CYIL vol. 8 (2017)

BIRUTĖ PRANEVIČIENĖ – VIOLETA VASILIAUSKIENĖ CYIL 8 ȍ2017Ȏ Measures against Migrant Smugglers on the High Seas by Different Vessels The fight against migrant smuggling is very relevant as “more than 90% of the migrants coming to the EU are facilitated mostly by members of a criminal network.” 61 The general framework of the actions that can be carried out on the high seas is set out in part VII of the UNCLOS Convention, which is “mainly characterised by the principles of freedom of navigation and the principle of the flag State. 62 Even though “UNCLOS sets up the basic legal framework governing enforcement action that may be taken against smuggling vessels, it contains no direct provisions dealing with the problem of smuggling. Consequently, the international community has developed responses to counter this lacuna through the adoption of other treaties.” 63 The United Nations Convention against Transnational Organized Crime 64 was adopted on 15 November 2000 and is supplemented by three Protocols. One of the Protocols deals with human smuggling. 65 This international document was the first international instrument criminalising human smuggling and also covers various aspects of the crime, including smuggling by sea. 66 In the context of the topic covered by this article, the provisions of the Smuggling protocol regarding the possible actions by the ships will be discussed. The UNCLOS Convention, Article 110 stipulates that a warship or any other duly authorized ship may board a ship if it is engaged in piracy, slave trade, unauthorized broadcasting (when the warship has jurisdiction over the ship according to provisions of the Convention), the ship is without nationality; or though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 67 Besides the right to visit a ship flying the same flag, in the case of smuggling the warship may visit the vessel and take necessary measures to board the vessel, search it, and if evidence is found of smuggling of migrants, to take appropriate measures as authorised by the flag state. 68 All action has to be approved by the flag state by express consent. If the vessel is without nationality or may be assimilated with a vessel of no nationality, the action may be taken without any consent. 69 It may be noted that many smuggling vessels are often stateless, as was confirmed by a study of the European Commission regarding illegal migration by sea. 70 Maritime interdiction may amount in certain cases to an assertion of jurisdiction through seizure and arrest of vessels. 71 If the consent of the flag state is obtained to exercise enforcement 61 Migrant Smuggling Networks , Joint Europol-INTERPOL Report, Executive Summary, May 2016 https://www. europol.europa.eu/sites/default/files/documents/ep-ip_report_executive_summary.pdf accessed 30 May 2017, p. 4. 62 ATTARD, Felicity, Is the Smuggling Protocol a Viable Solution to the Contemporary Problem of Human Smuggling on the High Seas? Journal of Maritime Law & Commerce, Vol. 47, No. 2, April, 2016, p. 221. 63 Ibid ., p. 222. 64 The United Nations Convention against Transnational Organized Crime, U.N.T.S. 2225, entered into force 29 September 2003. 65 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime U.N.T.S. 2241, entered into force 28 January 2004. 66 ATTARD, supra note 62, p. 224-225. 67 UNCLOS Convention, supra note 7, Article 110. 68 Protocol against the Smuggling of Migrants…, supra note 65, Article 8(2). 69 Ibid. , Article 8(7). 70 ATTARD, supra note 62, p 225. 71 ATTARD, supra note 62, p. 226.Themaritime interdiction by EUactors is widely discussed in PAPASTAVRIDIS,

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