Issue 07 2019-2020

Appropriate Measures at Sea: Extraterritorial Enforcement Jurisdiction over Stateless Migrant Smuggling Vessels


The recent migrant crisis in the Mediterranean Sea has clearly revealed the unclear legal basis for interdicting stateless migrant smuggling vessels in international waters. Despite claims to unilateral enforcement
powers by some Western states, the law of the sea does not provide a strong jurisdictional basis for seizing such vessels outside territorial waters. Western destination states, particularly the United States (US), have responded to the legal lacuna surrounding stateless vessels by strategically weaving ambiguity through the transnational crime instruments regulating smuggling of drugs and migrants at sea, and then claiming the ambiguity permits the exercise of coercive measures extraterritorially. The recent European Union naval operations in the Mediterranean have substantially concretized the ambiguity in the Migrant Smuggling Protocol as permitting seizure of stateless vessels. While new maritime threats require flexible interpretation of the law of the sea, any changes to extraterritorial enforcement powers must reflect the common understanding of states. Leaving revision of the law to instrumentally ambiguous treaty drafting and subsequent practice instead risks favouring the interests of powerful states at the expense of individual human rights and developing states.

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