 SUA Protocol. At this point, only one additional contracting state or signature without reservation is needed for the Protocol to enter into force.
2009: In 2009, Latvia and Liechtenstein became contracting states to the 2005 SUA Protocol. The Inter-national Civil Aviation Organization began the process of drafting an analogous protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.
2007: 18 States signed the 2005 Protocol to the SUA Convention.
2006: The 2005 Protocols opened for signature on February 13, 2006 and will enter into force 90 days after the twelfth country (three countries in the case of the Fixed Platforms Protocol) deposits an instrument of ratification or acceptance. The United States signed the protocols on 17 February 2006.
2005: The Diplomatic Conference on the Revision of the SUA Treaties, held in London from 10-14 October 2005, adopted new Protocols to the convention following three years of intensive negotiations. They are the 2005 Protocol to the SUA Convention and the 2005 Protocol to the 1988 SUA Protocol (the 1988 Protocol was related to fixed platforms). The new Protocols provide the first international legal frame-work criminalizing the use of a nonmilitary ship as a weapon or as a means to carry out a terrorist attack, and the transport of terrorists or cargo destined for use in a BCN weapon by ship.
2004: During its 88th session, held from 19 to 23 of April, the IMO Legal Committee continued revising the SUA Convention, taking into consideration other conventions and protocols related to terrorism. Most delegations expressed support for the revision and strengthening of the SUA Convention in order to provide a response to the increasing risks posed to maritime navigation by terrorism. Nevertheless, several delegations drew attention to the need to ensure that the prospective SUA Protocols did not jeopardize the principle of freedom of navigation and the right of innocent passage as prescribed in UNCLOS nor the basic principles of international law and the operation of international commercial shipping. The 89th session will be held from 25 to 29 October. The revision of the SUA Convention remains a central issue in the agenda. The objective is to have a draft text ready for consideration by a diplomatic conference in 2005.
2003: During its 86th and 87th sessions, the IMO Legal Committee continued to work on proposed amendments to the SUA Convention and its Protocol. The amendments would significantly broaden the range of offenses included in the convention to adapt it to emerging threats.
2002: During its 85th session the IMO Legal Committee held a preliminary exchange of views regarding the text of draft proposed amendments to the 1988 Convention. Four of these new offenses concerned terrorist activities taking place on the ship or directed toward the ship. One of the new offenses concerned the presence of tools or substances not usually used on a ship but useful in a weapon of mass destruction. Two of the new offenses concerned use of the ship for transport of substances to be used for mass destruction. Delegations expressed the need to carefully consider the proposals and to consider whether there was overlap with existing terrorism conventions. It was recognized that even with an expanded focus, SUA would remain a maritime convention under the competency of IMO, and it was important to ensure that the shipping industry does not become a soft target for terrorist activities.
2001: In November, the IMO Assembly adopted resolution A.924(22) calling for a review of measures and procedures to prevent acts of terrorism that threaten the security of passengers and crews and the safety of ships. The IMO Legal Committee (which consists of all member states of IMO) is in charge of the revision of the SUA Convention and its Protocol.