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irregular migration at sea challengesA. The instruments
1. UNCLOS, 19822. UN Convention against transnational organized
crime, 20003. Human rights law and Refugee law instruments
B. The organs1. UNODC2. IMO (International Maritime Organization)3. UNHCR4. IOM (International Organization on Migration)
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Duty to render assistance1. Every State shall require the master of a ship flying its
flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;
(c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.
2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.
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International Convention on Maritime Search and Rescue (SAR)
Adoption: 27 April 1979; Entry into force: 22 June 1985
«Duty of assistance to any person in distress (regardless of nationality or status) and notion of Safe Place»
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- International Convention for the Safety of Life at Sea, 1974
“…States have to guarantee they will conclude the agreements necessaries for search and rescue through the institution of specific structures»
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Zone SAR Italia e Malta
non-refoulement Principle
Art. 33.1 1951 Refugee Convention
Art. 3 European Convention on Human Rights and European Court Case Law
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1951 Geneva Refugee Convention«Refugee» Definition
Art. 1/A:
For the purposes of the present Convention, the term "refugee" shall apply
to any person who : owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to
return to it.
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non-refoulement Principle“ARTICLE 33. PROHIBITION OF EXPULSION OR RETURN ('REFOULEMENT) 1. No Contracting State shall expel or return ('refouler’) a refugee in
any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. ”.
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10. …a State has jurisdiction over
people under its de facto control
who are located on the high seas.
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20. Measures to ensure that access to asylum procedures is effective (namely, that applicants have legal and physical access to asylum procedures and the necessary facilities for submitting applications) include availability of legal advice and interpretation, and adequate time for the preparation of claims.
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55. Processing onboard maritime vessels is generally not appropriate. In exceptional circumstances, that would need to be defined further, initial profiling or prescreening onboard the maritime vessel by the intercepting State may be one solution to ensure that persons with international protection needs are identified and protected against refoulement. Following profiling, those persons identified as having potential protection needs would need to be disembarked in the territory of the intercepting State
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Hirsi v. Italy, 23.2.2012
For the first time a condamnation for violation of art. 3 (Torture), art. 13 (Effective Remedy), art. 4 Protocol 4 (Prohibition of Collective Expulsion of Aliens).
Collective Refoulement at the Border and in High Seas = to Refoulement of a Person already in the State Territory .
(par.81): Control de jure et de facto once the Italian Ship intervenes
Art. 3 Violation:
1) for the Conditions in Libyan Centres of Detention
2) for the risk of indirect Refoulement
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Treaty on the Functioning of European UnionArt. 78.11. The Union shall develop a common policy on
asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.
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CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION Art. 19Protection in the event of removal,
expulsion or extradition Collective expulsions are prohibited. No one may be removed, expelled or
extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
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Operation MARE NOSTRUMHumanitarian operation managed and financed by Italy; it
began on 18 October 2013 in response to the shipwreck of 3 October 2013, in which 368 people lost their lives.
The operation aims to search and rescue of persons in distress at sea.
The Italian naval units have carried out the search and rescue operations, in the Italian territorial sea and in the SAR area, also close to the Libyan coast.
In one year, 100,000 migrants were rescued, 9,000 of them are minors; nearly 3,000 are victims of shipwrecks and missing.
500 smugglers were arrested and three ships 'mother' (ie vessels carrying migrants at some distance from the coast and then leave them) were seized .
The operation costs to Italy 9 millions Euros per month. It is expected to close by the end of the year.
Frontex 25
Operation TritonTriton, an operation coordinated by Frontex, has began on
the 1° of November 2014. The host Member State is Italy. It is an operation of borders control and not of search and
rescue.The operation Triton aims to combat illegal immigration
and to fight against human trafficking.The seized ships will be destroyed.The operations takes place in the Central Mediterranean,
in particular within the 30 miles from the Italian coast.The operations will cost 2.9 million Euros per month,
financed by Frontex.
Frontex 26
The participating States
Frontex 27
Mare Nostrum Operation Area
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Frontex 31
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