The Human Element of Maritime Crime: Stowaways, Human Trafficking, and Migrant Smuggling (Patricia Mallia)

THE HUMAN ELEMENT OF MARITIME CRIME

STOWAWAYS, HUMAN TRAFFICKING, AND MIGRANT SMUGGLING

Patricia Mallia

16.1 Maritime Security and Irregular People Flows

The contemporary understanding of maritime security goes beyond direct threats to national sovereignty. It has expanded significantly, thus placing a greater demand on the enforcement capacity of States and presenting a challenge which each State cannot counter alone.¹ Uncontrolled movements of people, particularly, through migrant smuggling and (where international borders are crossed) trafficking in individuals, may be included in this group of threats to maritime security constituting threats to national sovereignty and to political and economic stability, aside from causing major disruption to national immigration policies and to the international protection framework as a whole.

Today’s security climate is typified by an increasing readiness of coastal States to exercise jurisdiction beyond their maritime zones. Apparent in various Conventions is the gradual extension of State jurisdiction. This evidences a new impetus in international lawmaking which further develops the concept of cooperation as the only tool by which current security threats can be effectively countered.² Combating the transnational crimes of people smuggling and trafficking of individuals however, presents a challenge somewhat different to the fight against drug smuggling by sea, for instance. It compels States to consider principles other than mere policing and interdiction since at the core of the illicit activity lie persons on the move, therefore requiring consideration of issues of human welfare and dignity:

Discourses that include refugees and irregular migrants together with terrorists, saboteurs and drug traffickers as wholly undesirable, or categorise them merely as ‘a problem’ and ‘a threat’, ignore the complexities of the issue. It is not even accurate to regard people who are travelling on the high seas as having an ‘illegal migrant’ status. Until they cross into another state’s jurisdiction, they are subject to the jurisdiction of the state of their own citizenship and of the boat’s registration, and only become ‘illegal’ by definition of the receiving state’s controls.³

Therefore, precisely because human beings are involved, any response to these crimes must be focused on ensuring the protection of the trafficked or smuggled individual or stowaway. In this light, enforcement action against such threats must be built around human rights foundations. Responses must adopt a human-rights based approach, and not merely consider such principles as an addendum to the main response framework. The ‘human element’ is thus central to the repression of these crimes invoking respect for humanitarian and human rights considerations.

In its 1998 Note on International Protection, the United Nations High Commissioner for Refugees (UNHCR) noted the difficulties faced by States all too clearly:

States face considerable challenges as they try and reconcile their obligations under the [Refugee] Convention with problems raised by the mixed nature of migratory movements, misuse of the asylum system, increasing costs, the growth in smuggling and trafficking of people, and the struggle to manifest international solidarity to resolve the refugee situation.⁴

At the same time, States have security interests to protect and are entitled to take any action in accordance with international law, which will minimize the risk caused thereby. At once therefore, one confronts a number of increasingly pressing questions: How strong can a State’s border control be without infringing on human rights? How much protection can an immigrant be given without this impinging on the socio-economic fabric of society?⁵

A number of problems surround these considerations. Firstly, international human rights law does not address the crucial aspect of the implementation of the right to leave one’s country. Coupled with this, most reactions to people flows have been unilateral or at best, regional in nature. To date, States have been unable to address the concept effectively in the international context. Furthermore, the current legal regime as regulated by the United Nations Convention on the Law of the Sea 1982 (UNCLOS)⁶ does not adequately cater for many of the current threats which plague the coastal State for the simple reason that ‘[t]he framers of the Convention never envisaged many of the crimes that exist today, and as a result either included only a general provision or none at all regarding their suppression’.⁷ Of course, vessels may be boarded in pursuance of the right of self-defence, or when authorized by the United Nations Security Council. However, on the high seas, save for a few exceptions, such as piracy and the slave trade, unauthorized broadcasting⁸ and the exercising of jurisdiction over stateless vessels,⁹ maritime interdiction or interception must be accompanied by flag State consent.¹⁰

This paper will seek to give an overview of the legal regime relevant to stowaways, migrant smuggling and trafficking in individuals. While the human element is a common thread which runs throughout all these, the latter two offences share a much closer connection since they constitute the subject of two of the three Protocols to the United Nations Convention against Transnational Organized Crime 2000 (CATOC).¹¹ This link will be reflected in this contribution. Similarly, while certain elements are common to all three offences, others, such as rescue at sea and the problems of disembarkation, are more imminent and difficult to solve in cases of smuggling and trafficking, as shall be noted below. Consequently, the regime relating to stowaways shall be dealt with first, and the duties of States with regard to rescue at sea and State rights and powers under the law of the sea regime will be discussed in relation to migrant smuggling and trafficking in individuals. This joint consideration also reflects the IMO’s approach to dealing with these forms of organized crime, the focus being on combating unsafe practices associated with the trafficking or transport of migrants by sea.

16.2 Stowaways

It is the IMO which has spearheaded efforts with respect to the allocation of responsibility to enable the successful resolution of cases involving stowaways.¹² With the International Convention relating to Stowaways 1957 (Brussels Convention 1957)¹³ not having come into force, it is the Convention on the Facilitation of International Maritime Traffic 1965 (FAL Convention)¹⁴ which has provided the legal regime regulating stowaways since 2002. In 2000, the IMO’s Facilitation (FAL) Committee agreed at its 28th session to introduce these provisions, consisting of both ‘standards’ and ‘recommended practices’.¹⁵ To this end, Resolution FAL.7(29) was adopted at the 29th Session of the FAL Committee which introduced a new Section 4 to the Annex of the FAL Convention, entering into force on 1 May 2003.

The provisions thereby introduced were heavily based upon an earlier IMO Assembly Resolution adopted on 27 November 1997, entitled ‘Guidelines on the Allocation of Responsibilities to See the Successful Resolution of Stowaway Cases’.¹⁶ However, it was later noted that ‘the parallel existence of the Guidelines and the FAL provisions on stowaways raised questions in relation to the procedures to be followed for dealing with stowaways by Member States which are also Contracting Governments to the FAL Convention’.¹⁷ The need was therefore felt to align these provisions and update them in a manner which reflected developments in the area. The Guidelines were consequently reviewed by the FAL and Maritime Safety Committees (MSC) with the result that the ‘Revised Guidelines on the Prevention of Access by Stowaways and the Allocation of Responsibilities to seek the Successful Resolution of Stowaway Cases’ were adopted by the MSC in December 2010.¹⁸ The FAL Committee adopted these Guidelines in September of the following year.¹⁹ Presently, these revised guidelines only apply in the case of Member States which are not parties to the FAL Convention and also, to those Member States which, although parties to the Convention, have made notifications to the Secretary-General of the IMO in accordance with Article VIII(1) and Article VIII(3).

The Revised Guidelines contain the same basic principles as their predecessor. Indeed, the concern as to the serious consequences of incidents involving stowaways remains the same, being: ‘the consequent potential for disruption of maritime traffic, the impact such incidents may have on the safe and secure operation of ships and the considerable risks faced by stowaways, including loss of life’. Similarly, there is the recognition of the difficulty in resolving stowaway cases due to the number of States which are potentially involved in any one incident. A reading of the Revised Guidelines and also of the relevant provisions of the FAL Convention shows that the regime is characterized by two main elements, namely: the duty of cooperation in the prevention and expeditious resolution of stowaway incidents and repatriation or return of stowaways, and the necessity of humane treatment to all stowaways.

The duty of cooperation is fast becoming a fulcrum upon which rests any attempt to prevent and suppress threats to maritime security, among other issues of a transnational nature. The regulation and resolution of stowaway incidents is no exception, as noted in Article 4.2 of the Annex to the FAL Convention²⁰ wherein it is stated that all stakeholders (including Masters, ship-owners, public authorities, port authorities, those providing security services ashore) ‘have a responsibility to cooperate to the fullest extent possible in order to prevent stowaway incidents and to resolve stowaway cases expeditiously and secure that an early return or repatriation of the stowaway will take place. Furthermore, all appropriate measures are to be taken in order to avoid situations where stowaways must stay on board ships indefinitely’.²¹ This notion of ‘shared responsibility’ has been described as the ‘core provision’ of the Section dealing with stowaways in the FAL Convention’s Annex.²²

Also central to the resolution of stowaway incidents is the human treatment of stowaways, whether or not they also qualify as asylum seekers. Indeed, the provisions of Section 4 of the Annex are to be applied ‘in accordance with international protection principles as set out in international instruments’.²³ The Article refers to the Refugee Convention 1951 and Protocol as examples.²⁴ Others are clearly also relevant, as is noted in the Explanatory Memorandum, which mentions for example, relevant provisions of the International Covenant on Civil and Political Rights 1966 (ICCPR)²⁵ and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984.²⁶

Following Section B on Preventive Measures, the ‘Treatment of the Stowaway on Board’ is covered in relative detail. Aside from the necessity of treating the stowaway in accordance with humanitarian principles (4.4.1), there is also imposed the responsibility placed upon shipmasters to ‘take appropriate measures to ensure the security, general health, welfare and safety of the stowaway while he/she is on board, including providing him/her with adequate provisioning, accommodation, proper medical attention and sanitary facilities’ (4.4.2). Consideration is also given to the need for the shipmaster to treat as confidential any declaration of intent to seek asylum on the part of the stowaway (4.6.3). Stowaway asylum seekers have also been the subject of an UNHCR ExCom Conclusion²⁷ recommending inter alia that:

Without prejudice to any responsibilities of the flag State, stowaway asylum-seekers should, whenever possible, be allowed to disembark at the first port of call and given the opportunity of having their refugee status determined by the authorities, provided that this does not necessarily imply durable solution in the country of the port of disembarkation.

Irrespective of whether or not the stowaway declares his intention to lodge an asylum claim, he is to be treated in accordance with human rights protection principles. Linked to this is that ‘every effort should be made to avoid situations where a stowaway has to be detained on board a ship indefinitely. In this regard States should co-operate with the ship-owner in arranging the disembarkation of a stowaway to an appropriate State’.²⁸

It is recognized that ‘obtaining agreement as to where a stowaway asylum-seekers should disembark is … no simple task’²⁹ and that, ‘as a result of disagreement between States over which of them is responsible for admitting the stowaway asylum-seeker, so-called orbit situations are created. In several such situations, stowaway asylum-seekers have been confined for many weeks and even months on board ships travelling from one port to another’.³⁰

Disembarkation is one of the thorniest issues currently taking centre stage in the context of rescue at sea scenarios generally. As shall be discussed, the international legal regime in this area does not adequately present a clear default State of disembarkation. In the case of stowaways however, the situation is provided for with more specificity, presumably owing to the lower numbers involved.³¹ The FAL Convention presents a comprehensive outline of stages in determining what to do about stowaways found on board a vessel. The Explanatory Memorandum explains as follows:

The question of expeditious disembarkation of stowaways is one of the most important regarding a solution to stowaway cases. It falls to the ship-owner to secure the repatriation of the stowaway, but it will often be necessary for this to happen in close co-operation with the parties involved, mainly the authorities in the first port of call after the stowaway has been detected … The standards concerning the obligation to allow disembarkation are primarily aimed at the authorities in the first scheduled port of call after the stowaway has been detected. If disembarkation in the first scheduled port of call however does not happen, the subsequent ports of call also have a corresponding obligation.³²

Further ports are called upon when it comes to the return of stowaways, such as the State of Nationality or Residence of the stowaway and the State of Embarkation.³³ All these duties are to be read in the light of the core provision section 4.2 regarding shared responsibility of all the parties involved. While the duty of cooperation and shared responsibility is also a hallmark of efforts to combat human smuggling and the trafficking in individuals, relevant documentation emphasizes the necessity to avoid confusion between cases involving stowaways and cases of human smuggling, the prevention of which should be sought through different methods.³⁴ Indeed, Resolution MSC.312(88) by which the Revised Guidelines were adopted by the MSC makes clear that the existence of the Guidelines is in no way to undermine efforts to combat the ‘separate problems of alien smuggling or human trafficking’.

Stowaways and the group presently referred to as irregular migrants and trafficked individuals comprise two different categories of individuals. While human rights violations must be prevented in both, especially due to the mode of travel which is both surreptitious and dangerous, their consequent vulnerability, and the possibility that asylum claims be made by members of either category, a basic difference is that while migrants are not to be subject to prosecution for the mere fact of being smuggled,³⁵ stowaways on the other hand are considered to be ‘illegal entrants’ once they arrive or enter a State without the required documents.³⁶ To this end, Standard 4.3.3.1 permits prosecution of stowaways should the individual Member State determine this to be appropriate.

Furthermore, stowaways are not legally considered to be victims of organized crime. The smuggling of migrants and trafficking in individuals are facets of organized crime. The means of their repression must therefore be different. Another stark difference relates to the circumstances surrounding their detection and the consequent question as to which State is to receive the stowaways or migrants/trafficked individuals. Precisely because maritime migrant smuggling or trafficking in individuals often culminates in a rescue scenario or interception exercise, there is an urgency often necessitated by the imminent threat to life with which the individuals are faced. Large numbers of persons are loaded onto vessels which in turn need to disembark these individuals at an appropriate port. Due to the numbers involved and the high incidence of asylum claims made, coupled with a lack of solidarity among States in this regard, disembarkation of those rescued at sea is a grave problem. This is not so apparent in the case of stowaways, where, as has been noted, the FAL Convention succeeds in delineating a number and hierarchical order for States to receive stowaways. Further, there is no need, indeed, there is the exhortation for shipmasters not to deviate from the planned voyage in order to seek to disembark stowaways save in three limited circumstances, namely: i) where permission to disembark the stowaway has been granted by the public authorities of the State to whose port the ship deviates; ii) in the case where repatriation has been arranged elsewhere with sufficient documentation and permission for disembarkation; or iii) where there exist extenuating security, health, or compassionate reasons.³⁷

16.3 Maritime Migrant Smuggling and Trafficking in Individuals

Both maritime migrant smuggling and trafficking in individuals using sea channels are facets of organized crime and are among the fastest-growing transnational crimes today. Yet, despite this innate connection to maritime affairs, the UNCLOS fails to consider either offence in its provisions.³⁸ However, aside from the fact that the jurisdictional powers available to States within the various maritime zones do indeed continue to apply insofar as concerns action available for the repression of these crimes, it would be a gross underestimation of the pertaining regulatory regime were one to stop at the jurisdictional powers available under the UNCLOS. What is also needed is a consideration of other aspects of the international legal regime such as rescue at sea (itself an obligation found in the UNCLOS and elaborated upon, despite lack of agreement in interpretation, in the SAR Convention and SOLAS)³⁹ and also, refugee law and humanitarian principles of protection, mainly, in this regard, the obligation of non-refoulement.

The first attempt at a holistic legal regime catering for the crimes of migrant smuggling and trafficking in individuals, was the creation of two Protocols to the CATOC.⁴⁰ CATOC defines an organized criminal group for the purposes of the Convention as ‘a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit’.⁴¹ Indeed, organized crime groups function like any business: their motivation is profit, and they operate on business-like principles such as taking up market opportunities—the difference being that the markets they exploit are prohibited. All the hallmarks of an organized criminal syndicate, based on a clear hierarchical structure and division of labour, are evident in these crimes. To name but a few of the characteristics, one finds well-equipped forgery workshops to create the essential travel documents; the ability to modify the syndicate’s operations to adapt to changing risks by using different routes, entry schemes, and conveyances; operation centres, accommodations, and hideouts in transit countries; the economic wealth for substantial bribes and the best forms of technology; the contacts and networks required to secure the assistance of corrupt officials; diversification of criminal activities and an ability to use violence to obtain payments from undocumented migrants. Lastly, the inherent difficulty of controlling such crimes due to their transnational nature is exacerbated by the fact that people smuggling and trafficking are usually classed as ‘safe crimes’: the criminals usually benefit from absent or low criminal sanctions and from the silence of their victims (due to their illegal status, fear of retribution by the criminals, and risk of deportation). Furthermore, they are sometimes aided by official corruption—of local police, border guards, and customs officers.

These Protocols are to be applauded both for the regulatory framework provided and also for their recognition of the human element central to these offences.⁴² For instance, in the Smuggling Protocol, the rights and powers of States in the context of interception exercises are staged alongside State obligations as dictated by refugee law. It also presents a regime which works within the recognized system provided by the UNCLOS—avoiding problems of flag State exclusivity on the high seas, not by challenging the general principles of the law of the sea but rather, by working within their parameters. An overview of the salient features of the Protocols follows, to be followed up with a discussion of the problems related to rescue at sea.

16.3.1Trafficking in individuals, especially women and children

‘Effective action to suppress the crime of trafficking in individuals requires a comprehensive approach’. This is the opening sentence of the relatively brief Preamble to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime 2000 (Trafficking Protocol).⁴³ This Protocol, which supplements the CATOC and is to be interpreted together with it,⁴⁴ is the first universal instrument to address all aspects of trafficking in persons.⁴⁵ The statement of purpose, in Article 2, expresses the aims of the Protocol to be three-fold, focusing on prevention of the crime, protection of the victims and promotion of cooperation amongst Parties to achieve these ends.

16.3.1.1 The crimes compared

The characteristic features of this form of organized crime are brought out in the definition provided in Article 3(a).⁴⁶ It is through this definition that the differentiating factors to migrant smuggling are highlighted. Article 3(a) of the Trafficking Protocol presents the reader with a complex definition involving the acts committed, the means used and the intended purpose and, contrary to the related crime of migrant smuggling, further envisages the use of force, fraud, coercion, or exploitation directed at the individual: