Intelligence Gathering in the Exclusive Economic Zone

The article explores the contours of intelligence gathering in the Exclusive Economic Zone (EEZ) under the international law of the sea. Intelligence gathering in the maritime domain is significant for military and law enforcement purposes and for both coastal States and other States. Intelligence gathering attains even more prominence in the EEZ due to the sensitive location and importance of resources to the coastal State, while the sui generis legal nature of this zone adds further complexity to this inquiry. Indeed, the law of the sea, as reflected in the Law of the Sea Convention, neither explicitly prohibits nor permits the collection of intelligence by other States in the EEZ. Equally, it is silent on the permissibility of intelligence gathering on the part of the coastal State. While acknowledging the complexity of legal issues pertaining to the EEZ, this article asserts that intelligence gathering within the EEZ would fall under a presumption of unlawfulness favoring the coastal State when the intelligence pertains to its economic interests. In contrast, the presumption would favor other States, rather than the coastal State, when the gathering of intelligence is a mere expression of the jus communicationis of the other State. Moreover, other pertinent rules of international law, ranging from the prohibition of the threat of the use of force and the abuse of right to the customary right of approach may find application when deciding whether the intelligence gathering activity violated the rights of the coastal State or other States. Intelligence gathering is certainly a difficult question to address, yet one that international law of the sea affords answers

The ‘Left-to-Die Boat’ incident of March 2011: Questions of International Responsibility arising from the Failure to Save Refugees at Sea

On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa at the end of March 2011. After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. In this particular incident, it is remarkable that many of the vessels or helicopters, which allegedly failed to save these people, were at that time taking part in NATO’s Operation Unified Protector. This has elicited criticism about NATO’s and its Member States’ failure to respond to the relevant distress calls and to anticipate adequately for an exodus of asylum seekers and refugees from Libya in the course of the said Operation. The long list of ‘failures’ in this respect was identified in a Report adopted by the Parliamentary Assembly Committee on Migration, Refugees and Displaced Persons of the Council of Europe (29 March 2012).The present paper discusses the issues of responsibility for human rights violations arising from this incident, including the potential responsibility of NATO. Firstly, there is a succinct reference to the primary obligations incumbent upon the States or NATO in this regard, namely obligations under human rights law. This is followed by a discussion of the secondary rules of international responsibility and their application to this particular incident; in particular, the responsibility of each and every State involved in the latter as well as of NATO is assessed accordingly

Recent Non-Entree Policies in the Central Mediterranean and Their Legality: A New Form of Refoulement?

The recent non-entree policies of Italy and other European States, including the assistance given to Libyan authorities for conducting rescue operations and pulling people back to Libya and the closing of ports to NGOs having saved migrants at sea, have aroused considerable controversy. Italy and the EU are heavily criticised as being accomplice to human rights abuses in Libya, while an application concerning relevant issues is pending before the European Court of Human Rights. This article sheds some light on the legality of such policies from the viewpoint of international law of the sea and then addresses whether they amount to a violation of the principle of non-refoulement. The article concludes that, although morally deplorable, the majority of these practices fall short of being in breach of the relevant rules of international law