WRITTEN QUESTION E-3112/02

by Charles Tannock (PPE-DE) to the Commission

(30 October 2002)

Subject: Legality or otherwise of intercepting vessels on the high seas

An increasing number of people are being illegally trafficked into the European Union by sea, with many arriving in Greece and Italy from the Balkans and others into Spain having departed from North Africa. The authorities are able to arrest some of the illegal immigrants and traffickers, but are insufficiently resourced to deal with the problem effectively. Many of those who arrive subsequently make their way to other Member States.

Some months ago there were suggestions by Tony Blair, amongst others, that Member States most vulnerable to such activity should be assisted by the navies of other Member States.

The United States has for many years intercepted on the high seas vessels bound for the US from Haiti and returned those on board to Haitian territory. Can the Commission indicate whether it believes that it would be legal for European Union Member States to intercept on the high seas vessels which were believed to be involved in people-trafficking, even if there were no suggestion of piracy (long recognised in customary international law as a crime over which there is universal jurisdiction), and would the legality of such an interception be affected by whether or not the vessel was properly registered under a flag, whether it was believed to be carrying contraband, including psychotropic substances, or believed in any way to pose a threat to the intercepting state or its citizens?

Answer given by Mr Vitorino on behalf of the Commission

(20 December 2002)

Illegal immigration by sea gets serious and continuous attention within the Commission. The Council presented a comprehensive plan to combat illegal immigration and trafficking in human beings in the Union on 28 February 2002 and a comprehensive plan for the integrated management of the external borders of the Member States on 13 June 2002, which are based on the Commission's Communications on the respective subjects. The proper implementation of measures on this matter as identified in these plans is of major importance to this problem. Consequently, the Commission welcomes the recently planned joint operations and activities of the Member States in the Mediterranean region.

Within the framework of the comprehensive plan to combat illegal immigration and human trafficking in the Union and stating the need for the adoption of appropriate legislative and/or operational initiatives at European level aimed at improving sea border controls, the Council invited the Commission to conduct a feasibility study to see how these controls could be improved. The feasibility study is ongoing and the conclusions will be available at the end of the first semester of 2003.

Furthermore, the Commission convened expert meetings on illegal immigration by sea on 21 May 2002 and 27 September 2002 that aimed to identify operational actions to prevent and combat illegal immigration in the Mediterranean region. During these meetings the co-operation with third countries was considered to be the most efficient and successful approach in tackling the problem of illegal immigration by sea and preventing further human tragedies. In this respect the signing and ratification of the United Nations Convention against Transnational Organised Crime including the supplementing protocol against smuggling of migrants by sea, land and air is of utmost importance. The protocol sets out an institutional framework that allows for improved co-operation with countries of boarding, departure and transit, inter alia, possible visits of boats suspected to be involved in the smuggling of human beings with the permission of a flag State.

In accordance with the United Nations Convention on the Law of the Sea (Unclos) of 10 December 1982 (Montego Bay Convention), vessels on the high seas are principally subject to the exclusive jurisdiction and control of the flag State. However, under exceptional circumstances another State may approach a vessel at high seas. The right of visit or further action is limited to five number of cases (piracy, slave trade, unauthorised broadcasting, missing nationality and missing or fraudulent use of a flag; cf. Article 110 Unclos). Worth mentioning is also the right of hot pursuit when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must, however, be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted (cf. Article 111 Unclos).

Nevertheless, the Montego Bay Convention does not allow yet the interception of vessels at high sea of another State than the Flag State solely for the purpose to fight against illegal immigration by sea and the smuggling of human beings.