Abstract
To the untrained eye, the only way to counter criminality in international waters is via the use of navies operating in a constabulary role across the oceans of the world. They certainly have a role to play, but it would be a mistake to say that just because warships provide a solution in one scenario the same ‘business model’ would continue to deliver success in another.
In this article, the author seeks to demonstrate why the successes displayed by maritime forces off the coast of Somalia in countering piracy cannot have the same effect when redeployed in the Mediterranean, where smuggling and human trafficking are now stealing the headlines as the biggest maritime blight on Europe. He does so by first explaining why navies were free to operate effectively around the Horn of Africa through the legal framework, both internationally and domestically, that enabled that operation. He then contrasts that with the lack of a similar legal framework in the Mediterranean that has rendered impotent any international efforts to deter criminal gangs from operating freely around the coast of Libya.
The author concludes that, unless more is done to combat the root causes of transnational crime ashore, navies will continue to focus on delivering a short-term means to address the symptoms rather than seeking a permanent cure.
Lt Cdr Oliver Clark RN is a UK lawyer; however, the views and opinions expressed in this article are his own and are not intended to reflect national or Royal Navy policy.
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Notes
- 1.
United Nations Convention against Transnational Organised Crime (2000).
- 2.
UNCLOS (1982), Arts.100–105.
- 3.
The State to which the ship is registered and whose flag it flies.
- 4.
ITLOS M/V ‘Saiga’ (No.2) (1999), 1355.
- 5.
UNSCR 1816 (2008).
- 6.
Transitional Federal Government.
- 7.
The most recent UNSCR on piracy (UNSCR 2246 (2015)) once again reaffirms the renewed consent of the Somali authorities, maintaining that this resolution does not establish customary international law in respect of any other states.
- 8.
ECHR (1950), European Convention of Human Rights, especially the rights not to be subject to inhumane and degrading treatment (Art 3), not to be discriminated against (Art 14), the right to a fair trial (Art 6) and the prohibition of collective expulsion (Protocol No.4). In addition, Art 19 of the Charter of Fundamental Rights of the EU (2000) provides: ‘1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subject to the death penalty, torture or other inhumane or degrading treatment or punishment.’
- 9.
Since the time of writing it has been used again in UNSCR 2292 (2016) concerning the prohibition on the trafficking of illegal arms into and out of Libya. Whilst this UNSCR does not resolve the problem, it is complementary to the author’s view that it is the criminal, and in this case terrorist, networks that operate ashore in Libya and the MENA region that are the means by which this issue will be resolved.
- 10.
For further detail as to the patterns of human trafficking see the UNODC report on human trafficking (2016) exposes modern form of slavery.
- 11.
Protocol against the Smuggling of Migrants by Land, Sea and Air (2000).
- 12.
Indeed, Parliamentary Assembly of the Council of Europe (2011), states at paragraph 11: ‘The Assembly also considers it essential that efforts be made to remedy the prime causes prompting desperate individuals to risk their lives by boarding boats bound for Europe. The Assembly calls on all member States to step up their efforts to promote peace, the rule of law and prosperity in the countries of origin of potential immigrants and asylum seekers.’
- 13.
Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children (2000).
- 14.
ECHR (2009)—Judgement, 23 February 2012.
- 15.
- 16.
See Royal Courts of Justice (2015), 715 for a recent example of the extent of extra-territorial application of the ECHR.
- 17.
See ECHR (2009), letter of 15 July 2009 from Mr. Jacques Barrot, Vice-President of the European Commission.
- 18.
Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children (2000), Art.6 (Protection of victims of trafficking in persons).
- 19.
References
Charter of Fundamental Rights of the EU (2000) (2000/C 364/01), http://www.europarl.europa.eu/charter/pdf/text_en.pdf. Accessed 27 Oct 2017
ECHR (1950) European convention of human rights, 4 November 1950, http://www.echr.coe.int/Documents/Convention_ENG.pdf. Accessed 28 Oct 2017
ECHR (1999) of Bancovic and others v Belgium, ECHR (52207/99), http://www.rulac.org/assets/downloads/ECtHR_Bankovic_Admissibility.pdf. Accessed 05 Sep 2017
ECHR (2007) of Al Skeini and others v The United Kingdom, ECHR (55721/07), http://www.refworld.org/pdfid/4e2545502.pdf. Accessed 05 Sep 2017
ECHR (2009) of Hirsi Jamaa and Others v. Italy (27765/09) – ECHR, http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-109231&filename=001-109231.pdf. Accessed 05 Sep 2017
ITLOS M/V ‘Saiga’ (No.2) (1999) Saint Vincent and the Grenadines v Guinea, ITLOS case No.2; 38 ILM 1323, 1355, https://www.itlos.org/cases/list-of-cases/case-no-2/. Accessed 05 Sep 2017
Parliamentary Assembly of the Council of Europe (2011) Resolution 1821 (21 June 2011), http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=18006&lang=en. Accessed 05 Sep 2017
Protocol against the Smuggling of Migrants by Land, Sea and Air (2000) supplementing the United Nations Convention against Transnational organised Crime (Migration Protocol), https://www.unodc.org/documents/southeastasiaandpacific/2011/04/som-indonesia/convention_smug_eng.pdf. Accessed 05 Sep 2017
Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children (2000) supplementing the United Nations Convention against Transnational Organised Crime (Trafficking Protocol), https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-a&chapter=18&lang=en. Accessed 05 Sep 2017
Royal Courts of Justice (2015) of Al-Saadoon and Others v. Secretary of State for Defence, [2015] EWHC (Admin) 715, https://www.judiciary.gov.uk/wp-content/uploads/2015/12/r-al-saadoon-v-secretary-of-state-for-defence-2015-ewhc-715-admin.pdf. Accessed 05 Sep 2017
UNCLOS (1982) United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 397
UNHCR Press release (2009a) UNHCR deeply concerned over returns from Italy to Libya, 7 May 2009, http://www.unhcr.org/news/press/2009/5/4a02d4546/unhcr-deeply-concerned-returns-italy-libya.html. Accessed 28 Oct 2017
UNHCR Press release (7 May 2009b) http://www.unhcr.org/news/press/2009/5/4a02d4546/unhcr-deeply-concerned-returns-italy-libya.html. Accessed 05 Sep 2017
United Nations Convention against Transnational Organised Crime and the Protocols thereto (Palermo, 2000), https://www.unodc.org/documents/middleeastandnorthafrica/organised-crime/UNITED_NATIONS_CONVENTION_AGAINST_TRANSNATIONAL_ORGANIZED_CRIME_AND_THE_PROTOCOLS_THERETO.pdf. Accessed 05 Sep 2017
UNODC report on human trafficking (2016) http://www.unodc.org/documents/data-and-analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf. Accessed 27 Oct 2017
UNSCR 1816 (2008) United Nations Security Council Resolution S/RES/1816 (2008), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1816(2008). Accessed 05 Sep 2017
UNSCR 2246 (2015) United Nations Security Council Resolution, S/RES/2246 (2015), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2246(2015). Accessed 05 Sep 2017
UNSCR 2292 (2016) United Nations Security Council Resolution, S/RES/2292 (2016), http://unscr.com/en/resolutions/2292. Accessed 28 Oct 2017
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Clark, O. (2018). From Piracy to Palermo: The Changing Challenges of Maritime Crime. In: Schildknecht, J., Dickey, R., Fink, M., Ferris, L. (eds) Operational Law in International Straits and Current Maritime Security Challenges. Operational Maritime Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-72718-9_11
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