When for any violations to the immigration laws. It

When a vessel is detected, the state has a challenge to
balance its objectives with the obligations that are set out by the
International law specifically the Migrant Smuggling Protocol. According to the
Migrant Smuggling Protocol which supplements the United Nations Convention
against Transnational Organised Crimes the smuggling of migrants is defined as
following “…the procurement, in order to obtain, directly or indirectly, a
financial or other material benefit, of the illegal entry of a person into a
state party of which the person is not a national.”1
Article 8 of this Protocol deals with deals with the action of boarding and
inspecting by the specific personnel, sub-article 2 of article (8) requires an
authorisation by the flag state if  the
vessel is flying another flag, unless both countries have an agreement that
exonerates this request. Such action can’t be taken prior to an authorisation.

 

One must always do a distinction, between human trafficking
and smuggling of persons, in this case smuggling is done by the consent given
by the person being smuggled into another state illegally, normally for a sum
of money or also another benefit for the smuggler. In the case of human
trafficking there is no consent, and it is done by deception.2
Smuggling of persons ends upon the arrival at the State, after crossing
boarders illegally. Even though this is not specifically mentioned, or rather
addressed in the UNCLOS, Nathalie Klein comments that this can be catered for
in article 19(2)(G) of the UNCLOS.3
MSV1 It has also been stated that
a state can exercise criminal jurisdiction over the smuggling of migrants
through article 27MSV2 . This article may be
applied when a consequence of this crime the coastal State has had its good
order disturbed or its peace disturbed in its territorial water. On the other
hand article 33(1) provides for any violations to the immigration laws.

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It is important to note that many times migrants are found on
vessels, they are found on unregistered vessels. Therefore for this purpose,
such vessels may be considered to be stateless for Article 110 of UNCLOS4,
and thus one would have the right to visit such vessel.5
The UNCLOS gives specific right and duties to States when it comes to migrant
smuggling by sea. Every state has a duty to rescue according to the treaty law
and also under Customary International Law. Article 98 of UNCLOS defines the duty
that a state must assist individual that are at risk at sea. This is relevant
to smuggling of migrants as most of the times migrants are transported on very
unworthy vessels, and therefore there would be a very high possibility of need
of assistance. This assistance would be needed by either a flag State of a
nearby vessel or else a coastal state. Furthermore this article obliges the
master of a ship to give the assistance needed as long as it will not be of
prejudice to the ship or cargo, or to the people on-board. Additionally
subsection (2) requires that the coastal state conduct any rescue services that
might be needed.

 

To prevent migrant smuggling by sea it requires states to
collaborate and also to strengthen the international cooperation in order to
remove areas of impunity for the smugglers. It has been suggested that there
must be more cooperation in response to migrant smuggling and this can be
achieved through supporting the Migrant Smuggling Protocol and also increasing
the work of UNODC in order to facilitate cooperative response. It is important
to note that in these cases bilateral and regional cooperation is the most
important, especially having flexible cooperative networks to be effective and
efficient when such situations occur. There are two key points around migrant
smuggling, firstly being that it is the most dangerous type of smuggling making
it a priority for the States to respond and also secondly there must be
cooperation between all countries involved in the smuggling route.6

The duty
of rescue though it is inviolable, it comes with a lot of issues. Keeping in
mind that the rescue is practically unreservedly, enforcement is still very difficult,
especially when the Flag State is the one which can enforce the obligation and
considering that some of the vessels are registered under flags of convenience.
The problem that arises is in the case of asylum-seekers, as international law
is silent on the matter. Therefore in this case, another difficulty arises, in
those cases in which migrants intend to reach the European Union as their final
destination. A solution has been attempted through an IMO Maritime Safety
Committee (MSC) which adopted amendments to the SOLAS and the SAR Convention,
the amendment ensures that a place of safety is to be provided within a
reasonable time. This responsibility falls on the Government which is
responsible for the SAR region, specifically where the migrants were recovered.
Knowing all this, the place of safety still is unidentified in international
law.

At the moment the
State in whose area search and rescue takes place has to bare the main
responsibility for the rescue and also for the arrival of the  individuals. A draft circular was issued in
2009 by the IMO Facilitation Committee this states that ‘if disembarkation from
the rescuing ship cannot be arranged swiftly elsewhere, the Government
responsible for the SAR area should accept the disembarkation of the persons
rescued into a place of safety under its control”7. Along these lines, a somewhat heavy weight is put upon
the State in whose SAR territory the help is rendered as it is this State which
is considered in charge of organizing such agreeable endeavours. It appears to
be, that in default of an understanding, it is this State which must bear duty
regarding those protected adrift in their search and rescue area.

1Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the Convention against Transnational Organised Crime, Art. 3(a)

2Simon
Manduca,
‘Maritime
Security:
Threats
and
International
Law
Responses’
(LLD,
University
of
Malta
2014), p. 87-88

3Natalie Klein, Maritime Security And The Law Of The Sea (Oxford University Press 2011), p.429.

4United Nations Convention on the Law of the Sea 1982., Art, 110

5Ibid (Manduca 3)

6Issue Paper: Smuggling Of Migrants By Sea (United Nations 2011) accessed 14 January 2018 .

 

 

7
International
Maritime
Organization
(IMO), Principles Relating to Administrative
Procedures
for
Disembarking
Persons
Rescued
at
Sea,
22 January
2009, FAL.3/Circ.194 , available at: http://www.refworld.org/docid/524be8244.html accessed 21 January 2018

 MSV1Insert
quote from unclos of article 19(2)(G)

 MSV2Add
article 27