Chie KOJIMA
Professor of International Law, Faculty of Law, Musashino University, Tokyo, Japan; Ph.D. (Chuo), LL.M. (Yale) and J.S.D. (Yale).*

 

Introduction

The United Nations High Commissioner for Refugees reported that the number of forcibly displaced people totaled 65.6 million around the world in 2016.¹ Among them are the thousands of boat people who went missing at sea or were forcibly returned, by government vessels operating for border security, to their country of origin or departure where they faced persecution and threats to their lives and freedom. These operations were often described as turnback² or pushback operations. Asia-Pacific is not an exception to these trends. In the wake of increased flow of boat people departing from Southeast Asia to Australia, the Australian Government initiated Operation Sovereign Borders, a military-led border security operation to combat maritime people smuggling, in September 2013. While the Australian government does not disclose the details of Operation Sovereign Borders, media and human rights NGOs disclosed that the responsible Australian agencies conducted the operations in international waters in a manner that disregards the safety and well-being of the asylum seekers.³

Amnesty International’s report entitled “By Hook or by Crook”⁴ revealed a number of alleged forcible actions taken against asylum seekers at sea during the operations of the Operation Sovereign Borders. Examples of alleged forcible actions stated by the asylum seekers during the interviews include boarding in international waters without permission, transfer to boats that were less well-equipped than their original boats, forcible actions by armed personnel towards unarmed crew/passengers, physical and/or verbal abuse⁵ and ill-treatment by law enforcement officers, such as confiscation of food and denial of medicines and medical care.⁶ It has been criticized that these operations were not of the character of a rescue operation as required under the law of the sea and even violated refugee and human rights law.⁷ Scholars, however, have not paid much attention to the legality of means used in such turnback operations due to a lack of publicly available information on maritime law enforcement.

 

I. Jurisdictional Basis of Turnback Operations under UNCLOS

A question arises as to whether the State conducting such operations in international waters has a valid jurisdictional basis in international law. According to the United Nations Convention on the Law of the Sea (UNCLOS), any coastal State has a right to exercise control over asylum seekers’ boats, but the degree of control varies according to where the operations take place. Article 19(2) of UNCLOS lists the loading or unloading of any person contrary to the immigration law in the territorial sea as one of the non-innocent activities of foreign vessels. The coastal State may adopt laws and regulations for the prevention of infringement of such laws⁸ and take necessary steps in the territorial sea to prevent passage, which is considered as non-innocent.⁹ In the contiguous zone, the coastal State may exercise the control necessary to prevent infringement of its immigration law within its territory or territorial sea and to punish infringement of such law committed within its territory or territorial sea.¹⁰ However, the degree of control is limited in the exclusive economic zone (EEZ) and in the high seas. Article 110(1)(d), which stipulates the right to visit a ship without nationality, may be the only applicable rule when interdicting an asylum seekers’ boat in international waters. This provision, however, allows government vessels to only board and search non-government vessels. It does not authorize transferring passengers to lifeboats or returning them outside the territorial sea of the country of departure.¹¹

The Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (2000) stipulates more explicitly than UNCLOS the right to board and search a vessel: Article 8(2) of the Protocol provides that a State Party to the Protocol may exercise a right to board and search a vessel exercising freedom of navigation in international waters, by acquiring the consent of the flag State, and take “appropriate measures with respect to the vessel and persons and cargo on board”, if evidence proves that the vessel is engaged in the smuggling of migrants by sea. Article 9(1)(a) of the Protocol obliges States to ensure the safety and humane treatment of the persons on board the ship when taking such measures.¹² As a State party to the Protocol, Australia is under the obligation to ensure humane treatment of asylum seekers on board ships intercepted by its public authorities.¹³

 

II. The Use of Force in Maritime Law Enforcement

It is also highly questionable whether the forcible actions taken during the turnback operations, which were disclosed in the Amnesty International’s report, meet the international standards on the use of force in maritime law enforcement. The use of force in maritime law enforcement has the character of police force. Therefore, in principle, it has to be distinguished from the use of force against a State in the sense of Article 2(4) of the Charter of the United Nations. However, making a distinction between these two can be complex and the maritime law enforcement can be sometimes regarded as a threat or use of force under the Charter, depending on situations of the case, such as the existence of an international dispute in the area in question and jurisdictional basis.¹⁴ This is not the case with asylum seekers’ boats that are sailing without nationality; the use of force against these asylum seekers cannot be a threat to the territorial integrity or political independence of their countries of origin in the sense of Article 2(4) of the Charter.

With regard to the manner and the degree of force that are permissible in maritime law enforcement, UNCLOS is not very clear. Generally speaking, if UNCLOS allows the exercise of enforcement jurisdiction, law enforcement with police force is expected. Certain terms such as “necessary steps” under Article 25(1) or “control necessary to (…)” under Article 33(1) allude to a certain exercise of police force in the territorial sea and contiguous zone by a coastal State. Even in the high seas, “minimum public order on the high seas requires that all States have some general police powers”.¹⁵ Police force necessary for detention and arrest are implied under Articles 105, 109, and 111, while Article 110 does not imply “any further powers of law enforcement beyond those powers of visit, inspection and search”.¹⁶ The wording in Article 110(2) stating that the examination on board the ship “must be carried out with all possible consideration” may leave a room for interpretation in relation to a stateless ship with asylum seekers on board.¹⁷

International rules on the use of force in maritime law enforcement have been developed as customary international law,¹⁸ whose rules are expressed in non-binding instruments and international judgments. The general provision 5 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,¹⁹ which were adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders in 1990, describes law enforcement officials’ duty to use force in proportion to the seriousness of the offence and the legitimate objective to be achieved, to minimize damage and injury, to respect and preserve human life, and to ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment. The Principles also state that States have a duty to adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials²⁰ as well as law enforcement officials’ duty to apply non-violent means before resorting to the use of force and firearms.²¹ States must ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.²²

 In the maritime context, the Judgment in the Saiga No. 2 Case²³ stated that “[i]nternational law […] requires that the use of force must be avoided as far as possible. Where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law”.²⁴ It further stated that “[i]t is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered”.²⁵ In this case, there was no resistance when boarding the ship or evidence of the use or threat of force from the crew. Guinean officials fired indiscriminately while on the deck and used gunfire to stop the engine of the ship. Therefore, the Tribunal found that Guinea used “excessive force and endangered human life before and after boarding the Saiga”.²⁶

In the Guyana v. Suriname Arbitration,²⁷ the Tribunal also accepted the argument that “in international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary”.²⁸ The same standard was restated in the 2014 MV Virginia G Case.²⁹

 

Conclusion

In the light of customary international law on the use of force in maritime law enforcement, the alleged forcible actions in the Australia’s turnback operations against asylum seekers boats cannot be considered “unavoidable, reasonable and necessary”, let alone in the case where there was no resistance or violence from these boats. In the reported instances above, the principle of humanity is also infringed by the excessive use of force. Furthermore, these operations are mostly carried out in international waters. Therefore, the resort to forcible measures against boat people is not only excessive but also without adequate legal jurisdictional basis.

The customary rules on the use of force in maritime law enforcement should be observed by all States. In order to safeguard abuse of power in the name of maritime security operations, the humanity aspect of UNCLOS must be reinforced. One way to reinforce it is to codify the customary rules on the use of force in maritime law enforcement or to adopt draft principles at the International Law Commission. Another way is to integrate human rights norms into UNCLOS through interpretation, using the principle of systematic integration expressed under article 31(3)(c) of the Vienna Convention on the Law of Treaties.³⁰ In the South China Sea Arbitration,³¹ environmental treaties were referred to interpret UNCLOS provisions. Why not interpret UNCLOS provisions by importing human rights norms in a similar way?

 

*  The original version of this note was presented at the 6th Biennial Conference of the Asian Society of International Law, Asia and International Law in Times of Uncertainty, 25-26 August 2017, Seoul. The author would like to thank Ms. Katherine Cherry D. Bandanwal and Mr. Julian Hinz for their assistance in research and reviewing this note.

1. UNHCR, Global Trends: Forced Displacement in 2016, available at < http://www.unhcr.org/5943e8a34.pdf >. [↩]
2. Lieutenant General Angus Campbell DSC, AM, Commander Joint Agency Task Force, Operation Sovereign Borders, defined a turnback in a public session of the Legal and Constitutional Affairs Legislation Committee of the Australian Senate as “where a vessel is removed from Australian waters and returned to just outside the territorial seas of the location from which it departed”, see Commonwealth of Australia, Legal and Constitutional Affairs Legislation Committee of the Senate, Official Committee Hansard – Estimates, 23 February 2015, p. 137. [↩]
3. Violeta Moreno-Lax, The Interdiction of Asylum Seekers at Sea: Law and (mal)practice in Europe and Australia, Policy Brief 4, Kaldor Centre for International Refugee Law, May 2017, p. 3; The Senate, Legal and Constitutional Affairs References Committee, Payment of cash or other inducements by the Commonwealth of Australia in exchange for the turn back of asylum seekers boats, Interim report, May 2016, p. 14. [↩]
4. Amnesty International, By Hook or by Crook: Australia’s Abuse of Asylum Seekers at Sea, 2015, pp 28-29, available at <https://www.amnesty.org/download/Documents/ASA1225762015ENGLISH.PDF>. [↩]
5. Id. at 28-29. In the incident of July 2015, passengers who were directed to return to Indonesia were told, “If you come back, we’ll shoot you”. In other incidents between late 2013 and early 2014, Australian officials allegedly kicked, beat and slammed asylum seekers, tied their hands and legs, injected with something that made them sleep, used pepper-spray to control them, and threatened to break their legs if they did not obey the orders. Even minors experienced these physical and/or verbal abuses. [↩]
6. Id. at 13-29. [↩]
7. Moreno-Lax, supra note 3, p.5. [↩]
8. UNCLOS, Art. 21(1)(h). [↩]
9. UNCLOS, Art. 25(1). [↩]
10. UNCLOS, Art. 33(1). [↩]
11. Furthermore, transferring passengers to lifeboats nor returning asylum seekers’ boats to the edge of the territorial waters of the country of departure does not satisfy the international standard of search and rescue operations. For more discussions on this point, see, Moreno-Lax, supra note 3, at 7-8. [↩]
12. In the context of the Mediterranean Sea, the UN Security Council Resolution 2240(2015), which authorized UN Member States to inspect on the high seas off the coast of Libya vessels that are suspected of being used for migrant smuggling or human trafficking from Libya, stated that coordinated efforts to deter migrant smuggling and human trafficking should not undermine the human rights of individuals (para. 12). The Resolution authorized Member States to use all measures commensurate to the specific circumstances in confronting migrant smugglers or human trafficker and in full compliance with international human rights law (para.10). UN Doc. S/RES/2240 (2015), available at <http://unscr.com/en/resolutions/doc/2240>. [↩]
13. Australia signed the Protocol on 21 December 2001 and ratified it on 27 May 2004. The ratification status of the Protocol can be checked at: <https://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XVIII/XVIII-12-b.en.pdf>. [↩]
14. In the South China Sea Arbitration, the Tribunal found that the stand-off at the Second Thomas Shoal represents a military situation, though the Philippines claimed that China’s conduct at the Shoal was carried out for civilian or law enforcement purposes due to the fact that China’s conduct at the Shoal was largely carried out by China Coast Guard and China Maritime Surveillance vessels seeking China’s purported jurisdiction.\, see South China Sea Arbitration (Phil. v. P.R.C.), Award of 12 July 2016, PCA Case No. 2013-19, paras 1131 and 1161. The distinction between the civilian law enforcement authorities such as coast guards and military forces is not the key factor to determine whether the use of force is within the “police force” – whether it is reasonable or excessive – amount to the use of force falling under the scope of Article 2(4) of the UN Charter. For the distinction between maritime law enforcement and the use of force at sea, see Patricia Jimenez Kwast, Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of Guyana/Suriname Award, 13(1) Journal of Conflict & Security Law 49-91 (2008). [↩]
15. Douglas Guilfoyle, Article 110, in United Nations Convention on the Law of the Sea: A Commentary (Alexander Proelss ed., 2017), p. 768. [↩]
16. Id. p. 770. [↩]
17. Id. [↩]
18. Kwast, id. p. 56; David J. Letts, The Use of Force in Patrolling Australia’s Fishing Zones, 24 Marine Policy 149, 154–55 (2000). Regarding the use of force in maritime law enforcement in the high seas, at least such customary rules may apply to cases involving piracy, slave trade and stateless ships. See, Guilfoyle, supra note 15, p. 768. [↩]
19. UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, available at <http://www.ohchr.org/Documents/ProfessionalInterest/firearms.pdf>. [↩]
20. Id. General provision no. 1. [↩]
21. Id. General provision no. 4. [↩]
22. Id. General provision no. 7. [↩]
23. M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports 1999. [↩]
24. Id. para. 155. [↩]
25. Id. para. 156, citing the I’m Alone and the Red Crusader. [↩]
26. Id. paras 158-159. [↩]
27. Guyana v. Suriname, Award of the Arbitral Tribunal of the 17 September 2007, Reports of International Arbitral Awards XXX, pp.1-144. [↩]
28. Id. para. 445, citing the I’m Alone, Red Crusader and M/V Saiga (No.2). [↩]
29. M/V “Virginia G” (Panama/Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports 2014, para. 360. [↩]
30. International Law Commission, Fragmentation on International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 (13 April 2006), available at <www.legal.un.org/ilc/documentation/english/a_cn4_l682.pdf, paras 410-423>. [↩]
31. South China Sea Arbitration (Phil. v. P.R.C.), Award of 12 July 2016, PCA Case No. 2013-19. [↩]

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