The essential role of Malta in drafting the new regional agreement on migrants at sea in the Mediterranean basin

The Arab Spring recently highlighted the problem of migrants at sea and the shortcomings of the international legal framework. Indeed, due to the social uprisings in Tunesia and Lybia, thousands of people tried to reach Europe by sea. This is a dangerous journey, as these asylum seekers often travel in unseaworthy vessels. As a result of the Arab Spring, it is estimated that more than 1.500 people drowned or went missing while attempting to cross the Mediterranean to reach Europe in 2011. These events are a reminder of the extremes that people in difficult situations sometimes resort to. The international community is aware that this problem has to be tackled as soon as possible in order to prevent further loss of life. This article first deals with the current international legal framework concerning migrants at sea and its shortcomings. Secondly, we take a look at how Malta interprets the existing obligations. Thirdly, recent developments within the International Maritime Organization (IMO) on the Draft Regional Agreement for the Mediterranean Basin – an agreement hoping to solve the problem of disembarking migrants at sea in the Mediterranean – will be highlighted. Finally, we will discuss how Malta – a small State of only 316 km2 – influences the content of the agreement and how this island itself is being affected by it

Migrants in the Mediterranean: do's and don'ts in maritime interdiction

Mediterranean European Member States have to deal with thousands of migrants arriving by sea every year. Frontex – the European External Border Agency – organises joint surveillance operations at sea to interdict these migrant boats, helping States to cope with the problem. This article discusses the legality of these maritime interdictions done by Frontex according to the Law of the Sea, as well as the conformity of the operations with the non-refoulement principle

Wet en duiding: vervoer

Dit geannoteerd wetboek in de reeks Larcier Wet Duiding - Economisch recht bespreekt de belangrijkste bepalingen over binnenvaart, gecombineerd vervoer, luchtvaart en luchtvervoer, spoor, tussenpersonen, transportverzekering, zeevaart en wegvervoer

The Law of the Sea and Human Rights in the Hirsi Jamaa and Others v. Italy Judgment of the European Court of Human Rights

Nowadays, it seems that the age of the generalist is passing in international law. The teaching as well as the practice of international law is often broken down into specialist sub-fields such as the law of the sea and international human rights law. The fact that they have their own sources, their own mechanisms to apply in cases of non-compliance and their own courts and tribunals, creates the idea that that these ‘self-contained’ regimes are separate from general international law. As indicated by a study of the International Law Commission (ILC), this ‘fragmentation’ of international law generates the possibility of conflicting norms and regimes. It is sometimes suggested that for example the issue of how best to regulate migration by sea bears scars of a fragmentary approach to law-making. It has been put forward that the substantive content of the law of the sea has been isolated from potentially important humanitarian considerations. The law of the sea would therefore not be very susceptible to developments in international human rights. It is true that the law of the sea encounters many of the problems that arise when specialized sets of rules overlap, especially within the framework of the 1982 Law of the Sea Convention (LOSC). However, although it is unlikely that the LOSC – or the law of the sea more generally – will be accorded a central role in the history of the international law of human rights, it may be deserving of more than just a footnote. Indeed, the law of the sea, its instruments and institutions have not only a direct contribution to make to human rights law, but in some instances even prove to be sufficient to protect individual human rights. This idea will be the research question of this paper: would the law of the sea provide sufficient humanitarian guarantees to deal with the case Hirsi Jamaa and Others v. Italy (2012) in a way that the rights of the migrants would have been protected

Migrant smuggling by sea: tackling practical problems by applying a high-level inter-agency approach

Huge disparities in wealth across the world, the denial of fundamental rights in some countries and natural disasters have resulted in broad population movements, also by sea. The most famous examples are without a doubt the flow of Vietnamese boat people in the late 1970s and the 2001 incident with the MV Tampa – a ship carrying over 400 migrants – that caused a dispute between Indonesia and Australia. But also more recently, as a result of the Arab Spring, maritime migration came into the picture as hundreds of people died in the Mediterranean trying to reach Europe in 2011. However, as a sea journey is often difficult and dangerous, migrants request the help of smugglers to reach their destination. The first part of this paper will deal with the question why migrant smuggling is regarded as a maritime safety and a maritime security problem. To deal with this problem, States took several initiatives on both the international and the regional level to combat smuggling. These initiatives will be dealt with in the second and in the third part of this paper. In a fourth part we will take a look at some of the problems that may arise in applying these initiatives in practice. Finally, in the last part, some suggestions will be made to improve the legal framework by proposing a high-level inter-agency approach