Citation: 23 Int'l J. Refugee L. 174 2011

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!nwraadonalJournuj of Rf bgee Law VoL 23 No. 2 pp. 174-2200 The Author (201 I) Published by Oxford University P- AD rigts reved.For Fhrmisions please enafliounL&sen oq2cedoiL!0.093/ijd/eer005, Advance Accs pubihd on Mluhds 31,2011

Seeking Asylum in the Mediterranean:Against a Fragmentary Reading of EUMember States' Obligations Accruing at Sea

VIOLETA MORENO-LAX*

AbstractAlthough both international and EU law impose a number of obligations on the EUMember States with regard to persons in distress at sea, their effective implementationis limited by the manner in which they are being interpreted. The fact that the personsconcerned are migrants, who may seek asylum upon rescue, has given rise to frequentdisputes and to episodes of non-compliance. Frontex missions and the Italian 2009push-back campaign illustrate the issue. With the objective of clarifying the scope ofcommon obligations and to establish minimum operational arrangements for jointmaritime operations, the EU has adopted a set of common guidelines for the surveil-lance of the external maritime borders. On the basis of the principle of systemic inter-pretation, this article intends to contribute to the clarification of the main obligationsin international and European law binding upon the EU Member States when theyoperate at sea.

1. IntroductionAlthough both international and European law impose a number ofobligations on the EU Member States regarding persons in distress at sea,their effective implementation is limited by the manner in which they arebeing construed. Recent events in the Mediterranean demonstrate theuneasiness with which EU Member States deal with boat migration.Urgency to reduce irregular movement has given rise to episodes of non-rescue, frequent disputes over responsibilit , and diversion of ships toports in third countries. The possibility that rescuees may seek asylumappears to constitute the main disincentive to compliance. The Italian

* PhD Candidate at the Univwsil calkoiiqw do Louvain; and, Visiting Fellow 2010-1l at theRefugee Studies Centre, University of Oxford. This is a revised and updated version of the paperpresented at the 12th IASFM Conference held in Nicosia, 28June-2July 2009. The author wouldlike to thank Prof. E. Guild, Prof.J. Vedsted-Hansen and L. Tsourdi for their useful comments onprevious drafts, and is particularly indebted to Prof. G. S. Goodwin-Gill for his decisive supportand encouragement to publish this article. Financial support was provided by Fudacidn CjaMadrid. [This article was written and sent for typesetting before the various uprisings in NorthAfrica- Editor, 4 March 2011]

Against a Fmgmminty Readng of EU Obaions Acauig at Sea 175

push-backs to Libya since May 2009,' a country with a doubtful humanrights record and a non-Party to the 1951 Refugee Convention,2 are anexample. The joint operations carried out under the aegis of Frontex 3

further illustrate the point. The problem is arguably compounded by thefact that the law of the sea neither establishes precisely where rescueesare to be disembarked, nor does it clearly allocate responsibility in theirregard.4 According to the Maritime Conventions, as expounded below, itis for the shipmaster and the states partaking in the rescue operation todetermine the appropriate 'place of safety', taking the relevant circum-stances into account.

In the EU, the absence of a system that determines a default port ofdisembarkation, be it the geographically closest to the emergency, thenext port of call, or that of intended destination, is perceived as an im-portant lacuna.5 In 2007, an informal group, gathering experts fromthe EU Member States, Frontex, UNHCR, and IOM, was commis-sioned to draft minimum guidelines for joint maritime operations, but

I UNHCR Press Releases: 'UNHCR deeply concerned over returns from Italy to Libya', 7 May2009, available at: <http://wwwunhcrorg/4a2d4546.htnl>; 'Follow-up from UNHCR on Italy'spush-backs', 12 May 2009, retrievable from: <http://wwwunhcr.org/4a0966936.html>; 'UNHCRinterviews asylum seekers pushed back to Libya', 14July 2009, retrievable from: <http://www.unhcr.org/4a5c638b6.html>. Also, BBC News, 'Libya given migrant patrol boats', 15 May 2009, retrievablefrom: <http://news.bbc.co.uk/2/hi/europe/8051557.stm>; Human Rights Watch, 'Pushed Back,Pushed Around - Italy's Forced Return of Boat Migrants and Asylum Seekers, Libya's Mistreatmentof Migrants and Asylum Seekers', Sept. 2009, retrievable from: <http://wwwhrworg/en/node/85585>;Jesuit Refugee Service Malta, 'Do They Know? Asylum Seekers Testify to Life in Libya', Dec.2009, available at: <http://wwwjr.net/news/index.phplang-en&sid=5 137>; 'Report to the ItalianGovernment on the visit to Italy carried out by the European Committee for the Prevention of Tortureand Inhuman or Degrading Treatment or Punishment (CPT) from 27 to 31 July 2009', 28 Apr. 2010,available at: <http://www.cpt.coe.int/documents/ita/2010-inf-14-enpdf>. Note, in addition, thatLibya closed the local UNHCR office inJune 2010, leaving the 9,000 refugees and 4,000 asylum seek-ers registered with it without protection, see, UNHCR, 1.NHCR says ordered to dose office in Libya',8June 2010, available at: <http://wwwunhcr.org/4ce79059.html>.

Convention relating to the Status of Refugees, 189 UNTS 150 (Refugee Convention or CSR).3 Council Regulation (EC) No 2007/2004 of 26 Oct. 2004 establishing the European Agency for

the Management of Operational Cooperation at the External Borden of the Member States of theEuropean Union, (2004] OJ L 349/1 (Frontex Regulation), as amended by Regulation (EC) No863/2007 of the European Parliament and of the Council of II July 2007, establishing a mechanismfor the creation of Rapid Border Intervention Teams and amending Council Regulation (FEC) No2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers, 2007] 0JL 199/30 (RABIT Regulation). The Commission Proposal to revise the mandate of the Agency(COM(2010) 61 final of 24 Feb. 2010) is currently being discussed at the Council. For an analysis onthe latter, see, ECRE & Amnesty International, Joint Briefing on the Commission Proposal for aRegulation amending Council Regulation (EC) 2007/2004 establishing a European Agency for theManagement of Operational Cooperation at the External Borders of the Member States of the Euro-pean Union (FRONTEX), Sept. 2010, available at: <http://www.ecreorg/rsources/Plicy-.papers/1622>.

4 J. Pugash, 'The Dilemma of the Sea Refugee: Rescue Without Refuge' (1977) 18 Harsd adner-uationalL/J577-604, at 578.

5 Study on the international law instuments in relation to illegal immigration by sea, SEC(2007)691 final, 15 May 2007.

176 Viola MMn-Lax

the participants failed to agree on such essential issues as the implica-tions of human rights and refugee law, the role of Frontex, and theprior identification of places of disembarkation for the migrants.6

Some Member States feared that clarifying obligations and solving thequestion of concrete attribution of responsibility would produce a pullfactor, encouraging migrants to come to the EU by sea.7 Nevertheless,based on those discussions, the European Commission issued a proposalfor a Council Decision supplementing the Schengen Borders Code8 asregards the joint surveillance of the external maritime borders,9 whichhas recently been adopted by the Council. 10 Allegedly, the purpose is toensure that the international rules relevant to the maritime border sur-veillance operations coordinated by Frontex are uniformly applied bythe participating Member States.II

Meanwhile, search and rescue obligations are interpreted inconsistently.The European Commission has acknowledged a persistent 'disunity withinthe EU over which obligations arise from EU fundamental rights andinternational human rights and refugee law, and how these obligationsrelate to the law of the sea'. 12 A fragmentary reading' 3 of the applicablenorms is being followed, favouring minimum compliance with maritimerules over the bonaf fulfilment of international protection obligations.Some EU Member States, as well as Frontex, unduly conflate interdiction

6 Proposal for a Council Decision supplementing the Schengen Borders Code as regards the surveil-lance of the sea external borders in the context of the operational cooperation coordinated by theEuropean Agency for the Management of Operational Cooperation at the External Borders,COM(2009) 658 final, 27 Nov. 2009, pars 1.1 (Frntex Guidelines Proposal).

7 European Union Committee of the House of Lords, FRONTEX the EU external bordersagency', 9th Report of Session 2007-8. Oral evidence by Mr Liam Byrne MP, Minister for Immigra-tion, UK Home Office, pars 115: 'The way in which we interpret burden sharing is that we do notthink we should be moving people around. We think that would create an enormous pull factor thatwould compound the problem rather than resolve it', Major Andrew Mallia, from the armed forces ofMalta, concurred, expressing similar concerns.

8 Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 Mar. 2006establishing a Community Code on the rules governing the movement of persons across borders(Schengen Borders Code), (2006] OJ L 105/1 (Schengen Borders Code or SBC).

9 Frontex Guidelines Proposal, above n. 6.10 Council Decision of 26 Apr. 2010 supplementing the Schengen Borders Code as regards

the surveillance of the sea external borders in the context of operational cooperation coordinatedby the European Agency for the Management of Operational Cooperation at the External Bor-ders of the Member States of the European Union, [2010] OJ L 111/20 (Frontex GuidelinesDecision). For commentar) see, V. Moreno-Lax, 'The EU Regime on Interdiction, Search andRescue, and Disembarkation: The Frontex Guidelines for Intervention at Sea' (2010) 25 UMCL621-35.

11 Frontex Guidelines Proposal, above n. 6, pars. 2.12 Reinforcing the Management of the European Union's Southern Maritime Borders, COM(2006)

733, 11 Nov. 2006, pars 35.13 On the problem of the fragmentation between the different areas of international law and its

negative implications, see, ILC, 'Fragmentation of International Law. Difficulties Arising from theDiversification and Expansion of International Law (Report of the Study Group of the ILC)', UNdoc. A/CN.4/L682, 13 Apr. 2006.

Against a Fyagmen(ty Reading of EU Obligations Acndng at Sea 177

with search and rescue operations, as if both measures were interchangeableand produce equivalent effects. As a result, vessels that are not in distresshave been 'rescued', whereas vessels genuinely in distress have been ignoredor diverted. 14 Yet, Frontex officials have commented favourably on theeffect of maritime interventions, stating that '[on the humanitarian level,fewer lives have been put at risk, due to fewer departures'. 15 Search andrescue obligations are understood as operating independently from otherinternational obligations arising from refugee law and human rights, theobservance of which is rendered uncertain. Often, minimal intervention isundertaken to prevent loss of life. Food, water, and fuel are provided, butwithout engaging in actual rescue so that responsibility for the migrantsconcerned is avoided. 16 However, equating the humanitarian benefits ofinterdiction to rescue is a flawed position with no legal standing in inter-national law.

When interception/rescue is performed in the territorial waters of thirdcountries with which the EU Member States and Frontex collaborate, itseems to be assumed that the responsibility for the persons recoveredbelongs by default to those other countries. International co-operation iswrongly construed as releasing EU Member States from their obligationsin relation to those intercepted in the territorial sea of the third countriesin question.17

Against this background and in light of the recently adopted EU Guide-lines for joint maritime operations, this article aims to contribute to theclarification of the content of the main obligations binding upon the EUMember States when they operate at sea, whether alone or under the aus-pices of Frontex. Section 2 introduces the Agency and the main maritimeoperations it has coordinated thus far. Sections 3 to 6 analyse the rights ofseaborne migrants and refugees in a holistic fashion, avoiding fragmentation

14 P Popham, 'Doomed to drown: the desperate last calls of the migrants no one wanted to rescue',

7he Indmdask 25 May 2007, available at: <http://wwwindependent.co.uk/news/worid/europe/doomed-to-drown-the.desperate-last-cals-of-the-migrants-no-onewantedto-rescue-45030.html>.See, by the same author, 'Europe's Shame', The kdepadet 28 May 2008, retrievable from: <http://wwwindependentco.uk/news/wodd/europe/urpes-shame-450754.htm>. For a detailed record ofsuch incidents, refer to MSC 84/20/1, 'Report-Record of Decisions on the Third United NationsInter-Agency Meeting on the Treatment of Persons Rescued at Sea', 1 Feb. 2008, Annex, para. 12,available through the IMO registry at: <http://docs.imo.org>; and ECRE, 'What Price Does aRefugee Pay to Reach Europe?', 10 Feb. 2009, available at: <http://www.ecre.org/resources/ECREacions/1313>.

15 'Immigration: Illegal Arrivals from Sea Halved in Italy', ANSAmd, 9July 2009, retrievable from:<http://wwwansamed.info/en/news/MEO3.@AM50679.html>. See also, 'Frontex feasibility studyon Mediterranean Coastal Patrols Network - MEDSEA', Council doc. 12049/06,27 July 2006, at 3:'The important issue for the network is to detect and intercept persons arriving to the Member States'territory Ow asuni Us no* of fim at s ' (emphasis added).

16 'Maroni claims Malta sent 40,000 migrants to Italy', Tmes of Ma, 21 Apr. 2009, retrievablefrom: <http://wwwtivmesofmaltacom/artides/view/2009042IAocal/moroni-caims-mata-sent-40-000-migran-to-italy>.

17 See, below, the description of maritime operation.

178 Viwleta Moreno-Lax

between the different legal systems applicable at sea. The interpretativerule applied is that inscribed in the 1969 Convention on the Law ofTreaties.18 Particular attention is drawn to the principle of systemic inte-gration enshrined in article 31 (3)(c) thereof, according to which subsequentagreements, uniform practice, and every relevant norm of internationallaw applicable between the parties to a treaty are pertinent to its interpret-ation. 19 Search and rescue obligations, interdiction powers, and the issueof disembarkation are hence discussed on account of the requirements ofhuman rights and refugee law. The principle of non-refoulment and con-comitant entitlements to procedures and judicial protection are also exam-ined, insofar as they follow from international and European law. A numberof conclusions are drawn at the end.

2. Frontex and joint operations at seaSince the abolition of internal border controls, the EU has committeditself to build up a system of 'integrated border management' for checksat the external borders of the EU Member States. The concept was firstintroduced by the European Commission20 and further echoed in subse-quent discussions. 21 Today, it constitutes a key policy objective of theUnion, inscribed in the Lisbon Treaty 22

Is 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331 (VCLT).19 ICJ, 'Namibia Advisory Opinion', [1971] ICJ Rep. 16, par. 31;Aq Sea Cadnivd& f Case,

(1978] ICJ Rep. 3, paras 32-3; Oil PAforms Cme, [2003] ICJ Rep. 1, paras. 40-1. For analys see, C.McLachlan, 'The Principle of Systemic Integration and Article 31(3Xc) of the Vienna Convention'(2005) 54 ICLQ,279-320. Within the framework of the Law of the Sea Convention, below n. 72, art.293 requires all courts and tribunals called to settle disputes related to the Convention to take accountnot only of the applicable provisions therein, but also of 'other rules of international law not incom-patible' with it. In the context of the European Convention of Human Rights, the Strasbourg Court,referring to art. 31(3)(c) VCLT, has recently recalled that 'the principles underlying the Conventioncannot be interpreted and applied in a vacuum', holding that '(t]he Convention should be interpreted asfar as possile in harmony with other principles of international law of which it forms part' in (GC]Al-Saadom andMqWd a UaW AppL No. 61498/08,2 Mar. 2010, pant. 126 (final on 4 Oct. 2010).

20 Communication from the Commission to the Council and the European Parliament: Towardsintegrated management of the external borders of the Member States of the European Union,COM(2002) 233 final, 7 May 2002.

S On the history and evolution of the concept, seeJ Monar, 'The External Shield of the Area ofFreedom, Security andjustice: Progress and Deficits of the Integrated Management of External EUBorders' inJ. W de Zwaan and E A. N.J Goodapp (els.), Fr400% wilp andjsti id EU(TheHague: T M. C. Asser Press, 2006), 73-88; S. Peers and N. Rogers, 'Border Controls' in S. Peers andN. Rogers (eds.), EU hmiyatia and AVlvn Law (Leiden/Boston: Martinus Nijhoff, 2006), 169-84;P Hobbing, 'Integrated Border Management at the EU Leve,'justice and Home Affairs CEPS WorkingDocuments, 1 Aug 2005, available at: <http://wwwceps.be/bok/integrated-border-management-eu-level>; S. Carrera, 'Towards a Common European Border Service?', CEPS Working Document No.331/June 2010, available at <http://wwwoceps.eu/book/towards<- on-eurpean-border-service>.

22 The Lisbon Treaty (entered into force 1 Dec. 2009). Thereafter, the EU and EC treaties haverespectively been replaced by the Treaty on European Union, (2010] OJ C 83/13 (EU) and the Treatyon the Functioning of the European Union, [2010] OJ C 83/47 (TFEU). On 'integrated border man-agement', see, art. 77(lXc) TFEU.

Against a Fragmuntay Reading of EU Obligations Accruing at Sea 179A full definition of the concept was only articulated in 2006, when the

Council established that it consisted of 'multiple dimensions', encompass-ing border control, crime prevention, inter-agency cooperation, andcoordination of the activities carried out in this realm by the MemberStates and the EU Three specific components were identified throughwhich the different dimensions of the strategy would be realized: a 'commoncorpus of legislation', embodied in the Schengen Borders Code; oper-ational cooperation between the Member States, including cooperationundertaken under Frontex; and solidarit, through the creation of anExternal Borders Fund.23

Reflecting the goals of the strategy, Frontex has been assigned the mis-sion of improving 'the integrated management of the external borders ofthe Member States of the Union' in order to ensure both 'a uniform andhigh level of control and surveillance' and the 'efficient implementation ofcommon rules'24 in accordance with the fundamental principles of EUlaw 25 Regulation 863/2007 has amended the Frontex instrument,26 estab-lishing the RABIT mechanism for mass influx situations at the externalborders and regulating the powers of guest officers.27 The amendmentinsists on compliance with fundamental rights, mentioning that the Regu-lation should be carried out 'in accordance with Member States' obliga-tions as regards international protection and non-rfundment' and layingspecial emphasis on the 'obligations arising under the international law ofthe sea, in particular as regards search and rescue'. 28

The Agency has been entrusted with a variety of tasks.29 It has to coord-inate operational cooperation between the Member States in relation tothe joint management of the EU external borders; assist in the training ofnational border guards; carry out risk analyses; follow up on the develop-ment of research relevant for the control and surveillance of the externalborders; assist the Member States in circumstances requiring increasedtechnical and operational assistance; provide them with the necessary

23 EU Finnish Presidency Council Conclusions of 4-5 Dec. 2006, Press Release 15801/06, at 26-7.24 Art. I and Recitals 1, 2, 4 and 21 of the Frontex Regulation, above n. 3.25 Ibid., Recital 22, referring to the Charter of Fundamental Rights of the European Union, [20 10]

OJ C 83/389 (EUCFR or EU Charter of Fundamental Rights).RAB1T Regulation, above n. 3.

27 According to art. 12(2) of the RABIT Regulation 'guest officer' means: 'the officers of borderguard services of Member States other than the host Member State participating in the joint opera-tions and pilot projects'.

2 Recitals 16-18 of the RABIn Regulation.29 For a detailed analysis see, H.Jorry, 'Construction of a European Institutional Model for Man-

aging Operational Cooperation at the EU's External Borden: Is the FRONTEX Agency a decisivestep forward?', CHALLENGE Research Paper No. 6, Mar. 2007, retrievable from: <http://hopcep&eu/BookDetail.php?itemJid= 1483>; and A. Baldaccini, 'Extraterritorial Border Controls in the EU:The Role of Frontex in Operations at Sea' in B. Ryan and V Mitsilegas (ed&), EAbukiri&WImuwrad=Co/W(The Hague: Brill, 2010), 229-56.

180 V'w/eta Mor -Lax

support in organizing joint return operations; and deploy Rapid BorderIntervention Teams in accordance with the RABIT Regulation.3 Notably,Frontex has the capacity to launch joint operations and pilot projects at therequest of the Members States or at its own initiative.3 Concrete deploy-ment follows a risk analysis developed by the Risk Analysis Unit, accordingto a common integrated risk analysis model.32 In the case Member Statesrequire support in the form of increased technical and operational assist-ance, the Agency can provide coordination between Member States ordeploy its own experts. 3 Guest officers can exercise the powers related to'border checks' in accordance with the Schengen Borders Code.34 Theirexecutive authority is subject to EU law and to the national law of theMember State hosting the operation. In particular, they must performtheir tasks under the instructions of the host Member State and, as a rule,in the presence of its border guards, who alone remain competent to refuseentry pursuant to article 13 of the Schengen Borders Code.35 To date,Frontex has carried out a number of joint missions at the external bordersof the EU Member States. The Hera and . fauils maritime operations con-stitute cases in point.

Hera has been the longest and most expensive single operation carriedout so far employing 20 per cent of the total operational budget of theAgency.3 6 It was first launched at the request of Spain on 17 July 2006 toassist its authorities in the management of irregular arrivals in the CanaryIslands.37 The operation has been deployed in several phases, involvingdifferent EU Member States each time.38 The objective is to prevent illegalimmigration by sea and to identify traffickers and smugglers, while

30 Art. 2 of the Frontex Regulation, as amended by art. 12 of the RABIT Regulation.31l Ibid., art. 3.

32 Ibid., arts. and 4.33 Ibid., art. 8.

4 Art. 2(10) SBC: '"border checks" means the checks carried out at border crossing points, toensure that persons, including their means of transport and the objects in their possession, may beauthorised to enter the territory of the Member States or authorised to leave it.

SArt. 10 of the RABIT Regulation, amending art. 10 of the Frontex Regulation.3 COWI (Consultancy within Engineering Environmental Sciences and Economics), 'External

Evaluation of the European Agency for the Management of Operational Cooperation at the ExternalBorders of the Member States of the European Union', Final Reportjan. 2009,at38, available at: <http://wwwfienteeuropa.eu/download/Z2Z4L2Zyb250ZXgvZW4vZGVmYXVsdF9vcGb1eS82M18xLzE/cowLreport-final.doc>.37 S. Carrera, 'The EU Border Management Strategy: FRONTEX and the Challenges of Irregular

Immigration in the Canary Islands', CEPS Working Document No. 261, Mar. 2007, retrievable from:<http://wwwlibertysecurityorg/artidel406.htral>.

8 For the Member States participating in Her 2006 and 2007, refer to the Commission staff work-ing document accompanying the report on the evaluation and future development of the FRntexAgency SEC(2008) 150 final, 13 Feb. 2008. Regarding Hem 2008, refer to Frontex General Report2008, at 40, retrievable from: <http://www.frntex.europa.eu/gfx/frontex/files/justyna/frontex-generaLreport_2008.pdtb. Concerning Hea 2009, refer to Frontex General Report 2009, available at<http://wwwfronteuropa.u/gfx/fiontx/ies/genra-report/2009/ge-rep-2009-en.pdf>.

Against a Fragmentaty Radin of EU Obl*iatns Acauig at Sea 181

increasing operational cooperation between participating Member Statesand third countries.

Hera I, carried out between July and October 2006, was concerned withthe identification of irregular migrants. It thus involved the secondment ofexperts from participating Member States to support the Spanish author-ities in establishing the identity of detected arrivals.39 A total of 18,987migrants landed in the archipelago in the course of the operation. 6,076were returned to the ports of departure.40 Hera /overlapped with the firstoperation, prolonging it until December. Its goal was to reinforce maritimesurveillance of the area separating the Canaries from the Atlantic shore ofAfrica by dissuading paras and cayuos from sailing off the coasts ofSenegal, Mauritania and Cape Verde. When the boats were at sea, theobjective was to intercept them while in the territorial waters of the thirdcountry of embarkation. The Spanish Commander in chief declared in aninterview that 'boats containing a total of 1,243 people ha[d] been inter-cepted and returned to shore', adding that when they were located 'within24 miles off the coast they [were] immediately returned'. 41 The boats wereescorted to the Canary Islands only if they were found outside that zone.Apparently, the authorities of the third country concerned formally assumedresponsibility for the returns, but available reports are inconclusive on thispoint.42 From April until November 2007, Hera Illbrought together thetwo dimensions of Hera land Hera ff. The explicit 'aim of these patrols, car-ried out with Senegalese authorities, [was] to stop migrants from leaving theshores on the long sea journey and thus reducing the danger of losses ofhuman lives'.43 In the course of the operation 'more than 1,000 migrantswere diverted back to their points of departure at ports at the West Africancoast'.44 Since then, Hera has become a permanent operation, carried onthroughout the year according to the needs identified by Frontex. Hera 2008was thus operated from February till December 2008, diverting 5,969migrants back to African countries.45 Hera 2009 ran from March toDecember 2009, producing 'a notable reduction in the number of migrantsarrived to Canary Islands (rounded 2,280/9,200)'. 46

" Frontex Press Release, 'Longest FRONTEX coordinated operation - HERA, the CanaryIslands', 19 Dec. 2006.

4 Frontex Press Release, 'HERA II Operation to be Prolonged', 13 Oct 2006.41 BBC News, 'Stemming the immigration wave', 10 Sept. 2006, available at <http://news.bbc.

co.uk/2/hi/europe/5331896.stm>.42 European Commission News, 'EU immigration: Frontex Operation', 12 Sept. 2006, Ref. 48181:

'JrmaU, Senegalese boats escort the migrants inshore, start the legal procedure and try to arrest thepeople that were paid for organizing the journey' (emphasis added).

Frontex Press Release, A sequel of operation HERA just starting', 15 Feb. 2007.4Frontex Press Release, 'HERA HI Operation', 13 Apr. 2007; Public Bulletin May 2007, Ref. No.

7248/21.05.2007, at 3.4 Frontex Press Release, 'HERA 2008 and NAUTILUS 2008 Statistics', 17 Feb. 2009.4 Frontex General Report 2009, at 43.

182 iwola Momo-Lax

Although a series of Framework Agreements and Memoranda ofUnderstanding exist between Spain and the African countries concerned, 47

the particular legal basis underpinning these operations has not been spe-cified. What Frontex has disclosed in this regard is that the 'agreementswith Mauritania and Senegal... allow diverting.., would-be immigrants'boats back to their points of departure from a certain distance of the Afri-can coast line' and that '[a] Mauritanian or Senegalese law enforcementofficer is always present on board of deployed Member States' assets andis always responsible for the diversion'. In spite of intensified patrollingsome migrants have managed to arrive in the Canary Islands. Frontexexperts have interviewed a fraction of these people, in order to establishtheir nationalities, but 'for intelligence purposes only'. The Agency claimsto ignore whether any asylum applications were submitted during theoperations and it does not collect any data in this respect.49

The objective of Nauti/a is 'to strengthen the control of the CentralMediterranean maritime border.., and also to support Maltese author-ities in interviews with the immigrants'. 50 Like Hera, Nautilus has also beencarried out in phases with the participation of different EU MemberStates5' and has subsequendy evolved into a permanent mission. The firststage took place in June-July 2007. 401 migrants were detected in theoperational area, 63 outside it, and a total of 166 were rescued. Frontexexperts interviewed 26 per cent of the arrivals to Malta. The main coun-tries of origin established, 'as declared by the individuals themselves', 52

were Eritrea, Somalia, Ethiopia and Nigeria, which are among the maincountries of origin of asylum applicants that Malta registered in 2008,half of which received refugee or subsidiary protection status.53 Nautilus2008 was launched after an agreement was eventually reached betweenthe participating Member States on the responsibility for the migrants

47 See, for instance, the Agreement between Spain and Mauritania of 1 July 2003 for cooperationin immigration matters, [2003] BOE 185/30050; the Framework Agreement conduded betweenSpain and Cape Verde on 20 Mar. 2007 for cooperation in immigration matters, [2008] BOE 39/8028;the Convention signed by Spain and Senegal on 5 Dec. 2006 for cooperation in the fight against crime,[2006] BOCG 36, Serie A, 110/000027; and, the Agreement between Senegal and Spain, also of5 Dec. 2006, for cooperation in the prevention of emigration of unaccompanied Senegalese minors,their protection and re-insertion, (2008] BOE 173/31413.

4 'HERA 2008 and NAUTILUS 2008 Statistics', above n. 45.49 Letter to the Immigration Law Practitioners' Association, Ref. 12425/19.12.2008, 21 Jan. 2009

(on file with the author).50 Frontex Press Releas, joint Operation Nautilus 2007 - the end of the first phase', 6 Aug 2007.51 Fr .Naaacs 2006 and Nmuatila 2007, refer to the European Commission, SEC (2008) 150 final;

regarding the participants in Naitdo 2008, consult Frontex General Report 2008; for Nautils 2009,refer to Frontex General Report 2009; see, above n. 38,

5 Letter to the Immigration Law Practitioners' nAociation, above n. 49.53 Eurostat News Release, Wsyium in the EU in 2008', STAT/09/66, 8 May 2009, available at:

<http://epp.eurostat.ec.europa.cu/cache/ITYPUBLIC/3-08052009-AP/EN/3-08052009-AP-EN.PDF>.

Against a Fragmentary Reading of EU Oblgations Acding at Sea 183

saved at sea.Y' After prolonged discussions, it was decided that migrantsintercepted in the Libyan Search and Rescue Area would be returned toLibya or taken to the closest safe port if that were not possible. As Libyadid not agree, no diversions were performed. 16,098 migrants managed toarrive in Italy, whereas 2,321 reached the shores of Malta. 55 Persisting dif-ferences between Italy and Malta with regard to the country responsiblefor disembarkation delayed the start of Nautilus 2009. Ultimately the 'dos-est safe port' rule was maintained.

On 30 August 2008, Italy and Libya concluded the Treaty of Friend-ship, Partnership and Cooperation, making provision for mutual assistancein the fight against irregular migration.5 6 The day-to-day implementationof the agreement is governed by an Additional Technical-OperationalProtocol of 4 February 2009, which is not publicly available. 57 The firsttangible result of the Italian-Libyan partnership was the transfer toLibya of several patrol boats to be jointly operated by the authorities ofboth countries. The boats have been 'used in joint patrols in Libyan ter-ritorial water and international waters in conjunction with Italian navaloperations'. The Libyan coast guard was stationed at the Italian com-mand base on the island of Lampedusa and the Guardia di Finanza senta team to the Libyan coast guard station in Zuwarah, which served asa base of command on the Libyan side.5 8 By 30July 2009, seven oper-ations were carried out, with a total of 602 migrants returned toLibya.59 According to UNHCR, although a significant number of themclearly required international protection,60 the returns were performed'without proper assessment of their possible protection needs'. 61

54 Frontex Press Release, 'Go ahead for Nautilus 2008', 7 May 2008.5 'HERA 2008 and NAUTILUS 2008 Statistics', above n. 45.56 'Fma per risarcimato Ia-Libia. "Saremo vid sUimuiaioan"', La RAe"Wbica, 30 Aug 2008,

available at <http://www.repubblica.it/2008/05/sezioni/esteri/libia-italia/belusconi-gheddafi/bedusconi-gheddali.html>. For the text of the Treaty in Italian, go to: <http://www.camera.it/-dati/legl6/lavori/schedela/apritelecomandowai.aspcodice= l6pdl00! 7390>. The text of the agreementrefers to a Protocol of 29 Dec. 2007, available at: <http://www.ilvelino.it/archivio/documenti/allegatojdocumento_62 l.pdf>, as well as to an Additional Protocol, also of 29 Dec. 2007, retrievablefrom: <http://www.ilvelino.it/achivio/documenti/alegato-documento-622.pdf>.57 UNHCR, 'Submission in the Case of Hini a.&. 14* (Application no. 27765/09)', Mar. 2010,

para. 2.1.3 and references therein, retrievable from: <http://www.unhcr.org/refworld/docid/4b97778d2.html>.

M Lbya can process asylum seekers', La GAz ft ddMuwwisro, 14 May 2009, available at: <http://www.lagazzettadelmezzogiorno.it/GdM.economiaNOTIZIA_02.php?IDNotizia=23467 I&1DCategoria=2687>.

5 CPT Report to the Italian Government, above n. 1, para. 31. Howeve, UNHCR has registeredover 900 persons pushed back during the same period, see, 'Refugee protection and internationalmigration:areviewof UNHCR's operational role insouthern Italy', Sept. 2009, available at <http://wwwunhcr.org/4ac35c600.htmn>.

6 'UNHCR interviews asylum seekers pushed back to Libya', above n. I.61 'UNHCR deeply concerned over returns from Italy to Ibya', above n. 1.

184 Vileta Moreno-Lax

Although the relationship between Nauti/us 2009 and the Italian push-backs remains ambiguous, what is certain is that Nautilus 2009, runningfrom April to October 2009, coincided with the period in which Italybegan this policy At the launch of Nautilus 2009 the hope was expressedthat the mission would be 'beefed up through the launch of joint patrolsbetween Italy and Libya... monitoring the North African country's terri-torial waters'. 62 The decrease in the number of arrivals on the shores ofSicily and Sardinia in that period has been openly attributed to the agree-ments between Italy and Libya.63 On the other hand, Frontex has beenaccused of having assisted Italy by taking action that has resulted in thediversion of migrants to Libya. According to Human Rights Watch, on 18June 2009,

[a] German Puma helicopter operating as part of the Operation Nautilus IVcoordinated [the] Italian Coast Guard interception of a boat carrying about 75migrants 29 miles south of Lampedusa. The Italian Coast Guard reportedlyhanded the migrants over to a Libyan patrol boat, which took them to Tripoli."r

A day after this report was published, Frontex issued a press release 'tostate categorically that the agency has not been involved in diversion activ-ities to Libya'. The press release addresses the incident described in thereport, specifying that 'Operation Nautilus 2009 was underway on June18th 2009, but in a different operational area'. 65 The operational plan of.Naus 2009 remaining secret, this is diff cult to corroborate.66 In any case,even if the exact degree of the Agency's participation in the diversions toLibya cannot be established, the complementarity between Frontex opera-tions and the Italian-Libyan patrols in reducing unwanted arrivals throughthe maritime route is quite clear.67

2 1. Canilleri, 'Rescued immigrants to disembark at the "closest safe pore", T.m of Ma/ka, 26 Apr.2009.

63 'Immigration: lilegal Arrivals from Sea Halved in Italy', above n. 15.64 'Pushed Back, Pushed Around', above n. 1, at 37 (references omitted).5 Frontex Press Release, 'Frontex not involved in diversion activities to Liba', 21 Sept. 2009.

6 See, however, 'Frontex "may be helping" Italian migration policy', Empm F, 24 Nov.2009, where the Agency seems to recognise its involvement in the push-back campaign. For fur-ther commentary, see, J. Rijpma, 'Frontex: Successful Blame Shifting of the Member States?',ARI 69/2010, 13 Apr. 2010, available at: <http://wwwrealinstitutoelcano.org/wps/wcm/connect/39l e6a00421a96f98d66ef8b6be8b54b/AR169-2010_RijpmaFrontexMemeber_StateEuropeanUnion.pdf?MOD=AJPERES&CACHEID=391 e6a00421 a96f98d66effb6be8b54b>.

67 According to Le Mont, 'no vessels have landed on [Malta] since March this year' and 'Italy hasalso reported a steep decline in the number of migrant vessels landing on its shores... the latest esti-mates show a decrease of 94 per cent between 2009 and the first six months of 2010'. In Spain'[t]herehas also been a considerable decrease', a 50% drop being reported between 2008 and 2009. See, 'Boatpeople looking for new ways in', 24 June 2010, available at: <http://www.premeurop.eu/en/content/artidcle/28 101 l-boat-people-looking-new-ways>. The inlormation is corroborated by the lateststatistical bulletin from Frontex, where a massive displacement of migration flows from sea to landroutes is avowed, the main reason being 'the effectiveness of Frontex activities at the sea borders' as

Against a Fragmentary Read* of EU Obkatwos Accruig at Sea 185

The fate of refugees and asylum seekers caught up in maritime mis-sions remains unknown. Available evaluations recognise that 'experiencesgained from joint operations show that border guards are frequentlyconfronted with situations involving persons seeking international pro-tection or crisis situations at sea', but fail to undertake any further ana-lysis on the point.68 The fact that Frontex does not register any datawith regard to international protection is particularly unhelpful andcasts doubt on the robustness of its commitment to fundamental rights.From the information accessible, it appears that migrants are probablydiverted back to African countries before being given the opportunityto lodge an asylum application or to contest an entry refusal.69 TheItalian authorities have officially acknowledged that 'they do not pro-ceed with the formal identification of migrants who are intercepted atsea'. The government has affirmed that no migrant has ever expressedan intention to apply for asylum and that, consequently, 'there has beenno need to identify these persons and establish their nationality'. 70

However, prior to the push-back campaign, around 75 per cent ofmigrants arriving in Italy by sea did request international protectionand approximately 50 per cent of these were granted some form ofasylum.71 This points to potentially very serious breaches of the rele-vant standards as detailed below.

well as 'national bilateral agreements in these areas'. See, FRAN Quarterly Issue 2, Apr.-June 2010,Risk Analysis Unit, Sept. 2010, at 12-13, available at: <htt://wwwfrontex.eumpa.eu/situation-atjthe-externaLborder/art I 7.hud>. Subsequent to the displacement of migratory flows, Greece hasrequested the launch of the first RABIT operation to counter irregular arrivals through the Turkish-Greek land border, see, 'EU to deploy armed patrols at Greek-Turkish border', EU Obasrw, 25 Oct.2010, available at: <http://euobserver.com/22/31116>, and 'EU sends border guards to Greece',Ewme Wee, 25 Oct. 2010, retrievable from: <http://wwweuropeanvoice.com/artide/imported/eu-sends-armed-border-guards-to-greece/69257.aspx>.

68 Report on the evaluation and future development of the Frontex Agency COM(2008) 67 final,13 Feb. 2008, at 5. See also, the assessment by the private contractor COWl, above n. 36. Note, more-over, that the European Commission has reached an agreement with Libya on migration managementand border control, issuing a joint communique listing a series of activities to be funded through theEU budget. EUR 50 million have been earmarked until 2013. See, the letter addressed by Commis-sioner MalmstrOm to the Chairman of the LIBE Committee, CAB ReE LM/pj D(2010)921, 8 Oct20 10 (on file with the author). For further information, see, the European Commission Press Release,'European Commission and Libya agree a Migration Cooperation agenda during high level visit toboost EU-Libya relations', MEMO/I0/472, 5 Oct. 2010.

69 This is precisely what the victims of the 2009 push-back campaign have alleged in the casepending before the ECtHR, Hin'i e a Iray, Appl. No. 27765/09. A comparable case of imme-

diate returns to Greece is also pending: ECtHR, SWj a.e. a Italy and Grmsc, Appl. No. 16643/09.Similar arguments were put forward by the victims of a previous push-back operation, which wereinitially accepted as admissible by the Court: ECtHR (Dec.), Harsu a.e. a. 14/, Appl. No.10171/05, 11 May 2006. Yet, the case has been struck out the list of cases on 19Jan. 2010, dueto the impossibility to retrace the victims and to the uncertain powers of representation given totheir lawyers to pursue the case in their name.

70 CPT Report to the Italian Government, paras. 13-14, above n. 1.71 UNHCR, 'Refugee protection and international migration: a review of UNHCR's operational

role in southern Italy', Sept. 2009, available at: <http://wwwunhcr.org/4ac35c600.htnl>.

186 Viwota Mowo-Lax

3. Contextualising sovereign powers of maritimeinterdictionState authority at sea is not absolute. The 1982 UN Convention on theLaw of the Sea (LOS) 72 circumscribes states' powers so that they areexercised with due respect to the Convention itself and to 'other rules ofinternational law'. 73 In the high seas freedom of navigation reigns and,as a rule, ships are subject to the exclusive jurisdiction of their flag state.74

Other states may exercise jurisdiction in very limited instances only 75

In the case of ships of uncertain nationality and stateless ships, statesenjoy a 'right of visit'. 76 In principle, such a right of visit, '[e]xcept whereacts of interference derive from powers conferred by treaty', appearssimply to entail a right to approach and board the ship as to effect a vna-lion du paviUo Whether this right engenders further powers of seizure iscontroversial. The doctrine is divided and limited jurisprudence is avail-able on this point. 77 Some authors consider that the use of force would notbe justified in the case of flagless ships without 'some jurisdictional nexusin order that a state may extend its laws to those on board a stateless shipand enforce the laws against [them]'. 78 Other authors argue that 'extraor-dinary deprivational measures are permitted with respect to statelessships'. 79 The first view appears more consonant with the LOSO. The factthat visit and enforcement powers have been regulated separately in theConvention 8° suggests that a right of visit does not imply wider enforcement

7 United Nations Convention on the Law of the Sea, 1833 UNTS 3 (LOSC). Both the EU and allits Member States have ratified the Convention. See, the status of the Convention as of 20 Aug 2010at <htp://treamun.org/P gees / IVewDetaslaas tv=TRE ATY&mtdsgno=XXI-6&ch apter=21 &Temp=mtdsg3&lang-en>, as well as Council Decision 98/392/EC, of 23 Man 1998, concerningthe condusion by the European Community of the United Nations Convention of 10 Dec. 1982 onthe Law of the Sea and the Agreement of 28July 1994 relating to the implementation of Part XIthereof, (1998] OJ L 179/1. According to art. 309 LOSC, '[n]o reservations or exceptions may bemade to this Convention unless expressly permitted by other articles of this Convention'.

73 Ibid., arts. 2(3) and 87(1), concerning, respectively the territorial sea and the high seas.74 Ibid., arts. 92(1) and 87. See also, art. 6 of the 1958 Convention on the High Seas, 450 UNTS 82.75 Art& 99, 100, 109, 110 and I I I LOSC, covering the only instances in which non-flag states may

exercise jurisdiction: slave trading, piracy, unauthorized broadcasting, flaglessness, hot pursuit, andconstructive presence.

76 Ibid., arts 92(2) and 110.77 The only reported case that has reached a national court concerning the interdiction of a flagless

ship transporting undocumented migrants on the high seas in which the flaglessness of the ship wasconsidered sufficient ground to justify the assertion of enforcement jurisdiction is that of PAmuk a.,decided by the Tikm Cdma e on 27 Sept. 2001, cited in RDI(2001), at 1155. For commentary referto S. Trevisanut, 'Dwif de la urn' (2006) 133 Jwa dui* i"saimaiOW 1035-7.

78 R. R. Churchill and A. V. Lowe, 77 Law of du Sea (Manchester Manchester University Press,1983), at 214,

79 M. S. McDogal and W T. Burke, 7A0 Pub& Od of dw Gkw (New Haven/London: YUg1962), at 1084.

80 Note, for instance, that the right to visit a pirate vessel on the high seas is provided by art. 1I0LOSC, whilst the jurisdictional basis for seizure is accorded separately by art. 105.

Against a Fragmenwy Reading of EU Oblations Acmug at Sea 187

prerogatives.81 According to article 110, when a ship is without nation-alit) the warship of the state concerned may proceed to verify its identity.'If suspicion remains after the documents have been checked, it may pro-ceed to a further examination on board the ship, which must be carried outwith all possible consideration'. Nowhere does the LOSC provide for anyother powers with regard to these vessels. 82

Seizure begs the additional question that a crime has been committedon the high seas. However, where a ship is engaged in the transport ofslaves, in human trafficking, or in the smuggling of migrants, '[t]heapproach taken under various international instruments to maritime juris-diction over such crimes is inconsistent'. 83 Slave trade, pursuant to articles99 and 110 LOSC, attracts only a right of visit. The slavery Conventionsdo not provide for interdiction powers either.84 The UN TraffickingProtocol provides for cooperation between state parties in order to preventand combat trafficking and to protect and assist the victims thereof.85

Without specifically providing for interdiction, article I I requires statesparties to 'strengthen, to the extent possible, such border controls as maybe necessary to prevent and detect trafficking in persons'. Nonetheless, 'therights, obligations and responsibilities of States... under international law,including international humanitarian law and international human rightslaw.., the 1951 Convention... relating to the Status of Refugees and theprinciple of non-refouzaent' remain unaffected.8 6 As far as smuggling is con-cerned, the relevant UN Protocol establishes that where a state party hasreasonable grounds to suspect that a vessel flying the flag of another stateis engaged in migrant smuggling it may so notify the flag state, request con-firmation of registry and, if confirmed, request its authorization to boardand search the vessel. If evidence is found thereafter that the vessel isengaged in migrant smuggling, the state concerned can then take 'appro-priate measures with respect to the vessel and persons and cargo on board,as authorized by the flag State'.87 In cases of boats without nationalitysuspected of being engaged in migrant smuggling, the state concerned

81 PL Barne3, 'The International Law of the Sea and Migration Control' in Ryan and Mitsilegas(ed.), above n. 29, 103-50, at 133.

82 M. Nordquist (ed.), Utd Natiwas Cos.amtjna eu Law of On Sn A Ceammuas, Vol, III (DordrechtMartinus Nijhoff, 1985), at 127.

83 D. Guilfoyle, S&klftipdIn km and du Law of hw Sm (Cambrkige: CUIP 2009), at 181.84 1926 Slavery Convention, [1927] UKTS 16, and 1956 Supplementary Convention on the Abo-

lition of Slavery the Slave Trade, and Institutions and Practices Similar to Slavery 226 UNTS 3.85 Art. 2, Protocol to Preventt Suppress and Punish Trafficking in Persons, Especially Women and

Children, supplementing the United Nations Convention against Transnational Organized Crime,supplementing the United Nations Convention against Transnational Crime [2001], 40 ILM 353(TrafficTing Protocol).

Ibid., art. 14(1).87 Art. 8(2) and (5) protocol Against the Smuggling of Migrants by Land, Sea and Ail; supplementing

the United Nations Convention against Transnational Organized Crime, supplementing the UnitedNations Convention against Transnational Crime [2001],40 ILM 384 (Smuggling Protocol).

188 oet Morno-Lax

may directly 'board and search the vessel'.88 In the event 'evidence con-firming the suspicion is found, that State Party shall take appropriatemeasures in accordance with relevant domestic and international law'. 89

In neither case shall these measures:

affect the other rights, obligations and responsibilities of States and individualsunder international law, including international humanitarian law and inter-national human rights law and, in particular, where applicable, the 1951Convention... relating to the Status of Refugees and the principle of non-rofo . .90

Therefore, contrary to what the European legislator appears to assume inits Decision governing Frontex operations at sea, such actions as seizing theship and apprehending the persons on board; ordering the ship to modify itscourse towards a destination outside the territorial waters or the contiguouszone; escorting the vessel or steaming nearby until the ship is heading onsuch course; conducting the ship or the persons on board to a third countryor handing them over to the authorities of a third state, 91 do not readilyfollow from the terms of the applicable treaties. The fact that the cajuos andpaler used for the transport of migrants do not fly the flag of any state doesnot seem to allow for unlimited enforcement jurisdiction in their regard.

In this framework, detention constitutes a separate issue.92 The Euro-pean legislator, supposedly 'in accordance with the Protocol against theSmuggling of Migrants', proposes that when ships without nationality arepresumably engaged in the smuggling of migrants the persons on boardmay be apprehended. 93 However, the Smuggling Protocol does not regu-late anywhere the conditions under which smuggled migrants can bedetained. It provides merely for the state party concerned to take 'appro-priate measures' if evidence is found confirming the suspicion that thevessel is engaged in the smuggling of migrants by sea. In the case ofMediwdv, the European Court of Human Rights has established the inad-equacy of a similar 'appropriate measures' provision contained in article17 of the UN Convention against Illicit Traffic in Narcotic Drugs 4 to

Ibid., art, 8(7).89 Ibid. Note, in this context, that, according to well-esmblishedjurisprudence, international agree-

ments outside LOSC containng an exception to the general rule prohibitng the visitation and board-ing of foreign vessels on the high seas 'must be constructed adoja .. See, the Arbitral Award on theWdaerr (US a Grt Btfift (1921) 6 RIAA (1955), at 71-3.

90 Art. 19 Smuggling ProtocoL91 Fmntex Guidelines Decision, above n. 10, Annex, Part 1, paras. 2.4 (d), (e) and (f),92 Distinguishing between jurisdiction in ren and jurisdiction im pfsomnw, see, E. Papastavridis,

'EnforcementJurisdiction in the Mediterranean Sea: licit Activities and the Ride of Law on the HighSeas' (2010) 25 (7MCL 543-73, from 558.

93 Frontex Guidelines Dedsion, above n. 10, Annex, Part I, paras 2.5.2.5. and 2.4.(d).94 UN Convention against Illicit Traffic in Narcotic Drugs and Phsychotropic Substance*, [1989]

28 ILM 497.

Against a Fragmenay Reading of EU Obbiai Accnang at Sea 189

serve as a legal basis for the arrest of persons on board a ship on the highseas suspected of being engaged in drug trafficking, The Court consideredthat such provision did 'not afford sufficient protection against arbitraryviolations of the right to liberty. 95 Like article 8(7) of the SmugglingProtocol, article 17 of the Convention against Drug Trafficking merelyallows the intervening state to 'take appropriate measures' concerning thevessel in question and, 'if evidence of involvement in illicit traffic is found',to take 'appropriate action with respect to the vessel, persons and cargo onboard'. The Court considered that '[n]one of those provisions refers spe-cifically to depriving the crew of the intercepted ship of their liberty', con-cluding that 'they do not regulate the conditions of deprivation of libertyon board ship, and in particular the possibility for the persons concernedto contact a lawyer... Nor do they place the detention under the supervi-sion of a judicial authority'. 96 The lawfulness criterion inbuilt into article5 ECHR97 wants that the specific regime 'for deprivation of liberty underdomestic and/or international law be clearly defined and that the law itselfbe [accessible and] foreseeable in its application' so as to 'satisfy the gen-eral principle of legal certainty'. 8

In this light, a thorough legal system must be established regulating theparticular terms and conditions under which persons on board flagless ves-sels navigating the high seas could be subject to detention, respecting thelegality criterion enshrined in the ECHR and subjecting the measure toproper procedural guarantees and judicial oversight. Otherwise, the EUrules for sea border operations coordinated by Frontex risk violating article5 of the Convention.

With regard to detention, an additional observation is in order. Not onlydoes the Smuggling Protocol fail to regulate the conditions under whichthose suspected of involvement in migrant smuggling by sea can bedetained, but it specifically requires a general distinction to be drawn be-tween the victims and the smugglers themselves. Whereas the Protocolprovides for 'the prevention, investigation and prosecution' of the crimesrelated to migrant smuggling,99 the victims must be the object of 'protec-tion and assistance'. To that end, each Contracting Party shall adopt

95 ECtHR, Medva a.&v. F ranc, Appl. No. 3394/03, 10july 2008, paras. 57-63, at 61, confirmedby the Grand Chamber in its judgment of 29 Mar. 2010, paras. 82-103, For commentary see, TTreves, 'Human Rights and the Law of the Sea' (2010) 28 B d*J/L 1- 14; . Guilfoyle, 'MEd4w andOdin a Fmave, European Court of Human Rights' (2010) 25 .MCL 437-42; F, Papastavridis, 'Euro-pean Court of Human Rights Med w9a d* aL a France (Grand Chamber, Application No. 3394/03)Judgment of 29 March 2010' (2010) 59 ICLQ867-82.

95Ibid., Grand ChamnberJudgment, para. 61.97 European Convention for the Protection of Human Rights and Fundamental Freedoms, CETS

5 (ECHR).98 Grand ChamberJudgment, above n. 95, paras. 80 and 102.99 Smuggling Protocol, above n. 87, art. 4.

190 Viwlta MorMn-Lax

'appropriate measures' to preserve and protect their rights 'consistent withits obligations under international law'. 100 Consequently, if the rules forFrontex operations are to implement the Smuggling Protocol in goodfaith,10 'appropriate measures' shall be introduced to properly distinguishvictims from smugglers, in accordance with international standards. Theopposite may lead to an abuse of rights. 10 2

In the contiguous zone, extending out the baseline up to 24 nauticalmiles, the coastal state enjoys 'a limited right of police'.103 Contrary towhat seems to follow from the Frontex Guidelines Decision, 104 this areadoes not fall within the exclusive sovereignty of the coastal state and pre-serves the navigational freedoms associated with the high seas. Article 33(1)LOSC allows the coastal state to exercise 'the control necessary to prevent[the] infringement of its customs, fiscal, immigration or sanitary laws andregulations within its territory or territorial sea'. But only such control as isnecssary to prevent immigration rules from being breached is permitted,which requires proportionality in each particular case. 105 A pion, it is notobvious that powers of detention, escort to port and forcible return areencompassed in this provision. The observations made with regard to thehigh seas on this point are pertinent here too. According to the tenet ofndIum cnmen nu!ia poena sine ege, it is 'arguable that the necessary power tocontrol does not include the right to arrest, because at this stage [that is,that of a ship coming into the contiguous zone] the ship cannot have com-mitted an offence'. 106 Enforced direction into port may not be arrest in a

100 Ibid., art. 16.10t Art. 26 VCLT codifies the pata s= wwnda principle, stipulating that 'Every treaty in force is

binding upon the parties to it and must be performed by them in good faith'. According to art 31VCLT, '[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object and purpose'. For com-mentar refer to G. S. Goodwin-Gill, 'State Responsibility and the "Good Faith" Obligation in Inter-national Law' in L Ftzmaunice and D. Sarooshi (eds.), Isas of Stt Rapoill4 &Y= I ihouJdida Jhasgim (Oxford: Hart Publishing, 2002), 75-104.

102 Art. 300 LOSC provides in this regard that: 'States Parties shall fulfil in good faith the obliga-tions assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recog-nized in this Convention in a manner which would not constitute an abuse of right'.103 D. R O'Connell, The hn=uihdioeu of * &s Vol. 1 (Oxford: OUP, 1984), at 1058.104 The Decision distinguishes only between 'territorial waters and contiguous zone' and 'the high

seas beyond the contiguous zone', thus assimilating the contiguous zone to the territorial sea for thepurposes of interdiction, contrary to the LOSC regime. See, Annex, Part I, paras. 2.5.1 and 2.5.2.

10 5 See, the Award by the Permanent Arbitral Tribunal, Gmana v &auw, 17 Sept. 2007, para.445: 'in international law force may be used in law enforcement activities provided that such force isunavoidable, reasonable and necessary, citing & "FM A/m. (Cwada/Utd&wwt), 3 RIAA, at 1615and Red Ousad (Cemmiuie of EqAd f Dmw-Unded Ru), 35 ILR, at 199, retrievable from:<http://www.pca-cpa.org/upload/files/Guyana-Suriname%20Award.pdf>.

O0 'Connell, above n. 103. In the Fio case, both the Tribunal and the Court of Appeal ofPauiemo decided that Italian criminal jurisdiction could not apply to the actions committed on the highseas by a Honduran vessel suspected of being engaged in drug trafficking, due to the fact that at nopoint of the pursuit by the Italian Navy had the foreign ship entered territorial waters. See, RDI(1992),at 1081. On the limits to the exercise of criminaljurisdiction, see, art 27 LOSC.

Against a Fgmentary Reading of EU Obtations Accrndg at Sea 191

technical sense, but it is tantamount to it and should therefore be equallyexcluded at this level. 107 In any event, an exercise of jurisdiction in thiszone remains limited by the observance of 'other rules of internationallaw',108 including refugee law and human rights.

Not even in the 12 miles of territorial sea can coastal states exert unlim-ited powers. The right of innocent passage allows vessels to navigate itwithout entering internal waters or port, unless authorized by the coastalstate. Passage must be continuous and expeditious, except for stopping oranchoring incidental to ordinary navigation or rendered necessary byfwremajaere or distress or for the purpose of rendering assistance.1 09 Article 19LOSO specifies that passage is not innocent when it is prejudicial to thepeace, good order, or security of the coastal state. In particular, passage isrendered non-innocent if the vessel engages in the loading or unloading ofpersons 'contrary to the immigration rules of the coastal State'. As asylumlegislation is commonly integrated in the immigration rules of those statesregulating the issue, it is difficult to accept that passage for the purpose ofrequesting international protection would be 'contrary to the immigrationrules of the coastal State'. The question becomes more complex in the caseof a mixed crew of refugees and other persons who would not benefit fromthe exclusion from penalties for illegal entry provided for in article 31 CSR,or where the master of the ship is carrying the migrants for profit. In suchcases, state practice has offered multiple examples of passage being consid-ered non-innocent. t 10 Goodwin-Gill and McAdam suggest that '[t]he factthat a vessel may be carrying refugees or asylum seekers who intend to re-quest the protection of the coastal state arguably removes that vessel fromthe category of innocent passage', I I but the doctrine is not uniform onthis point. Pallis has questioned this approach, noting that seeking asylumactually 'accords with international law' for which reason the passage ofasylum seekers' boats should not be deemed contrary to article 19(1)LOSC." 1 2 Moreover, 'passage' does not strictly correspond to the 'loading'

107 Although there was no enforced transfer of the crew onto the French frigate, the ECtHR has.- tahiqhMd that, h"wA, 'the ships enurse was imposed by the French forces', the situation of theapplicants 'amounted in practice to a deprivation of libery in Medvry a.& v Fran [GC], 29 Mar.2010, above n. 95, paras. 74-5. The ITLOS has equally countenanced a broad interpretation of thenotion of detention in Camuow (ama sa.ance), [2000] ITLOS Rep. 10, 125 ILR 164, para. 71; MoneCbna w (Se/wa a wwm), [2000] ITLOS Rep. 86, 125 ILR 220, para. 90; and Hwshimw 04 aRu), [2005-7] rrLOS Rep. 18, para. 12.

108 Art. 87(1) LOSC.10 Art. 18 LOSC110 For a prominent example, see, the Australian MVTampa incident in 2001. For a 6uU account of the

factsof the case, refer to the Full Federal Court of Australia, Raddad c. a Vadfiia.A [2001] FCA 1329. Foranaly, see, F Mathe Australian Refugee Protection in the Wake of the Tampa' (2002) 96 471L 661-76.

11 G. S. Goodwin-GiU and J. McAdam, The Rign in lnmaianal Law (Oxford OUP, 3A1 Ed.,2007), at 274.

112 M Pas 'Obligations of States towarS Asyhm Seekers at Sa: Interactions and CoflictU BetweenLegal Rqgimes' (2002) 14 ArRL 329-64, at 357. For the whole discussion on innocemt passagep, refer to 355-9.

192 Vwkta Momno-Lax

or 'unloading' of persons in breach of the immigration regulations of thecoastal state, which arguably removes refugee boats transiting the terri-torial sea from the scope of application of article 19(1) LOSC altogether.

Where passage is considered non-innocent, recourse may be had to art-ide 25 LOSC, allowing coastal states to adopt 'the necessary steps... toprevent passage'. Any such steps should always conform to other applic-able 'rules of international law'. 113 The regime of distress constitutes anexception to this norm, extending a right to dock and to seek refuge in ad-jacent ports to vessels in distress. Although the LOSC does not directlycodify it, the existence of this right in customary law is supported by com-mentary1 4 and consistentjurisprudence.11 5 The necessity of entering port'must be urgent and proceed from such a state of things as may be sup-posed to produce, on the mind of a skillful mariner, a well-groundedapprehension of the loss of the vessel and cargo or of the lives of thecrew'.1 6 The Irish High Court of Admiralty has recently confirmed'the right of a foreign vessel in serious distress to the benefit of a safehaven in the waters of an adjacent coastal state'.117 Refusing entry toport under these circumstances, returning marginally seaworthy vesselsto the high seas, seems indeed opposed to 'elementary considerations ofhumanity'." 18

Alternative solutions to allowing passage and entry to port may fail tocomply with the rationale of securing the safety of life at sea inscribed inthe maritime conventions. Thus, if in cases of distress initial succour maybe provided aboard an assisting ship, temporarily maintaining the survi-vors at sea, 119 according to the Guidelines on the treatment of rescuedpersons of the International Maritime Organization (IMO), a vessel can-not be considered a final place of safety. A place of safety may only be on

I 1 Art 2(3) LOSC. The ECtHR has interpreted, in this context, that acts of interference with theright of innocent passage have not only to conform with arts. 19(2Xg) and 25 LOSC, but also with therequirements of the ECHR and, in particular, with the principle of proportionality See, Hmm anWzmsa.o a I P'n Appl. No. 31276/05, 3 Feb. 2009, par. 43: ukE AU cbwm .ne mwuiwpradreawmn. do "la s" iqai'*, n~ib" quebe -ewk q~Pa - aPjm~Pdik [ - .J L!%dee en qiws* enat - *-.hui donqm pw an "busin soal impie d* at sarasser piw "ncesaiw dans amwne scd~lhnuiqae'.

"I C.J. Colombos, Hqins and Cokluinon dw h/mme adin Law of th Stu (London: Longmans, 1951),at 329; A. Chircop, 'The Customary Law of Refuge for Ships in Distress' in A. Chircop and 0. Linden(eds.), Pkm of ,* fr &W (Leiden: Martinus Nijhof, 2006), 163-229. Compare, E. Somers, l iq,ted ha unaimoa Z (Mechelen: Kluwer, 2004), at 38-40.

"5 TCe Occ [1853] Moore, International Arbitration 824.116 General Claims Commission United States and Mexico, Opinion rendered 2 Apr. 1929, KatA.

Hoff a T7 Unid Mian Sbe, 4 IUAA 444, reprinted in (1929) 23 A7L 860-5.11 TheMVTJ"e [1995] 2 ILRM 30,48-9.118 ICJ, Cmfi Conead Case (United Agimnds a Mnia), [1949] lCJ Rep. 4, para. 22. The expression

has been reiterated by the iTLOS in its recent decisions on the cases MVSaiga (Na 2) (&*. im .aGaie4, [1999] 1TLOS ReLp 10, 120 ILR 143, para. 55; and,jim Trader [2004], ITLOS Rep.17, 128ILR 267, para. 77.

19 This would reproduce the initial strategy taken by Australia in the MV Tama incident in 2001,above n. 110.

Against a Fragmentar Reading of EU Obligations Accruig at Sea 193

dry land,120 for which reason allowing passage and entry to port mighteventually have to be tolerated. With regard to vessels in distress carryingasylum seekers, the European Court of Human Rights' dMtum that reten-tion in purportedly extra-jurisdictional zones must not deprive them fromgaining effective access to determination procedures,121 acquires par-ticular relevance in this context. In addition, a breach of article 5 ECHRshould also be anticipated if this option is pursued without a procedure 'inaccordance with the law' or for a time exceeding the legal period of deten-tion without judicial review.122 Beside retention at sea, another possibilitythe coastal state concerned may wish to contemplate is return to a thirdcountry. Yet, as detailed below, summary expulsions, without accountbeing taken of the particular circumstances of the person concerned, mayamount to wfilament. 123 Therefore, no other reasonably practicable alter-natives may finally remain for the coastal state concerned but to allow pas-sage and entry to port in the particular case.

Beyond practical considerations, stemming from a positive obligationto protect the life of those under their jurisdiction, coastal states may beobliged, as a matter of human rights law, to authorize both entry to portand disembarkation. The European Court of Human Rights implicitlyaccepted in Xhavara that migration controls bring the persons concernedunder the jurisdiction of the intercepting state and so within the ambit ofthe ECHR. The incident concerned the death of 58 Albanians aboard theKaterlRades, which sank in open seas 35 miles off the Italian coast aftercollision with the Italian warship Sibilla. Although the claim was finallydismissed for non-exhaustion of domestic remedies, the Court, relying onthe doctrine on positive obligations,124 recalled that the first sentence ofarticle 2(1) ECHR enjoins the state not only to refrain from the intentionaland unlawful taking of life, but also to take appropriate steps to safeguardthe lives of those within its jurisdiction. 125 Assertive action to effectivelyprotect human life is required in these circumstances. As observed by

120 IMO Guidelines on the treatment of persons rescued at sea, Resolution MSC. 167(78), 20 May2004, pars. 6.14: A, place of safety may be on land, or it may be aboard a rescue unit or other suitablevessel or facility at sea that can serve as a place of safety wta thOwr== are disanW . .' (emphasisadded).

121 ECtHR, Am a Fmnww, AppL No.19776/92, 25June 1996, pan. 43.12 Ibid.; Siam a A=4 Appl. No. 45355/99 and 45357/99,27 Feb. 2004; &a& a UX Appl. No.

13229/03, 29Jan. 2008.123 ECtHR, Gebrnslia a Fa , Appl. No. 25389/05, 26 Apr. 2007; Ab&doMi and Kwinna a

Tv4q, Appl. No. 30471/08,22 Sept 2009.Aham referred to the ECtHRjudgment in O4mna a U4 Appl. No. 23452/94, 28 Oct. 1998,

which has since been qualified in subsequent decisions. However, the overall principle remains intact.See, for instance, ECtHR, Taib a Fmac, Appl. No. 39922/03, 1 June 2006, paras. 87-110.

125 ECtHR, AM= and 15 Ams v. I* adAhania, Appl. No. 39473/98, 1I Jan. 2001, at 1. Theoriginal is in French: The Court 'mApe& c*nda qa la kpri ph/ar d uaride 2(1) =sbein ks Mat nosennau 4 slabstA*mirswquwrh uaid de mmi volonaftb d idaibre nais m raassivla ksnen nicesaedla Ipmtxdo de la vie dosperonno ,vlooando harwidin

194 Viwleta Morno-Lax

Spijkerboer, '[tihe obligation... is not conditioned on a causal relationshipbetween the State's actions and someone's death. Rather, the obligation istriggered by the State's knowledge that a particular life is at risk and thatsame State's ability to [protect it from being lost]'. 126

4. An integrated approach to search and rescueRescue-at-sea has often been adduced as the legal basis buttressing theboarding of flagless vessels in the Mediterranean Sea. An extended ana-lysis of the precise contours of this notion becomes hence pertinent. Theduty to render assistance to persons in distress at sea constitutes 'one ofthe most ancient and fundamental features of the law of the sea' 127 andis widely recognized as a norm of customary law. 128 A number of treatiesspecify several elements of this obligation. Together with the LOSC,the 1974 Safety of Life at Sea (SOLAS) Convention 130 and the 1979Search and Rescue (SAR) Convention 131 bear significant relevance in thiscontext.

Article 98(1) LOSC establishes that 'every State shall require the masterof a ship flying its fla& in so far as he can do so without serious danger tothe ship, the crew, or the passengers... to render assistance to any personfound at sea in danger of being lost' and 'to proceed to the rescue of per-sons in distress.. .'. The SOLAS Convention similarly provides that '[t]hemaster of a ship at sea which is in a position to be able to provide assist-ance, on receiving a signal from any source that persons are in distress atsea, is bound to proceed with all speed to their assistance.. ,.132 The obli-gations imposed on coastal states further comprise a duty to ensure that thenecessary arrangements are made for coast watching and for the rescue of

126 T. Spijkerboer, 'The Human Costs of Border Control' (2007) 9 IUML 137-9, at 138.127 E. de Vate, The Lia of 4aioI (London:J Chitty 1834), at 170.12 ILC, 'Commentary on Draft Art. 12 of the United Nations Convention on the High Seas', UN

doc. A/3179, 1956.12 See, among others, the 1910 Convention for the Unification of Certain Rules of Law Respecting

Assistance and Salvage at Sea, [1913] UKTS 4, and the subsequent 1989 International Convention onSalvage, (1996] UKTS 93.

130 International Convention for the Safety of Life at Sea, 1184 UNTS 278 (SOLAS). The EU isnot a Party to the IMO and has thus not acceded to the Convention, but the majority of its MemberStates have ratified it without significant reservations, save Austria, Czech Republic and Hungarywhich are not Parties. All Parties have accepted the 2004 amendments, except for Malta. See, the statusof the Convention as of 5 Aug. 2010 at: <http://wwwimo.org/indudes/blastDataOnlyasp/data-id%3D29370/Status-2010.pdfb.

131 International Convention on Maritime Search and Rescue, 405 W/7 97 (SAR4) The EU is not aParty to the IMO and has hence not acceded to the Convention, but the majority of its Member Stateshave ratified it without significant reservations, save Austr* Czech Republic and Slovaka, which arenot Parties. All Parties have accepted the 2004 amendments, except for Malta. See, the status ofthe Convention as of 5 Aug 2010 at: <http://wwwimo.og/indudes/blastDataOnly.asp/data.id%3D29370/Status-20l0.pdf>.

132 SOLAS, ch. V Regulation 33(1).

Against a Fragm tay Reading of EU Obligations Accuing at Sea 195

persons in distress at sea around their coasts. 'These arrangements shallinclude the establishment, operation and maintenance of such search andrescue facilities as are deemed practicable and necessary. .. '.133 Accordingto article 98(2) LOSC, the obligation also applies on the high seas. TheSAR Convention provides in addition for inter-state co-ordination of SARservices and for the delimitation of SAR regions in cooperation betweenContracting Parties. 134

The personal scope of application of the search and rescue obligation isuniversal. It benefits 'any person' found in distress at sea regardless ofnationality or legal status. 1 5 Discrimination on account of other circum-stances is also prohibited. 136 In regard to its territorial ambit, the obligationis due 'throughout the ocean'. 137 The use of the generic 'at sea' in article98 LOSC does not seem to allow for any geographical restrictions.13 8

Otherwise, the effectiveness of the obligation would be compromised. 13 9

As far as the material object of the obligation is concerned, it is crucialto clarify the notions of 'distress' and 'rescue'. The term 'distress' has beendefined in the SAR Convention as 'a situation wherein there is a reason-able certainty that a person, a vessel or other craft is threatened by graveand imminent danger and requires immediate assistance'. 14 Further spec-ifications have been provided in relevant jurisprudence and commentaryIn the case of The Eao it was held that distress must entail urgency, butthat 'there need not be immediate physical necessity'. 14 Subsequently, thedecision on the Kate A Hoffestablished that it is not required for the vesselto be 'dashed against the rocks' before a claim of distress can be invoked. 142

The International Law Commission has confirmed that a situation of dis-tress 'may at most include a situation of serious danger, but not necessarilyone that jeopardizes the very existence of the person concerned'.143 In thislight, unseaworthiness may per se entail distress. According to the EuropeanCommission, 80 per cent of the illegal traffic in the Mediterranean towards

'3 Ibid., Regulation 7(1).134 SAR Annex, chs. 2 and 3.135 Ibid., para. 2. 1. 10.136 Art. 11 of thc 1910 Convenioa Wt tEl Uukiiauu uf Certain Rules relating to Assistance and

Salvage at Sea, above n. 129, stipulates that the duty to assist applies to 'everybody, even though anenemy, found at sea in danger of being lost'.

37 S. N. Nandan and S. Rosenne, tatWNatimws Cm.wisx oa On Law of 1/k Sm 1982 -A C ,mmbwy,Vol. III (The Hague: Martinus Nijhofl 1995), at 177.

'38 Although art. 98 LOSC is placed in the section devoted to the regulation of the high seas, on aliteral contemplation of its wording, the reference to 'any person found at sea', instead of to 'anyperson found on the high seas', pleads for an extensive interpretation. In this line, seeJ. K. GambleJr.(e%,.Lou of &W qdesd Iao (Honolulu: University of Hawaii, 1979), at 26 1.

Pallis, above n. 112, at 337.'40 SARAnnex, para. 1.3.13.141 England High Court of Admiralty 7k Eker [1809] Edw., 135.142 Kte A. Hoffi Thv.v UaW Mexican ,.aes, above n. 116.143 Yearbook of the International Law Commission, Vol. 11 (1973), at 134, para. 4.

196 Vw/eta Moreno-Lax

the EU is undertaken in small unseaworthy vessels, such as caynos andpateros, which put the lives of its passengers 'objectively in danger'. 144 Itmay therefore be inferred that persons on board such crafts are per defini-tion in distress and a priori in need of assistance. 145 The definition of theterm in the EU Guidelines for Frontex operations, as 'a situation in whichuncertainty or apprehension exists as to the safety of a ship or of anyperson on board',10 may certainly warrant an extensive interpretation.

The notion of 'rescue' in the SAR Convention includes an 'operation toretrieve persons in distress, provide for their initial medical or other needsand to deliver them to a place of safety'. 147 Subsequent to non-rescueincidents and frequent disagreement over disembarkation, the SAR andSOLAS Conventions have been amended 14 and the content of the obli-gation further clarified.149

SinceJuly 2006, the state responsible for the SAR region in which assist-ance is rendered shall exercise 'primary responsibility' to ensure the co-operation necessary for the survivors to be 'delivered to a place of safety'. 150

Although the duty on the coastal state is limited to ensuring collaborationand does not include a commandment to allow for disembarkation onto itsoun erio, the amendments establish nonetheless an obligation of result.151

The SAR operation will not be considered accomplished unless the survi-vors are effectively disembarked.

Neither the 'place of safety' nor the concept of 'safety' itself have beendefined, though. Yet, the amendments do dearly indicate that in deter-mining such place of safety both 'the particular circumstances of the caseand [the] guidelines developed by the [International Maritime] Organization'have to be taken into account. 152

144 Improvised rafts, inflatable dinghies, or windsurf boards have been reported to the IMO ashaving been used as means of transportation. See, the Second Biannual Report, MSC.3/Circ.2,31 Oct. 2001.

14 Study on the international law instruments in relation to illegal immigration by sea, above n. 5,at 9 and 28.

16 Frontex Guidelines Decision, Annex, Part II, para. 1.2.147 SAR Annex, para. 1.3.2.14 Resolutions MSC.155(78) and MSC.153(78), 20 May 2004. Retracing the origins and

describing the prospective evolution of the current SAR regime, see, J. Coppens and E. Somers,'Towards New Rules on Disembarkation of Persons Rescued at Sea?' (2010) 25 (MCL 377.403.

149 Together with the formal amendments to the SAR and SOLAS Conventions, two furtherinstruments have been adopted to assist in the implementation of the obligations concerned: IMO,'Guidelines on the treatment of persons rescued at sea', above n. 120; and, 2006 IMO/UNHCR,Practical Guide, 'Rescue at Sea: A Guide to Principles and Practices as Applied to Migrants andRefugees', retrievable from: <http://www.imo.org/indudes/blastDataOnly.asp/data-id= 15282/UNHCRIMOleafletpersonsrescuedatsea.pdf>.

150 SAR Annex, para. 3.1.9; and, SOLAS, ch. V, Regulation 33 (1-1), (in identical terms).151 For similar opinions, see, S. Trevisanut, 'Search and Rescue Operations in the Mediterra-

nean: Factor of Cooperation or Conflict?' (2010) 25 /JMCL 523-42, at 524; and, Barnes, aboven. 81, at 139.

152 SAR Annex, para. 3.1.9; and, SOLAS, ch. V Regulation 33 (1-1), (in identical terms).

Against a F tgmmiary Rezding of EU Obigatimo Accig at Sa 197According to the IMO Guidelines on the treatment of persons rescued

at sea, a place of safety is, in principle,

a location where the rescue operation is considered to terminate. It is also aplace where the survivors' safety of life is no longer threatened and where theirbasic human needs (such as food, shelter and medical needs) can be met. Further,it is a place from which transportation arrangements can be made for thesurvivors.

15 3

It is commonplace to interpret the delivery to a place of safety as disem-barkation in the next port of call, but this practice has not yet evolvedinto a rule of customary law.1 54 Some authors, and the UNHCR, believethat the obligation on the coastal state to allow disembarkation is implicitin the maritime Conventions. 155 They assert that any other interpretationwould discourage rescue at sea, running counter the very purpose of theSAR and SOLAS Conventions. A circular of the IMO Facilitation Com-mittee adopted inJanuary 2009 seems to back this proposition, wommend-ing that '[i]f disembarkation from the rescuing ship cannot be arrangedswiftly elsewhere, the Government responsible for the SAR area shouldaccept the disembarkation of the persons rescued.., into a place ofsafety under its control.. 2.156

153 IMO Guidelines, above n. 120, par. 6.12.154 R. Barnes, 'Refugee Law at Sea' (2004) 53 ICLQ47-77, at 63, referring to the discussions held

at the 2 9 th Session of the IMO Facilitation Committee, 7-lI Jan. 2002, on the disembarkation ofstowaways. The International Convention relating to Stowaways, adopted by the Diplomatic Confer-ence on Maritime Law in Brussels on 10 Oct 1957 but never entered into force, does provide for thisrule in art.2(l), establishing that 'If on any voyage of a ship registered in or bearing the flag of a Con-tracting State a stowaway is found in a port or at sea, the Master of the ship may ... deliver the stow-away to the appropriate authority at *.fint pmt in a Contracting State at wick the shi calls after thestowaway is found, and at which he considers that the stowaway will be dealt with in accordance withthe provisions of this Convention' (emphasis added), available at. <http://wwwunhcrorg/reflvodd/topic,4565c22511,4565c25fl97,3ae6b3a80,0.html>.

15 UNHCR, 'Problems Related to the Rescue of Asylum-Seekers in Distress at Sea', UN doc. EC/SCP/18, 26 Aug 1981, paras. 19-21. See also, EXCOM Conclusion No. 23 (XXXI) , at 3: 'In accord-ance with established international practice, supported by the relevant international instruments, per-sons rescued at sea should normally be disembarked at the next port of call. This practice should alsobe applied in the case of asylum-seekers rescued at sea'.

tC.ai,-1.... . C.'194V 'nies relating to adminis.r- m poccdJurcs for disembari-x-gpersons rescued at sea', 14 Jan. 2009, Note that Malta has objected not only to the circular (see,FAL35/WP.5, 'Formalities connected with the Arrival, Stay and Departure of Persons', 14Jan. 2009),but also to the 2004 amendments to the SAR and SOLAS Conventions and is, therefore, not bound bythem. Due to its large SAR Region, Malta favours the 'dosest-safe-haven' rule for disembarkation overthe 'State-responsible-of-the-SAR-Region-wher-the-persons-were-rescued' criterion. See the coun-ter-proposal by Malta to the FAL Committee, FSI.L 7/15/2, 'Measures to protect the safety of personsrescued at sea: comments on document FSI. 17 /15/ ', 27 Feb. 2009, submitted in reaction to an earlierproposal by Italy and Spain to clarify the SAR and SOLAS amendments in document FSI.17/15/l,'Measures to protect the safety of persons rescued at se compulsory guidelines for the treatmentof persons rescued at sea', 13 Feb. 2009. Both the joint Italian/Spanish submission and the counter-proposal by Malta have finally been rejected in COMSAR.14/17, 'Report to the Maritime SafetyCommittee', 22 Mar. 2010, paras. 10.1-26. The end-result is that the 2004 SAR and SOLAS amend-ments remain intact.

198 Vtoeta Moreno-Lax

The absence in the law of the sea of a rule designating a specific port ofdisembarkation, leaving it to the states involved in the SAR operation toprovide for ad ho arrangements every time, has been characterised by theEuropean Commission as an important lacuna. 157 Therefore, in theGuidelines for Frontex operations at sea it is proposed that the operationalplan of each mission 'spell[s] out the modalities for the disembarkation ofthe persons intercepted or rescued, in accordance with international lawand any applicable bilateral agreements'.15 8 Subject only to the limitationthat the operational plan may not have the effect of imposing obligationson Member States not participating in the operation, intervening MemberStates may freely decide on the applicable conditions. 159 Unless otherwisespecified, the Guidelines suggest that priority be given to disembarkationin the third country from which the interdicted ship departed or throughthe territorial waters or SAR region of which it transited. If this is not pos-sible, disembarkation should take place in the Member State hosting theFrontex operation, unless a different course of action proves necessary toensure the safety of the persons involved.16 0

However, the benefits of a system pre-determining the place of safetyare not straightforward. The notion of 'safety' has no single meaning andthe arrangements made in regard to some of those rescued may not bevalid for others. The fact that the 'place of safety' is not pre-defined in themaritime Conventions is precisely what allows for 'taking into accountthe particular circumstances of the case' lt 1 alongside 'other rules ofinternational law' in conformity with which the law of the sea is to beinterpreted. 62 As established by the IMO Guidelines:

[t]hese circumstances may include factors such as the situation on board the assist-ing ship, on scene conditions, medical needs, and availability of transportation or

157 Study on the international law instruments in relation to illegal immigration by sea, above n. 5,

at 4 and 6.158 Frontex Guidelines Decision, Annex, Part II, para. 2.1.

15 On this point, see the answer by Commissioner MaistrOm in the interview published in 77mTws of Mdaa, 'So Malta would not be left alone', 30 Apr. 2010, where she explains that '[t]here is...the possibiity before a mission starts, that participating Member States agree on other rules of engage-ment... [than the ones introduced in the guidelines]', available at: <http://wwwtimesofmalta.com/artides/view/20100430/local/so-malta-wold-not-be-left-alone>.

160 Frontex Guidelines Decision, Annex, Part I, para. 2.1. On account of this last proposition,Malta has opposed fierce resistance to the Guidelines throughout the negotiation process, warningthat it would not participate in future Frontex operations if they were adopted (see, M. Carabott'Malta and Frontex missions: 'No chance if the rules are changed"', T76 Malta Indepmnet, 4 Feb.2010, available at: <http://www.independent.com.mt/news.aspnewsitemid 101119>). Subse-quent to their adoption in Apr. 2010, Frontex patrols in the central Mediterranean have beendiscontinued (see, 'Frontex patrols stopped as Malta quits', Taes of Malta, 28 Apr. 2010, availableat: <http://www.timesofmalta com/artides/view/20100428/local/frontex-patmls-stopped-as-malta-quits>).

16t SAR Annex, para. 3.1.9; and, SOLAS, ch. V, Regulation 33 (1-1).162 Art 2(3) and 87(l) LOSC.

Against a Fragmentary Reading of EU Obligations Accruing at Sea 199

other rescue units. Each case is unique, and selection of a place of safety may needto account for a variety of important factors. 163

Only a case-by-case approach leaves enough room for the particularitiesof each situation and for any entitlements of the survivors to be takeninto account. Safety bears different meanings when applied to differentcategories of rescuees. Whereas it may simply relate to the passengers'immediate well-being, considering shipwrecked persons in general, whenthe notion concerns refugees and asylum seekers, in particular, theirspecial position has to be taken into account.16 4

As underlined in the IMO Guidelines, '[t]he need to avoid disembark-ation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened is a consideration in thecase of asylum-seekers and refugees recovered at sea'. 165 Therefore, 'Statescannot circumvent refugee law and human rights requirements by de-claring border control measures - that is, the interception, turning back,redirecting etc. of refugee boats - to be rescue measures'. 166 In relation toasylum seekers, an adequate interpretation requires search and rescue obli-gations to be read jointly with the requirements of refugee law and humanrights law. 16 7 Launching maritime operations with the objective of stop-ping 'migrants from leaving the shores on the long sea journey and thusreducing the danger of losses of human lives' 16 constitutes a misconceptionof search and rescue obligations. Equating interception to search and rescuemeasures and separating them from their human rights implications doesnot find any backing in international law In the same way, disembarkation

63 IMO Guidelines, above n. 120, para. 6.15. See also, par. 1.3, Part II, Annex, Frontex Guide-lines Decision. Among the difcrent elements considered relevant to thc assessment of a distress situ-ation, para. 1.3 lists a number of factors: the seaworthiness of the vessel; the number of passengers onboard; the availability of supplies; the presence of qualified crew and navigational equipment; theprevailing weather and sea conditions; and the presence of particularly vulnerable, injured, or deceasedpersnsr

in See the Speech by the IMO Secretary-General of 19 Nov 200 1, when the reform of the SOLASand SAR Convention was being launched, suggesting that a holistic approach should be adopted withregard to the treatment of asylum seekers and refugees retrieved at sea: <http://wwwino.org/Newsroom/mainframe.asptopicid=82&docjd= 1703>. See also, the FAL Committee Principles onthe administrative procedures relating to disembarkation, positing that '[r]escued asylum seekersshould be referred to the responsible asylum authority for an examination of their asylum request(upon rescue]' and that '[ijnternational protection principles as set out in international instrumentsshould be followed', above n. 156, paras. 4-5.

165 FAL Committee Principles, ibid., para. 6.17. Note that the UN General Assembly has subse-quently endorsed these guidelines in: UN doc. A/RES/61/222, 16 Man 2007,

166 A. Fscher-Lescano, T Lohr and T. Tohidipur, 'Border Controls at Sea: Requirements underInternational Human Rights and Refugee Law' (2009) 21 LJRL 256-96, at 291.

167 For concurrent opinions, see, R. Weinzied and U Lisson, BenJMmqowt and Hxas= R -A&m* of EULav and du Lao of the So, German Institute for Human Righ Dec. 2007; S. Trevisanut,'The Principle of JVen-R faumW at Sea and the Effectiveness of Asylum Protection' (2008) 12 MaxRanc rwbeok of Untd NAtins Law 205-46; K. Wouters and M. Den Heijer, 'The Marin I Case: AComment' (2010) 22 J7RL 1-19.

168 'A sequel of operation Herajust starting', above n. 43.

200 VFwleta Moreno-Lax

in a pre-determined place - in Senegal, Mauritania or Cape Verde, as inthe Hera operations; or in Libya, as in the case of the Italian push-backscheme - disregarding the particular requirements determining the safetyof the asylum seekers on board, may not only amount to a direct breach ofthe protection obligations of the EU Member States, but also to a malafjeimplementation of maritime law itself.169

5. Co-operation with third countries, extraterritorialit,and non-refoumentStates cannot exercise sovereign powers in the territorial sea of a thirdcountry without the latter's consent. The Hera operations have taken thebilateral arrangements entered into by Spain with Senegal and Mauri-tania as their legal basis, whereas the push-back campaign orchestratedby Italy is underpinned by a treaty concluded with Libya. Beyond theissue of whether unpublished bilateral agreements concluded by a singleMember State and a third country provide a sufficient legal basis in eitherinternational or European law to allow other Member States and Frontexto take part in such operations, 170 other substantive concerns arise fromthe current situation.

Member states and Frontex appear to believe that the responsibilityfor possible breaches of human rights and refugee law occurring in thecourse of, or as a result of, joint patrols belongs exclusively to the thirdcountry in whose territorial waters the operation was carried out. Theconsent by Senegal, Mauritania or Libya to allow the joint patrolling oftheir territorial waters17! and the diversion of 'would-be immigrants'boats back to their points of departure from a certain distance of theAfrican coast line 72 does not relieve EU Member States of theirresponsibilities under international law. The fact that '[a] Mauritanianor Senegalese law enforcement officer is always present on board ofdeployed Member States' assets' 173 or that 'members of the Libyan coastguard ... take part in patrols on [Italian] ships" 74 does not readilyamount to making them 'always responsible for the diversion'1 75 as itseems to be understood.

169 On the 'effective implementation' of international obligations, see, IC LaGrad Can (Gm aUSA) (Mails), ICJ Rep 2001, from para. 77.

170 For a discussion on bilateral agreements as miaNaies ad and multiple references on this point,see, E. Papastavridis, "Fortress Europe" and FRONTEX: Within or Without International Law?'(2010) 79 JQIL 75-111, at 89, referring in particular to I. Sinclair, w im Camnin = thu Law ofTresda (Manchester. Manchester University Press, 2"d ed., 1984), at 98.

171 'Libya can process asylum seekers', above n, 58.172 'HERA 2008 and NAUTILUS 2008 Statistics', above n. 45.17 Ibid.

74 'Libya can process asylum seekers', above n. 58.175 'HERA 2008 and NAUTILUS 2008 Statistics', above n. 45.

Against a Fragmntar Rdig of EU Obl.tions Acacqig at Sea 201

Under international law,176 'no State can avoid responsibility by out-sourcing or contracting out its obligations, either to another State, or to aninternational organisation'. 177 International co-operation to block passageto vessels and hand them over to the national authorities of the thirdcountry concerned does not release EU Member States from their inter-national engagements; nor does the transfer of competences to inter-national bodies. The Strasbourg Court has established in this connectionthat:

[a] bsolving Contracting States completely from their... responsibility in the areascovered by such a transfer would be incompatible with the purpose and object ofthe [ECHR]: the guarantees of the Convention could be limited or excluded atwill thereby depriving it of its peremptory character and undermining the prac-tical and effective nature of its safeguards. 178

Accordingly, EU Member States taking part in joint patrols cannotavoid responsibility under the European Convention on Human Rightsby transferring powers to Frontex.

The Strasbourg Court has equally held that:

[w]here States establish... international agreements to pursue co-operation incertain fields of activities, there may be implications for the protection of funda-mental rights. It would be incompatible with the purpose and object of the[ECHR] if Contracting States were thereby absolved from their responsibilityunder the Convention in relation to the field of activity covered by such[agreements]. 179

The Court also considers that '[i]n so far as any liability under the Con-vention is or may be incurred, it is liability incurred by the ContractingState.... 180 The fact that Senegal, Mauritania and Libya, with whichthe EU Member States collaborate, are not parties to the ECHR preventstheir liability under this instrument. Although Senegal, Mauritania andLibya may well be responsible for the same internationally wrongful actunder other instruments to which they are Parties, when a plurality ofstates is responsible for the same wrongful act the general rule is that 'insuch cases each State is separately responsible for the conduct attributable

176 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, (2001)

UNGA A/56/10, corrected by A/56/49(VoL )/Corr.4. The majority of these provisions are consid-ered to reflect the current state of customary law. See, for instance, ICJ, Application of the Conventionon the Prevention and Punishment of the Crime of Genocide (Basia and Haerzccia a Serbia andMoasnger)', [2007] Gen. List No. 91, paras. 173, 385 and 388.

7 G. S. Goodwin-Gill, he Extraterritorial Processing of Claims to Asylum or Protection: TheLegal Responsibilities of States and International Organisations' (2007) 9 UTSLaw Raes 26-40,at 34.

178 ECtHR, Beorspw abdahd= AppL No. 45036/98, 30June 2005, para. 154.179 ECtHR, T. a U4t AppL No. 43844/98, 7 Mar. 2000, at 15; and, I.R.S a UA Appl. No.

32733/08, 2 Dec. 2008, at 15.180 ECtHR, SuW a U4 37201/06, 28 Feb. 2008, para. 126.

202 ,wklta MorWo-Lax

to it, and that responsibility is not diminished or reduced by the fact thatone or more other States are also responsible for the same act'. 181 Thus,with regard to the human rights violations that may result from jointmaritime operations, the independent responsibility of each participatingEU Member State may be invoked.182

This is how the Court proceeded in Xkavara, attributing exclusiveresponsibility to Italy for the acts it perpetrated in international waters asa result of the convention concluded with Albania authorising it to patrolboth international and Albanian waters for the purpose of migration con-trol. The Court explicitly established that, because the shipwreck had beendirectly provoked by the Italian navy any complaint in this regard had tobe considered to be addressed exclusively against Italy. In this way, legalaccountability was matched with responsibility for actual facts. The Courtmade clear that the mere fact that Albania was a Party to a bilateral con-vention with Italy could not engage its responsibility with regard to theECHR for every measure that the Italian authorities might adopt for theimplementation of the agreement in question.183 An analogous reasoningwas applied in Mavdyen. The fact that the flag state had consented througha diplomatic note 'to intercept, inspect and take legal action' against theWumer, suspected of being engaged in illicit drug trafficking while navi-gating through the waters off Cape Verde, did not prevent the EuropeanCourt of Human Rights from finding France responsible for a violation ofarticle 5 ECHR on account of the illegal arrest of the crew.

Although jurisdiction in international law is generally framed territori-ally,'84 extraterritoriality does not prevent human rights obligations frombeing engaged in particular circumstances. The underlying rationale is to

181 Special Rapporteur J. Crawford, 'Commentary to the Draft Articles on State Responsibilit%International Law Commission', Annual Report (2001), ch. IV, at 314, available at: <http://wwwdcil.cam.ac.uk/Media/ILCSR/ILC2001chpt Vpdf,. Art. 47 of the ILO Articles on State Responsibilityabove n. 176, stipulates that '[w]here several States are responsible for the same internationally wrong-fii act, the responsibility of cad State may be invoked in relation to that act' (emphasis added).18 According to art. 6 of the ILW Articles on State Responsibilit, '[t]he conduct of an organ

placed at the disposal of a State by another State shall be considered an act of the former State underinternational law if the organ is acting in the exercise of elements of the governmental authority of theState at whose disposal it is placed'. The ILC commentary clarifies that the words 'placed at the dis-posal of' entail the 'exclusive direction and control' of the receiving state over the organs of the send-ing state, Therefore, situations of mere cooperation or mutual assistance fall outside the purview of thisprovision.

vas u p, above n. 125, at 5: 'a CoarwAe d'm/bk qwakxafi... a N dinvtea m puwadpar & nae de gn eftim SW&ila h wns 4 l d ar &p dit ha mide c,&W 4 diti$exdWu acfe IPlt&. Lefait qw Plbaffi partid Is Cwnvamm d idbl wise nesami 4 tai se4 ala we==ei I d ca L w au eg d d a & Cavaan pm ae nmaw ad par Its mxits iin a exkudeode dinOrdaidanaond ques6wo

184 There are some exceptional 'recognised instances' of the extraterritorial exercise of jurisdictionby a state, which include, precisely cases involving the activities of state agents abroad at its embassiesor Ion board craft and vessels registered in, or flying the flag of, that State'. See, ECtHR, Ba&n* &. aBftiva &&, Appl. No. 52207/99, 12 Dec. 2001, para. 73.

Against a Fragmmeay Reading of EU Obligations Accwig at Sea 203

prevent a double standard from arising. In the words of the Human RightsCommittee, it would be 'unconscionable' to interpret responsibility underhuman rights instruments as to 'permit a State Party to perpetrate viola-tions... on the territory of another State, which violations it could notperpetrate on its own territory' 185 In these situations human rights bodiesconsider the exercise of 'effective control' over the territory 86 or the per-sons concerned 187 to be the crucial element giving rise to state responsi-bility.188 In Medvd , the Court noted that precisely from the date onwhich the Winner was arrested and until it arrived in Brest, 'the Wimner andits crew were under the control of French military forces, so that eventhough they were outside French territory, they were within the jurisdictionof France for the purposes of article 1 of the Convention'. 189

What may remain unclear is whether situations other than thoseamounting to detention or arrest constitute an exercise of control over per-sons on board vessels sufficient to trigger human rights responsibility. In thisregard, the Committee against Torture provides valuable guidance. Its deci-sion in the Marie I case offers an example of human rights responsibility

18 HRC, Dia Sa&&as dez~peBeosa Jgku, , Communication No. 52/1979, 29July 1981, paras.12.1-.3; Lilian CPO"de Casaneg a lMgy, Communication No. 56/1979, 29July 1981, pan. 10.3.The ECtHR has borrowed from the HRC, concluding that: Artide 1 of the Convention cannot beinterpreted so as to allow a State party to perpetrate violations of the Convention on the territory ofanother State, which it could not perpetrate on its own territory', Issa and Other o Tigy, Appl. No.31821/96, 16 Nov. 2004, para. 71; Isaak v Thk, Appl. No. 44587/98, 28 Sept. 2006, at 19; Soluno aTwk, Appl. No. 36832/97, 24 June 2008, para. 45; Andea a To, Appl. No. 45653/99, 3 June2008, at 10; and Al-&iadook and Mfd a Uited Lgdom, AppL No. 61490/08, 30june 2009, pan. 85(confirmed injudgment of 2 Mar. 2010).

186 ECtHR, Laizidoa a TW/, Appl. No. 15318/89, 23 Mar. 1995; C)ps a Tciy, Appl. No.25781/94, 10 May 2001; BaWk a.&.ua degimi a.&, above n. 184, para. 70.

187 1ssa and OAe a T/c, above n. 185; Oc4aan a Twiay, Appl. No 46221/99,12 May 2005; HRC,Ddia Saldias de Lpee Baros, above n. 185; Lilian Celi de Casarieo, above n. 185; General CommentNo. 31, CCPR/C/21/Rev.I/Add. 13, 26 May 2004, par. 10; Inter-Am. CHR, Coard ae. a UnitedS.tes, Case 10.951, Report No. 109/99, paras. 37-43.

18 The ICJ has confirmed that the International Covenant on Civil and Political Rights 'is applic-able in respect of acts done by a State in the exercise of its jurisdiction outside its own territory' in theL a Consoqences of du Clnsbrdion of a Wa//in te OeuffidPakstmian Tniy, [2004] ICJ Gen. List No.131, para. 111. See also, ICJ, Cas Concernq Armed Actiiies on dke Tr..7 of AW Cng (DAC a Ug nda),[2005] ICJ Gen. List No. 116, para. 180; and, Order on * R qestfor & Indicdaon of PisioMeanreCase Conernirg the Appcaaion of due Internaional Convention on tile Elmination of Aft &nss of Acial Diarm-ination (Georgia a Russia), [2008] ICJ Gen. List No. 140, para. 109. For commentary see, E. Guild,S&"rf~ and Ear"pa Hianan Rights Frotcn Individal RWgit in imes of E=cetio and Miltar Action(Nijmegen: Wolf Legal Publishers, 2007); M. Gondek, The Rom/i of Hienuo RWW i a Globali 146r/E-ateriariatlAppiation of Human Right Trats (Antwerp/Oxford/Portland: Intersentia, 2009); G. S.Goodwin-Gill, The Extra-Territorial Reach of Human Rights Obligations: A Brief Perspective on theLink toJusisdiction' in L Boisson de Chazournes and M. Kohen (eds), hIanatennl Lame and he Qpestfirits Ilatntalua - LirAAmimn Va Gowtand-DOhas (Leiden/Boston: Brill, 2010), 293-308.

Mededa/rv above n. 95, pan. 50. The Grand Chamber has corroborated in itsJudgment of 29Ma. 2010 in para. 67 that, because France had exercised 'full and exclusive control over the Winerand its crew . . from the time of its interception in a continuous and uninterrupted manner until theywere tried in France, the applicants were effectively within France's jurisdiction for the purposes ofArticle I of the Convention' (references omitted).

204 Vowlea Moreno-Lax

being engaged by a single state in a search and rescue operation carriedout extraterritorially in co-operation with other countries. The incidentinvolved the recovery of 369 migrants of Asian and African origin by theSpanish authorities off the Mauritanian coast. In spite of the agreementconcluded between the governments of both countries and the furthercollaboration undertaken with third states in the process, the Committee con-sidered that it was Spain that 'maintained control over the persons onboard the Mane Ifrom the time the vessel was rescued and throughout theidentification and repatriation process that took place at Nouadhibou'. Byvirtue of that 'constant defacto control', the Committee, relying on its priorjurisprudence, 190 considered that the alleged victims were subject to Span-ish jurisdiction for the purposes of the CAT.191 Jurisdiction was consideredto be exercised not only on account of the arrangements subsequent todisembarkation, but from the very moment the vessel was rescued. AsWouters and Den Heijer show, what follows from this case law is that 'theassertion of physical control over vessels and/or their passengers is suffi-dent to engage the "controlling" State's human rights obligations'. 192

Nothing a to impede the extension of this reasoning to non-re9fwemtobligations.'19 Article 33(1) of the Refugee Convention should hence bedeemed to apply wherever a Signatory Party exercises 'effective control'. 1At face value, 'the decision generally to constrain the application of rightson a territorial or other basis [im the Refugee Convention] creates a pre-sumption that no such limitation was intended to govern the applicabilityof the rights not subject to such textual limitations'.195 On a literal con-templation of the terms in which the different articles of the Refugee Con-vention have been drafted, refugee rights seem, indeed, to arise progressivelyThe stronger the level of attachment to the country of refuge, the higherbecomes the level of protection. The enjoyment of some rights thusrequires 'residence',' 19 others 'legal stay" 97 or 'legal presence', 198 whereasothers accrue on the basis of 'simple presence' in the territory of the

190 CAT Committee, General Comment No. 2, CAT/C/GC/2, 24Jan. 2008, para. 16.191 CAT CommitteJHJ4.H. . O Communication No. 323/2007, 10 Nom 2008, para. 8.2.19 Wouters and Den Heijer, above n. 167, at 10.193 For a detailed analysis, see, V Moreno-Lax, '(Extraterritorial) Entry Controls and (Extraterri-

torial) JNon-Rf4olaw in EU Law' in M-C. Foblets, D. Vanheule and P De Bruycker (eds.), The EawnlDim(s) of EUyAVI and I-woi Npy (Brussel Bruylant, forthcominq.

194 E. Lauterpacht and D. Bethlehem, 'The Scope and Content of the Principle of Non-RfudamOpinion' in E. Feller, V Turk and E Nicholson (eds.), ROW Ptecon in Imnationl Law UNIHCR iGlobl Conwation on iradiad aPro"= (Cambridge: CUP, 2003), 87-177.

195 J. C. Hathaway, The RW& of Rq mdr In&ainl Law (C ambridge: CUP, 2005), at 161,'9 For instance: art. 7(2) (exemption from reciprocity); art. 14 (artistic rights); art. 16(2) (caado

judicaft sda).197 Among others: art. 15 (right of association); art. 17 (employment); art. 19 (access to liberal

professions); art. 21 (housing).198 For example: art. 26 (freedom of movement); art. 32 (protection against expulsion); art. 18

(self-employment).

Against a Fragmentary Reading of EU Oblgation Accning at Sea 205

country of refuge.199 Only a core of very essential rights, worded in ageneric fashion, is not predicated on any territorial or other material linkNon-discrimination amongst refugees,200 access to courts, 20 1 and non-r~foulmen#02 belong to this category of entitlements addressed broadly toall refugees. As a result, any refugee coming under the jurisdiction of aSignatory Party to the Refugee Convention, whether territorially or extra-territorially, shall enjoy the protection of the prohibition of nom-refiulementinscribed in article 33(1).

The Supreme Court of the United States considered, nonetheless, thatthe Convention did not apply with regard to the Haitian interdiction programcarried out by the US Coast Guard on the high seas.203 The Court adoptedthe view that prior access to territory was crucial to the reach of article33(1) CSR. Based on an ambiguous reading of the text of the Conventionand its travauxprieratires, the Sale decision has been severely criticized. 204

Commentators are practically unanimous in their disapproval20 5 and sub-sequent jurisprudence has also rejected its approach. The passages fromthe ravaux relied upon by the majority of the Court are directly contra-dicted by other passages. 'IT]hey make clear words unclear', 206 leading tothe unsustainable proposition that Signatory Parties may exercise extrater-ritorial jurisdiction to return refugees to a place of persecution, contrary tothe ordinary meaning of the language of article 33(1) CSR.

In response to Sae, the Inter-American Commission on Human Rightsasserted 'that article 33 had no geographical limitations', 20 7 establishingthat the US was in breach of its international obligation of non-rfiuementwhen intercepting Haitians and returning them back without a properassessment of their particular circumstances. In the same vein, the EnglishCourt of Appeal declared that Sal was 'wrongly decided', concluding that'it is impermissible to return refugees from the high seas to their country of

199 Like art. 31 (exemption from penalties on account of illegal entry) or art. 4 (freedom of religion).200 CSR, art. 3.201 Ibid., art. 16(1).202 Ibid., art. 33(1).20 Cvu Sat Ati mum hmu adatain &'icNe et aL a Haian CAW Ca I=n

dtaL (1993] 509 US 155.2 UNHCR, Amicus Curiae Brief in Sale, 21 Dec. 1992; 'UN High Commissioner for Refugees

responds to US. Supreme Court Decision in Sae a. Haitian Centm Cown' (1993) 32 ILM 1215;+Advisory Opinion on the Extraterritorial Application of Nn-'4PuWmemt Obligations under the 1951Convention relating to the Status of Refugees and its 1967 Protocol', 26Jan. 2007, para. 24.

2 G. S, Goodwin-Gill, 'The Haitian Robulant Case: A Comment' (1994)6 IJRL 103-90; B. Frelick,"Albundantly Clear": Rqdm., (2004) 19 Geowm Inmm*aoia U 245-76; S. H. Legomsky, 'TheUSA and the Caribbean Interdiction Program' (2006) 18 IJRL 679-83;J.-Y Carier; !Dmi d'aWie et desrffidst: de /a proeion aux dmits (Collected Courses of The Hague Academy of International LaK Vol.332, 2007), at 107 and further references therein.

20 P Mathe% 'Legal Issues Concerning Interception' (2003) 17 Geowea hw /aon U 221-49.207 Inter-Am. CHR, 7T Haia CmfarHnan R Aet a Un d Sats, Case 10.675, Report No.

51/96, para. 157.

206 Vwleta Moreno-Lax

origin'. 208 The majority of their Lordships in the judgment on the PragueAirport case have also retained this reading.2° 9 In fact, what matters is towhere the refugee cannot be sent,fom where the action is initiated is super-fluous.

2 10

During the Hera operations, 'more than 1,000 migrants were divertedback to their points of departure at ports at the West African coast' 211

presumably before any asylum claims had been considered. At thesame time, the European Commission's evaluation reveals that the'experiences gained from joint operations show that border guards arefrequently confronted with situations involving persons seeking inter-national protection...,. 212 With regard to the Italian push-backs, accord-ing to UNHCR, between May andjuly 2009 'at least 900 people' 213 weresent back to Libya 'without proper assessment of their possible protec-tion needs'. 214 Apparently, a significant number from this group was inclear need of international protection. 215 Although diversion is notalways synonymous with rnfiude4 where it causes the return - directly orindirectly - to the territories where life or freedom is threatened onaccount of race, religion, nationality, membership of a particular socialgroup or political opinion it does violate article 33(1) of the RefugeeConvention.

However, the applicability of artide 33 CSR depends on the personconcerned meeting the qualification criteria in article 1 CSR, whichincludes being outside the country of his nationality or former habitualresidence. Therefore, if interdiction occurs within the state of origin, theRefugee Convention does not apply 216 Although 'would-be refugees', in-side their country of origin, cannot enjoy the protection of the RefugeeConvention, they may benefit from other human rights instruments. Article 3ECHR, for instance, as construed by the Strasbourg organs, grants protec-tion against rfosudment to everyone within the jurisdiction of a ContractingState, regardless of his physical location. Having crossed an internationalfrontier is not a prerequisite for the European Convention on HumanRights to apply

oe R (Ea~pean Rom Rights Cub and Othr) ioAvO TtzaeAirlt [2003] EWCA Civ

666, para. 34-5.209 Aq-n v. ImneVat= OfQicf at RPque Aiupo end -no'-e (Raspndut) -x p" Ewopun Rone Rijh

Cus end ot/ r (App lt), [2004] UKHL 55. The exclamation by Lord Hope of Craighead 'that theSea case was [not] wrongly decided' emerges as an isolated position in para. 68.

210 Goodwin-Gill and McAdam, above n. I 1, at 250.211 'HERA III Operation', above n. 44.212 Report on the evaluation and future development of the FRONTEX Agency, above n. 68, at 5.213 'UNHCR interviews asylum seekers pushed back to Liby', above n. 1.214 'UNHCR deeply concerned over returns from Italy to Libya', above n. 1.215 'UNHCR interviews asylum seekers pushed back to Libya', above n. 1.216 _ V IhMn ),zti Qfic at O p enAr d _Gohe (Resond) a_ par& Ewopa Rom ROt

Coft and other (Appalmznt)J above n. 20W, pama 18.

Against a FraWumta Rading of EU Obligations Accruing at Sea 207The extraterritorial applicability of the 'Swing principle'217 was already

established in 1992.218 At the time, the European Commission of HumanRights was confronted with a case involving eighteen citizens from theDDR wishing to emigrate to the West. As permission was refused, WMand his companions entered the Danish Embassy to request mediationwith the German authorities. The ambassador asked them to leave and, asthey did not obey, he requested the assistance of the DDR police to removethem from his premises. At their hands WM was allegedly subject to arbi-trary detention. Even if 'the applicant was not deprived of his liberty...by an act of the Danish diplomatic authorities but by an act of the DDRauthorities', the Commission declared itself 'satisfied that the acts of theDanish ambassador complained of affected persons within the jurisdictionof the Danish authorities within the meaning of article 1 of the Conven-tion'. Borrowing from Soig, it pointed out that:

an act or omission of a Party to the Convention may exceptionally engage theresponsibility of that State for acts of a State not party to the Convention wherethe person in question had suffered or risks suffering a flagrant denial of the guar-antees and rights secured to him under the Convention.

Because what happened to the applicant at the hands of the DDRauthorities could not be considered to be 'so exceptional' as to engagethe responsibility of Denmark, the claim was ultimately dismissed.219

Arguably, no 'substantial grounds' had been shown for believing thatWM, when rfiuled, faced 'a real risk' of being subjected to torture or toinhuman or degrading treatment or punishment in the DDR.220

A comparable case on the extraterritorial applicability of the Soeingprinciple to the acts of the British army in Iraq has been decided by theStrasbourg Court.221 The case concerned two Iraqi nationals affiliatedto the Ba'ath Party, allegedly involved in the murder of two British ser-vicemen. The applicants were held in detention in a military prison run bythe UK forces in Basra from 2003 up to their surrender to the Iraqi author-ities in December 2008 for a trial at which they risked the death penalty.Despite the extraterritorial setting of the case, the Court declared theclaim admissible, considering that, given the 'total and exdusive' control

217 ECtHR, Sw*ig bWW]atd bom, Appl. No. 14038/88, 7Ju1y1989, para. 91: 'the decision by aContracting State to extradite a fugitive may give rise to an issue under article 3, and hence engage theresponsibility of that State under the Convention, where substantial grounds have been shown forbelieving that the person concerned, if extradited, faces a real risk of being subjected to torture or toinhuman or degrading treatment or punishment in the requesting country'.

218 ECommHR, WMa Dmrnaak Appl. No. 17392/90, 14 Oct.1992.219 Ibid., at THE LAW', para. 1.

0 Mutatrmaaari ECtHR, above n. 217,221 Al-&udow aInd Mfd above n. 19 (final on 4 Oct. 2010, after dismissal of the referral to the

Grand Chamber in: <http://cmiskp.echrcoeint/tkpl97/viewhbkm.aspsessionld=60785589&skin=hudoc-en&action=open&table=F69A27FD8FB86142BF01C! 166DEA398649&key=85738>).

208 Vwkta Mmo-Lax

the British authorities exercised over the premises in question, 'the indi-viduals detained there... were within the United Kingdom's jurisdic-tion'. 222 In its ruling the Court established that, like artide 3 ECHR,articles 2 ECHR and 1 of Protocol No. 13 ECHR similarly preclude 'theextradition or deportation of an individual to another State where sub-stantial grounds have been shown for believing that he or she would face areal risk of being subjected to the death penalty there'. 223 In the absenceof a binding assurance that capital punishment would not be imposed, theCourt concluded that 'through the actions and inaction of the UnitedKingdom authorities the applicants [were] subjected.., to the fear of exe-cution by the Iraqi authorities ... causing [them] psychological sufferingof [such] nature and degree [that it] constituted inhuman treatment', inbreach of article 3 of the Convention. 224

EU law also includes a reference to non-rafoukent. The SchengenBorders Code alludes, in its preamble, to the rights and principles 'recog-nized in particular by the Charter of Fundamental Rights of the EuropeanUnion' and submits its implementation to the observation of 'the MemberStates' obligations as regards international protection and non-refoi/ mn.In the operative part, article 3 holds that the Code is to be applied 'withoutprejudice to the rights of refugees..., in particular as regards no-Tfe .Article 5(4)(c), in turn, allows for derogations to normal entry requirementson account of humanitarian considerations and international obligations.Finally, article 13(1) establishes that entry refusals 'shall be without preju-dice to the application of special provisions concerning the right of asylumand to international protection'. The Frontex Regulation supposedly'respects the fundamental rights and observes the principles recognised byarticle 6... of the Treaty on European Union and reflected in the Charter ofFundamental Rights of the European Union'. 5 The RABIT amendmentreiterates the need to conform to fundamental rights and annnei 226

The content of non-refiu/ment in this framework has yet to be deter-mined by the Court of Justice of the EU (CJEU). Meanwhile, article 6 EUand the EU Charter of Fundamental Rights, to which those instrumentsrefer, offer assistance in establishing it.227 Two provisions are particularlyrelevant for our purposes. On the one hand, article 18 EUCFR stipulatesthat the right to asylum shall be guaranteed with due respect for the rules

M See, the admissibility decision of 30June 2009, para. 88.223 A/-Sawedm andMWfd, above n. 19, para. 123.2" Ibid., para. 143-4.22 Recital 22 of the Frontex Regulation.2 Recitall 7 and 18 and arts. 2 and 12(6) of the RAB1T Regulation.227 According to Recital 5 in the Preamble, the Charter 'reaffim... the rights as they result, in

particular, from the constitutional traditions and international obligations common to the MemberStates, the European Convention for the Protection of Human Rights and Fundamental Freedoms,the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Courtof Justice of the European Union and of the European Court of Human Rights'.

Against a Fragmentary Reading of EU Oblations Accuing at Sea 209

of the Refugee Convention and in accordance with the EU Treaties. Theexplanations of the Presidium, in conformity with which the Charter is tobe interpreted, 228 clarify that this wording is based on article 78 TFEU,'which requires the Union to respect the Geneva Convention on refu-gees'.229 As a result the 'right to asylum' in EU law shall include, at aminimum, a right to protection against refoument as established in article33(1) CSR.230 Article 19(2) EUCFR, on the other hand, establishing that'[n]o one may be removed, expelled or extradited to a State where there isa serious risk that he or she would be subjected to the death penalty, tor-ture or other inhuman or degrading treatment or punishment', incorpo-rates the Strasbourg case law on article 3 ECHR.23 1

Having identified the minimum content that the principle of nmn-rJulanshall comport in this context, it still remains to be determined whether theborder acquis may apply extraterritorially. In principle, articles 52 EU and355 TFEU define the scope of application ratiom . d of the foundingTreaties in territorial terms. However, the ECJ has given these provisions abroad interpretation. Thus, free movement rules have been construed ex-tensively and declared to apply to 'all legal relationships in so far as theserelationships, by reason either of the place where they are entered into orof the place where they take effect, can be located within the territory ofthe Community' 232 or otherwise retain 'a sufficiently dose link with thatterritory'. 233 Transport policy and maritime regulations have equally beenheld to apply abroad to all maritime zones over which Member Statesexercise sovereign rights in accordance with the law of the sea.234 If a suf-ficient connection to EU law is provided, it seems that '[t]he geographicalapplication of the Treaty [as] defined in Article [52 EU] ... does not, how-ever, preclude Community rules from having effects outside the territoryof the Community'. 235

2 Art 52(7) EUCFR. 'The explanations drawn up as a way of providing guidance in the interpret-ation of this Charter shall be given due regard by the courts of the Union and of the Member States'.

229 Explanations Relating to the Charter of Fundamental Rights, [2007] 0OJ C 303/17, at 24(Exanations to the EUCFR).

The content of the 'right to asylum' in article 18 EUCFR has elicited a rich debate. Someauthors read in it a right to saek asylum, see, C. Harve% 'The Right to Seek Asylum in the EuropeanUnion' (2004) 1 EHRLR 17-36. Other authors ascertain a right to begmabasylum, see, M.-T. Gil-Bazo,'The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum inthe Union's Law' (2008) 27 RSQ 33-52.

231 Explanations to the EUCFR, above n. 229, at 24.232 ECJ, Union (* laenmalne, 36/74, (1974] ECR 1405, par. 28. See also, Pdat, 237/83,

[1984] ECR 3153, par. 6, deducing from this principle that '(lit follows that activities temporarilycarried on outside the territory of the Community are not sufficient to exclude the application of thatprinciple, as long as the employment relationship retains a sufficiendy close link to that territory'.

2" ECJ, Marioeops do Vega 9/88, (1989] ECR 2989, para. 15.2" ECJ, Cwumission a Fasce, 167/73, (1974] ECR 359; Cauissien a UK, C-6/04, (2005] ECR

1-9017, paras. 115-17. For commentary see, S. Boelaert-Suominen, 'The European Communit% theEuropean Court of Justice and the Law of the Sea' (2008) 23 UJMCL 643-713.

23M ECJ, Irid Beu a Fdfd ARpu of Gm=Vw, C-214/94, (1996] ECR 1-2253, paras. 14-15.

This logic receives considerable backing in the Schengen Borders Code.Although border controls are initially described in geographical terms, 236

by contrast, when defining specific methods of surveillance the Codeadopts an extraterritorial criterion. As regards rail traffic, it establishes thatchecks can be performed 'in stations in a third country where personsboard the train'.237 Concerning air borders, the Code determines thatchecks can be effected 'on the aircraft or at the gate', even in 'airportswhich do not hold the status of international airport'.238 At sea 'checksmay also be carried out... in the territory of a third country'. 239 In thislight, maintaining a strict territorial basis for the applicability of theSchengen Borders Code seems unwarranted. 24° It is the legal instrumentitself that delineates its own scope of application ratione ld as exceedingthe territories of the EU Member States.24'

The European Commission, elaborating on its scope of applicationratione matoiae, has arrived at the same conclusion. In response to a requestfrom the LIBE Committee of the European Parliament, it has delivered anopinion concerning the applicability of the Code to the Italian-Libyanpush-backs.242 The Commission considers that border surveillance activ-ities that aim to prevent unauthorised border crossings fall within the pur-view of the Schengen Borders Code. The reasoning is grounded in the objectof article 12 SBC. Because Italian-Libyan controls amount to border sur-veillance activities as defined by the Code, they are deemed to fall withinits material scope of application. As a result, both the Code and the prin-ciple of non-reounumnt enshrined therein ought to be respected, regard-less of whether controls are undertaken in the territorial waters of EUMember States or on the high seas.

The Decision on Frontex maritime operations maintains the sameposition, establishing that nobody 'shall be disembarked in, or otherwise

236 Art. 2 SBC defines external borders as 'the Member States' land borders, including river andlake borders, sea borders and their airports, river ports, sea ports and lake potts, provided that they arenot internal borders'. Border checks are defined as 'checks carried out at border crossing points' andborder guards as public officials assigned 'to a border crossing point or along the border, or in theimmediate vicinity of that border'.

237 SBC Annex VI, para. 1.2.2.238 Ibid., paras. 2.1.3. and 2.2. 1.2N bid., para. 3. 1. 1.

M This is precisely the argument that the Italian authorities invoked in response to the CPT reporton the push-back operations, claiming that: 'we recall that the operations under reference - namelyrescue at sea operations on High Seas - do not fall under the Schengen Border Code'. See, 'Responseof the Italian Government to the report of the European Committee for the Prevention of Torture andInhuman or Degrading Treatment or Punishment (CPT) on its visit to Italy from 27 to 31July 2009',28 Apr. 2010, at 9, available at: <http://wwWcpt.coe.int/documents/ita/2010-inf-5-engpdf%.

2 For a detailed discussion on the scope of application nians ld of the Code and further refer-ences, see, M. den Heijer, 'Europe beyond its Bordemn Refugee and Human Rights Protection inExtraterritorial Immigration Control' in Ryan and Mitsilegas (eds.), above n. 29, 169-98, at 176-80.

242 Letter from ex Commissioner Barrot to the President of the LIBE Committee of 15 July 2009(on file with the author).

210 Ti0/kta Moreno-Lax

Aganst a Fragmmemy Reading of EU Obligaion Accru at Sea 211

handed over to the authorities of, a country in contravention of the prin-ciple of non-refoulmmn or from which there is a risk of expulsion or returnto another country in contravention of that principle'. 243 This rule, beingenunciated under the rubric of 'General principles' inscribed in the bind-ing part of the Decision, shall be deemed to apply to all activities regulatedtherein. 24 It may, accordingly, be inferred that both interdiction andsearch and rescue measures undertaken by EU Member States anywhereat sea with the purpose of border control, or in the course of a mari-time surveillance operation, shall be considered as coming within theremit of the Schengen Borders Code and subject to its provision onnon-refoulement. 245

6. Access to procedures and effective remediesWhere non-refoukmwt applies, a series of related procedural guaranteesbecome applicable as well. As article 33(1) CSR prohibits the rfiukemotof refugees, it has been accepted that the only adequate manner in whichto determine whether the person concerned may be safely expelled is toestablish whether his life or freedom would be at risk in the country ofdestination on account of his race, religion, nationality membership ofa particular social group or political opinion before the removal takesplace. 246 It is therefore understood that the Refugee Convention 'mayimplicitly require States to perform status determination procedures'.2 47

As UNHCR notes in its 'Handbook on Procedures', in order to enablestates parties to the Convention to implement their provisions, refugeeshave to be identified.248

Such identification, although mentioned in the Convention itself,249 isnot specifically regulated. The Convention does not indicate which kind of

243 Frontex Guidelines Decision, Annex, Part I, para. 1.2.244 According to art. 1 of the Decision, maritime surveillance operations coordinated by Frontex

'shall be governed by the rules laid down in Part I to the Annex. Those rules and the non-bindingguidelines laid down in Part II to the Annex shall form part of the operational plan drawn up for eachoperation coordinated by the Agency'.

245 This is not the only example in EU law providing for the applicability at sea of the principle ofnon-rdnfuhm Article 12(2) of the CouncilJoint Action governing the AtW=ta operation against piracyin Somalia stipulates that no one 'may be transferred to a third State unless the conditions for thetransfer have been agreed with that third State in a manner consistent with relevant international law,notably international law on human rights, in order to guarantee in particular that no one shall besubjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment'. See,Council Joint Action 2008/851/CFSP of 10 Nov. 2008 on a European Union military operation tocontribute to the deterrence, prevention and repression of acts of piracy and armed robbery off theSomali coast, [2008] oJ L 30/33.

246 Hathaway, above n. 195, at 279; and Goodwin-Gill and McAdam, above n. Ill, at 215.247 H. Bat*jes, Ew Aslun Law and Inkmadauu Law (Leiden/Boston: Martinus Nijhoff, 2006),

467, and references therein.20 UNHCR, 'Handbook on Procedures and Criteria for Determining Refugee Status', HCR/

IP/4/Eng/REV2 [1992] (UNHCR Handbook), para. 189.29 Arts 9 and 31(2) CSR.

212 V'woeta Morew-Lax

procedures are to be adopted.250 It is left to each Signatory State to estab-lish the one it considers most appropriate, taking into account its particularconstitutional and administrative structure.251 The general principle ofeffectiveness in international law requires, in any case, that the implemen-tation of a treaty be conducted in such a way as to allow the instrument toproduce its 'appropriate effects' 252 in light of its 'object and purpose'. 253 Ithas therefore been submitted that, at a minimum, provision for an indi-vidual assessment of each particular case is necessary 2M

As far as judicial review is concerned, article 16(l) CSR allows everyrefugee to 'have free access to the courts of law on the territory of all Con-tracting Parties'. During the drafting process the absolute character of thisprovision elicited no debate.255 To be able to enforce the rights derivedfrom the Convention, refugees were to be granted unimpeded access tojudicial protection without exceptions. 256 Although the possibility toreview the outcome of the refugee status determination procedure is notexpressly contemplated therein, the doctrine has accepted the applicabilityof article 16(l) CSR in this context too.257 Some jurisprudence endorsesthis approach. The English High Court has indeed considered that:

[t]he use of the word 'refugee' is apt to include the aspirant, for were that not so,if in fact it had to be established that he did fall within the definition of 'refugee'in article 1, he might find that he could have no right of audience before the courtbecause the means of establishing his status would not be available to him.258

As regards the suspensive effect of appeals, several cases observe that,the prospect of removal being refugees' principal concern, '[ilf their fearsare well-founded, the fact that they can appeal after they have beenreturned to the country where they fear persecution is scant consola-tion'. 259 It has thus been maintained that 'Ti]f a claim for asylum is madeby a person.., that person cannot be removed from or required to leave... pending a decision on his claim, and, even if his asylum claim is refused,so long as an appeal is being pursued'.26°

250 On the fairness of determination procedures, see, inW dia, EXCOM Recommendation No.XXX, Oct. 1977.

251 UNHCR Handbook, para. 189.252 Yearbook of the International Law Commission, VL 11 (1966), at 219.2 Art. 31(2) VCLT.2% K. Wouter fJnluneiioe Lea Samdwdsfr Oiek ianfioJ Rqjkaht (Antwerp: Intersentia,

2009), from 164.255 Hathaway, above n. 195, at 237.

Note that art. 42 CSR forbids any reservations to art. 16(1) CSR.27 Cadier, above n. 205, from 320, and references therein.

RSa Swry of Scbkfir Ai Howe Depwftas a pwkJahoww d* a., [1993] Imm. AR 564 (E%QBD), 1I June 1993, at 566.

2" R (I) a &wcvy of SA*fir &W How Dqpxud, [2003] EWCA Civ 25, 24Jan. 2003, para. 54.2 R (SmnA) a S re.wof/S*o',.fir As HwDeut4 (2001] EWCA Civ 328,2 Mar 2001, pam. 15.

In the same vein, R . &ftuy of S f'HoneDewtmumo expae OMia* ,, (1996] QB 768, 5 Mar. 1996.

Against a Fragmattaty Readwi of EU Obigatins Accrwng at Sea 213

In the framework of the ECHR, article 3, enshrining 'one of the funda-mental values of democratic societies', 261 requires states to organize theprocedures to determine whether eventual return would cause the personconcerned to face a 'real risk' of exposure to ill-treatment in a manner thatenables independent and rigorous scrutiny 262 Deportation orders have tobe served in writing after an individual examination of the case, followinga legal procedure previously established by law. The reasons underlyingthe removal have to be notified to the person concerned alongside themeans and conditions to appeal the decision before the removal occurs.263

To preserve the effectiveness of rights, 26 4 no impediments of a legal ormaterial character can be imposed on the access to such procedures.265

The failure of the person concerned to fulfill immigration requirements,or the fact that he may be sent to a purportedly safe third country, does notexonerate state authorities from establishing not only prospective breachesbut also an 'arguable claim' 266 that the rights protected under the ECHRwould be violated if return takes place. In fact, indirect refoulkment isforbidden too. The removal to an intermediary country, be it also a Con-tracting Party to the ECHR, does not affect the responsibility of the expellingstate 'to ensure that the applicant is not, as a result of the decision to expel,exposed to treatment contrary to article 3 of the Convention. 267 Presump-tions of safety remain subject to rebuttal. Therefore, Contracting Partiescannot rely on international arrangements, like the ones underpinning theHera operations or the Italian push-back scheme, to transfer persons from

261 ECtHR, hdd a UK Appl. No. 5310/71, 8 Jan. 1978, para. 163; 6Wh a UAn Appl. No.22414/92,15 Nov. 1996, para. 79; Smaa .l*, above n. 180, para- 127.262 ECtHR, Jkbvi a Trey, Appl. No. 40035/98, 11 July 2000, para. 39: 'a rigorous scrutiny must

necessarily be conducted of an individual's claim that his or her deportation to a third country willexCe that individual to treatment prohibited by art. 3'.

Ab&Mk and awdimnia a Tk, above n. 123, paras. 107-17.264 The Convention aspires to guarantee rights that are 'practical and effective', not 'theoretical or

illusory'. See, among many others, ECtHR, Ardo a Iza , Appl. No. 6694/74, 13 May 1980.M ,arti a Tw*V, above n. 262, para. 40: 'It would appear that the applicant's failure to comply

with the five-day registration requirement under the Asylum Regulation 1994 denied her any scrutinyof the factual basis of her fears about being removed to Iran'; in Geedhia a Fme, above n. 123,from 54, the Court declared France to be in breach of its obligations by providing for an asylum pro-cedure the access to which was subordinated to a prior decision on leave to enter that was enforceablebefore the asylum claim had been assessed.2" The term 'arguable' is not synonymous with 'manifestly founded' or 'admissible'. At times

the Court has accepted the arguability of a claim determining its foundedness only after a thor-ough examination. In T1. a UK, above n. 179, the Court considered the claim arguable becauseit raised concerns about the risks faced after expulsion, although it was declared inadmissible inthe end. On the issue of arguability, see, Wouters, above n. 254, from 333; T. Spijkerboer, 'Sub-sidiarity and 'Arguability": the European Court of Human Rights' Case Law on judicial Reviewin Asylum Cases' (2009) 21 /JRL 48-74; N. Mole, Alm and du Eumpwn Caonuon aon Human R/as(Strasbourg- Council of Europe Publishing, 2007), from 67; and, EJ. Hampson, 'The Concept ofan "arguable claim" under Article 13 of the European Convention on Human Rights' (1990) 39ICLQ891-9.

267 T.. UK at 15; and, K.R.. a U at 16;above n. 179.

214 Viwha Moeno-Lax

one jurisdiction to another automatically before conformity with article 3ECHR has been established.

Where an independent and rigorous assessment has led the state to con-dude that no substantial grounds have been shown for believing that theapplicant would face a real risk of being subject to ill-treatment upon re-turn, the individual concerned must still be provided with an effectiveremedy. The Court held in Jabai:

that article 13 guarantees the availability at national level of a remedy to enforcethe substance of the Convention rights and freedoms in whatever form they mighthappen to be secured in the domestic legal order. The effect of this article is thusto require the provision of a domestic remedy allowing the competent nationalauthority both to deal with the substance of the relevant Convention complaintand to grant appropriate relief.268

To be considered effective, remedies have to be legally and materiallyaccessible. 269 The authority referred to in article 13 ECHR does not'necessarily have to be a judicial authority;, but if it is not, its powers andthe guarantees which it affords are relevant in determining whether theremedy before it is effective'.27°

With regard to the suspensive effect of appeals, there has been an evolu-tion in the Court's case law. The Court initially considered that the notionof an effective remedy required 'the possibility of suspending the imple-mentation of the measure impugned'. 27' In Conca, it established thatarticle 13 'requires that the remedy may prevent the execution of meas-ures that are contrary to the Convention and whose effects are potentiallyirreversible'. The Court considered it 'inconsistent with article 13 for suchmeasures to be executed before the national authorities have examinedwhether they are compatible with the Convention'. 272 In Gebrmedi theCourt eventually concluded that article 13 requires access to appeals 'withautomatic suspensive effect'. 273

Within the EU legal framework, the EU borders acquis does not providefor a specific procedure to be followed in refiu mmi cases. In principle,entry should be refused to any third-country national not fulfilling theentry requirements established by the Schengen Borders Code, which in-dude being in possession of adequate travel documents and valid visas.274

Entry refusals should be issued by a competent national authority in writing,

20 Jkab/a Twkq, above n. 262, par. 48.ECtHR, &M SW Ud a T7k.Areawk, AppL No. 1948/04, 11 Jan. 2007, para. 121;. MI. a U(J

25904/07, 17July 2008, pan. 89.270 ECtHR, Caka a B*jm, Appl. No 51564/99,5 Feb. 2002, pan.. 75.271 J.ahi a Tw/V, above n. 262, para. 50.272 C, xAm v Bskm, above n. 270, para, 79.273 GQ~w/ia a Fnam, para. 66, confirmed inAd *MawaidKa a a Tky, aboven. 123, para.58.274 SBC, arts. 13 and 5(1).

Against a Frqmentwy Reading of EU Obligations Accruing at Sea 215

in a standard form stating the reasons behind the refusal, and should 'takeeffect immediately'.275 Persons refused entry have the right to lodge anappeal without suspensive effect in accordance with national law.276 Theserules are, however, 'without prejudice to the application of special provi-sions concerning the right of asylum and to international protection'. 277

The asylum acquis, on the other hand, has regulated the procedure applic-able to asylum applications made in the territory or at the borders of theEU,278 leaving it for the Member States to decide on the arrangementsapplicable to requests submitted abroad.279 This does not mean, though,that a legal procedure to determine the compatibility of pre-entry refusalswith non-refoudment is not required under EU law. In the absence of harmo-nized rules on the issue, it is for the domestic legal system of each MemberState to lay down the applicable procedure. 280 In such case, domestic rulesshould not render 'practically impossible or excessively difficult the exerciseof rights conferred by Community law'. 281 In particular, the associated'right to effective judicial protection' should remain intact.282

The individual entitlement to judicial protection is one major conse-quence of the EU being organized as a 'community based on the rule oflaw'. 283 The right is considered to be a general principle of European law,stemming from the common constitutional traditions of the MemberStates, as enshrined in articles 6 and 13 of the ECHR.284 Article 47 of theEU Charter of fundamental rights has subsequently codified a subjective'right to an effective remedy and to a fair trial', intended to apply vis i visthe institutions of the Union and the Member States when they are imple-menting EU law.285 As a result, 'everyone whose rights and freedomsguaranteed by the law of the Union are violated has the right to an effectiveremedy before a tribunal'. 286 The right comprises, in particular, an entitlementto 'a fair and public hearing within a reasonable time by an independent

275 Ibid., art. 13(2).2176 Ibid., art. 13(3).277 Ibid., art. 13(1).278 Council Directive 2005/85/EC of 1 Dec. 2005 on minimum standards on procedures in

Member States for granting and withdrawing refugee status, (2005] OJ L 326/13 (ProceduresDirective).

279 Ibid., art. 3.280 ECJ, Coowke and C an, C-453/99 2001] ECR 1-6297, para. 29; Sqfale, C-13/01 [2003] ECR

1-8679, para. 49.281 ECJ, Raw, 158/80, [1981] ECR 1805, para. 5; Pderbrsc, C-312/93, [1995] ECR 1-4599, para.

12.282 ECJ, rol. and Odees, C-87/90 and C-89/90, (1991] ECR 1-3757, pan. 24.M ECJ, La Ket C-294/83, ECR 1986 1-1339, par. 23; Unida de Peqain Agikudda, C-50/00,

[2002] ECR 1-6677, para. 38.284 ECJ,&,h 222/84, [1986] ECR 1651; Hp/au, 222/86, [1987] ECR 4097; B=A C-97/91,

(1992] ECR 1-6313; Unidn de P.qu&as 4giivrar, ibid., para. 39; iba LD C-432/05, 2007] ECR1-02271, para. 37.

285 EUCFR, art. 5 1(1), and Explanations to the EUCFR, above n. 229, at 29.288 EUCFR, art. 47(1).

216 Violeta Morawo-Lax

and impartial tribunal previously established by law' and 'the possibility ofbeing advised, defended and represented'. 287 In order to ensure effectiveaccess to justice, '[l].egal aid shall be made available to those who lack suf-ficient resources'. z According to the Presidium's explanations, article 47is based both on article 13 and 6 ECHR. Judicial protection in EU law is,however, 'more extensive' as it guarantees the right to an effective remedy'before a Court'.289 Therefore, the 'national authority' to which article 13ECHR refers has to be understood within the EU legal framework as areference to a court of law. Likewise the substance of article 6 ECHR hasbeen given a wider scope. In EU law the right to a fair hearing is not con-fined to civil and penal law suits. 29° The procedural guarantees enshrinedin article 6 ECHR, the applicability of which has been excluded in casesconcerning immigration proceedings by the Strasbourg Court,291 aregenerally applicable within the remit of the EU legal order.

The suspensive effect of appeals is not expressly provided for in article47 EUCFR, but article 52(3) EUCFR indicates that in so far as the Chartercontains rights which correspond to rights guaranteed by the ECHR,although the Union may provide more extensive protection, the meaningand scope of those rights shall, in principle, be 'the same' as those laid downby the Convention. According to the Presidium's explanations, article 52(3)EUCFR 'is intended to ensure the necessary consistency between theCharter and the ECHR...,.292 This means, in particular, that the legis-lator, in laying down limitations to the rights recognized in the Charter,must comply with the same standards as the ECHR, established not onlyin the text of the instrument, but also by the case law of the StrasbourgCourt. The Presidium stresses in this connection that, in any event, 'thelevel of protection afforded by the Charter may never be lower than thatguaranteed by the ECHR'.293 In this light, it seems reasonable to assumethat in pre-border proceedings regarding nao-refoulment the Strasbourgprescriptions on the automatic suspensive effect of appeals apply in the EUlegal framework as a matter of article 47 EUCFR.

Concerning the specific relationship between general principles and sec-ondary legislation in EU law, the Soks jurisprudence established that thegeneral principle of judicial protection overrules any provision containedin secondary legislation that affords less individual protection. In the in-stant case, article 243 of the Community Customs Code did not providefor national Courts to grant interim relief. The European Court of Justice

27 Ibid., art. 47(2).288 [bid., art. 47(3).289 Explanations to the EUCFR, above n. 229, at 29.290 Ibid., at. 30.29 ECtHR, Maaia a rwsc Appl. No. 39652/98,5 Oct. 2000, para. 40.292 Explanations to the EUCFR- above n. 229, at 33.M Ibid.

Against a Friagntvy Reading of EU Oblgations Accruing at Sea 217

considered that the provision should be given an interpretation consistentwith the general principle, as it could not 'limit the right to effective judicialprotection'.294 Transposing the argument to the matter of our concern,the regime of pre-border controls at sea has to be aligned with the require-ments of article 47 EUCFR. Removals cannot take place 'immediately'.2 95

When an 'arguable claim' of reoument is formulated, an exercise of con-sistent interpretation becomes necessary. The Court has consistently heldthat, 'if the wording of secondary Community law is open to more thanone interpretation, preference should be given to the interpretation whichrenders the provision consistent with the EC Treaty'. On this account,'Member States must... make sure they do not rely on an interpretationof wording of secondary legislation which would be in conflict with thefundamental rights protected by the Community legal order or with theother general principles of Community law'.2 Therefore, either the wordingof article 13(3) SBC is given an interpretation in conformity with article47 EUCFR, or, as contemplated in article 13(l) SBC, an entirely new pro-cedure is enacted introducing 'special provisions concerning the right ofasylum and to international protection'.

The EU legislator has put forward an intermediate solution in its Deci-sion governing Frontex maritime missions, submitting that the personsintercepted or rescued in the course of a joint operation 'shall be informedin an appropriate way so that they can express any reasons for believingthat disembarkation in the proposed place would be in breach of the prin-ciple of non-rqfu/ment'.297 Then the SAR coordination centre concernedshould be informed of the presence of such persons and convey the infor-mation to the competent authorities of the Member State hosting themaritime operation. On the basis of that information, the operationalplan of the mission 'should determine which follow-up measures may betaken' .2

However, these provisions do not amount to a legal procedure previ-ously established by law that would enable an independent and rigorousscrutiny in each individual case. Whereas the principle of informing thepersons intercepted of the prospective place of disembarkation is consid-ered a legally binding rule, inscribed in Part I of the Annex to the Decision, thefollow-up measures to be adopted, inscribed in Part II of the Annex,produce no legal effect.299 No procedural guarantees, access to legalcounsel or representation have been contemplated either. A provision on

294 ECJ, Sik/ &d., (2001] ECR 1-0277, para. 17. For an analysis, see, E. Brouwer, Da/Bodm andRed Right (Leiden/Boston: Martnus Nijhoff, 2008), from 303.

M Art. 13(2) SB29 ECJ, OAnh da &zruxfiau , C-305/05, (2007] ECR 1-05305, pam. 28.297 Frontex Guidelines Decision, Annex, Part I, para. 1.2.2N Ibid., Annex, Part U, para 2.2.299 Art. I Frontex Guidelines Decision, above n. 244.

218 Vwlta Moreno-Lax

judicial protection is also lacking, as are the conditions under whichremedies before the Courts competent to grant appropriate relief couldbe exercised. The fact that appeals should be endowed with automaticsuspensive effect is not reflected anywhere in the text. As a result, thegeneral impression is that the EU legislator is trying to defer the essen-tial conclusion that meaningful procedures and judicial protection canonly be guaranteed on dry land. While an initial onboard profiling isnecessar, it is not sufficient for the correct identification and subsequentprocessing of asylum seekers. 300 Should the competent Courts be ableto sit elsewhere in a way that would not compromise the effectivenessof non-refoulement, access to the territory of the EU Member States maybe open to debate. Otherwise, inherent in a plea of non-refoukMent is anentitlement to provisional admission on dry land for the purpose ofsuch procedures as may be necessary to guarantee that removal to athird country is safe.

7. ConclusionsWithout minimizing the challenges posed by irregular maritime migra-tion, EU Member States must secure to everyone within their jurisdictionthe rights and freedoms they derive from human rights instruments andEU law. Reasons of political convenience or economic cost do not ex-empt from this obligation. The fact that compliance may attract protec-tion seekers and possibly cause a rise in the number of asylum applicationsdoes not excuse Member States from organising their border controlsystems in such a way that they can meet their responsibilities. 30 1

Operational guidelines for maritime missions and a regime to appor-tion responsibility among participating Member States may be welcome,but they cannot modify the duty to comply with clear internationalobligations in good faith. Responsibility accrues in these situationsfrom the mere fact of exercising effective control through rescue orinterdiction, without requiring a specific system to allocate it in amore suitable way.

Where interception occurs, fundamental rights remain applicable.Member states and Frontex cannot intercept migrants as a means toreduce loss of life without considering the need to avoid disembarkation interritories where the lives and freedoms of those alleging a well-founded

300 UNHCR, 'Background note on the protection of asylum seekers and refugees rescued at sea',18 Mar. 2002, para. 23.

301 One of the arguments Belgium submitted to justify the elimination of the automatic suspensiveeffect of appeals in expulsion cases was the overloading of the Conseil d'Etat and the risk of abuse ofprocedure, which the Strasbourg Court rejected considering that- Aricle 13 imposes on the ContractingStates the duty to organize their judicial systems in such a way that their courts can meet its require-ments', C"ka a Bdgiu, above n. 270, para. 84.

Against a Frqmntay Reading of EU Obligations Acmcrg at Sea 219

fear of persecution or a real risk of ill treatment may be put in jeopardy30 2

Interception does not equate to rescue in international law.Interdiction powers should be exercised with due regard to the LOSC

and 'other rules of international law',303 respecting the regime of innocentpassage as well as the right of vessels in distress to seek refuge in an adja-cent coastal state. Ultimately a positive obligation to preserve human lifemay require that permission to enter port be accorded. The fact that cayucoand pateras do not fly the flag of any state does not allow for unlimitedenforcement jurisdiction in their regard. The UN Human TraffickingProtocol does not create any interdiction powers whatsoever, whereas theUN Smuggling Protocol requires a distinction to be drawn between thesmugglers and their victims. If the former can be made the object of legalprosecution and punishment, the latter have to be assisted and protectedthrough measures appropriate to preserve their human rights.

Neither international co-operation nor extraterritoriality release EUMember States from their international engagements. An independentresponsibility remains for each Member State exercising effective controlover the persons concerned. .on-refJuh1w is applicable in this context.Therefore, border surveillance activities carried out anywhere at sea entailthe obligation to respect article 3 of the Schengen Borders Code and theEU Charter of Fundamental Rights, the content of which shall be estab-lished by reference to the ECHR and the Refugee Convention.

A series of procedural guarantees follow from an entitlement to protec-tion against rfmiemat. Where an arguable claim is made that removalwould expose the person concerned to persecution or mistreatment, anindependent and rigorous scrutiny is to be undertaken by a competentnational authority in every individual case. Member states cannot relyautomatically on bilateral arrangements with third countries to transferthe person in question. Compatibility of the removal with the require-ments of non-rfju/ment must be determined first. Removal orders have tobe served in writing according to a legal procedure previously establishedby law, containing the reasons motivating the removal and indicating theappropriate means and conditions to appeal. A judicial remedy should beavailable in domestic law allowing the competent court to deal with thesubstance of the claim and to grant appropriate relief. The appeal shouldhave automatic suspensive effect and the execution of the removal shouldbe suspended until it has been determined that it is compatible with non-refiln.

Whm the initial procedure is conducted physically is not without reper-cussions. The exercise of the rights conferred to individuals by EU lawcannot be rendered practically impossible or exceedingly difficult and

302 IMO Guidelines, above n. 120, para. 6.17.X Arts. 2(3) and 87(l) LOSC.

220 Vwta Mormo-Lax

decisions at first instance should not prejudice the right to effective judicialprotection. Therefore, it is submitted that compliance with EU law requiresEU Member States to allow preliminary access to Union territory for thepurpose of ensuring, through adequate procedures, that removing thepersons concerned to a third country is actually safe.

On this account, the EU Member States should abandon their fragmen-tary approach to their maritime obligations and align their border controlstrategy with the rights that migrants and refugees derive from inter-national and EU law. 'MWhe special nature of the maritime environment... cannot justify an area outside the law where ships' crews are covered byno legal system capable of affording them enjoyment of the[ir] rights'. 3°4

The scrupulous adherence to the rule of law305 requires the EU and itsMember States to anchor the Union in 'the values of respect for humandignity, freedom, democracy, equality.., and respect for human rights'. 3° 6

304 Makdw, mo. a Im Fc/GCJ, 29 Mar. 2010, above n. 95, para. 81.305 Ls s and Usd & Peqaxdw rivfow, above n. 283.MG Art 2 EU