Maritime Migrant Smuggling Flashcards
What is the main international protocol for maritime migrant smuggling?
The Protocol against the smuggling of migrants by land, sea and air (supplementing the UN Convention against transnational organised crime), i.e., the smuggling protocol
What is the Article in the Smuggling Protocol that defines the ‘smuggling of migrants’?
Article 3 (a), which defines it as “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 or a permanent resident.
What is the Article relating to the criminal liability of migrants?
Article 5: Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in Article 6 of the Protocol.
What does Article 6 of the Protocol include?
It talks about criminalisation, and the obligation for each State Party to adopt legislative and other measures to establish as criminal offences (when committed intentionally and in order to obtain a financial or other material benefit):
a) the smuggling of migrants
b) producing a fraudulent travel identity document or procuring/possessing/providing such a document, for the purpose of enabling the smuggling of migrants
c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complying the necessary requirements for legally remaining in the State.
Which is the Cooperation Article?
Article 7, which includes States’ positive obligation to act in accordance with the international law of the sea to prevent and suppress the smuggling of migrants.
What is Article 8 of the Protocol?
Lists the measures against the smuggling of migrants by sea
- a State Party that has reasonable grounds to suspect that a vessel that is flying its flag or claiming its registry, that is without nationality or is refusing to show a flag, may request the assistance of other State Parties in suppressing the use of the vessel for that purpose. The State Parties so requested shall render assistance to the extent possible within their means.
- The State Flag may authorise the requesting state to:
a) board the vessel
b) search the vessel
c) if evidence is found that the vessel is engaged in the smuggling of migrants by sea, to take appropriate measures with respect to the vessel and persons and cargo onboard, as authorised by the flag State.
What is the safeguard clause?
Article 9, Smuggling Protocol:
Any measure taken in accordance with the previous article , shall not interfere with or affect the authority of the Flag State to exercise jurisdiction and control in administrative, technical or social matters involving the vessel.
What is the trafficking protocol called?
The Protocol to prevent, suppress and punish trafficking in persons especially women and children, (supplementing the UN Convention against transnational organised crime.)
How is ‘trafficking’ defined in the Protocol above?
Article 3 (a)
- The Recruitment, Transportation, Transfer, Harbouring or Receipt of Persons
- by means of the threat or use of force or other forms of coercion (abduction, fraud, deception, the abuse of power, position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
- Exploitation includes: prostitution, other forms of sexual exploitation, forced labour or services, slavery or similar to, servitude, the removal of organs.
Which is the ‘Freedom of the High Seas’ Article?
UNCLOS, Article 87: Freedom of the High Seas is open to all states, whether coastal or land-locked. It includes:
- freedom of navigation
- freedom of overflight
- freedom to lay submarine cables and pipelines
- freedom to construct artificial lands
- freedom of fishing
- freedom of scientific research
Which Article deals with the status of ships?
UNCLOS, Article 92
- Ships shall sail under the flag of one State only, save in exceptional circumstances, and shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
- A ship sailing under the flag of two or more states, may not claim any of the nationalities and may be assimilated to a ship without nationality.
Talk about the duty to render assistance.
UNCLOS, Article 98
- Every States shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:
- to render assistance to any of the person found at sea in danger of being lost
- to proceed with all possible speed to the rescue of persons in distress
- after a collision, to render assistance to the other ship
What is UNCLOS, Article 110?
This is the Right to Visit, which states that:
- when a warship which encounters on the high seas a foreign ship, unless it is entitled to complete immunity in accordance with Articles 95 and 96, is not justified in boarding it, unless there is reasonable ground for suspecting that:
- the ship is engaged in piracy
- the ship is engaged in the slave trade
- the ship is engaged in unauthorised broadcasting
- 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.
What is Article 337A of the Criminal Code?
It deals with traffic in persons to enter or leave Malta illegally.
It states that ‘any person who with the intent to make any gain whatsoever aids, assists’ any other person to enter/ to attempt to enter or to leave/to transit across/ to attempt to transit to cross Malta in contravention of the laws, or whoever conspires to that effect, shall be liable to punishment or to a fine.
What are the relevant articles in the Merchant Shipping Act?
- Article 305 (obligation to assist vessels in distress)
- Article 306 (Duty to render assistance to persons in danger at sea)
