The UNHCR has issued a Protection Policy Paper: “Maritime interception operations and the processing of international protection claims: legal standards and policy considerations with respect to extraterritorial processing.” (Nov. 2010).
The “paper outlines UNHCR’s views on extraterritorial processing of claims for international protection made by persons who are intercepted at sea.” UNHCR’s position is that it is not possible to conduct a full and adequate RSD onboard a ship and therefore intercepted persons should in most circumstances be disembarked in the territory of the intercepting state to have their claims for protection considered in regular in-country RSD procedures.
The paper should be read in its entirety (17 pages). Here are some excerpts (with most footnotes omitted):
“1. Governments in some regions have adopted, or are considering, measures to process certain claims for international protection outside of their territory. This is particularly the case following maritime interception operations, 2 where asylum-seekers and migrants are prevented from reaching their destination while on the high seas or in the territorial waters of a third State. …
(Ftnt 2 There is no internationally accepted definition of interception, and its meaning is largely informed by State practice. A working definition is provided in Executive Committee Conclusion No. 97 (LIV) (2003) on Protection Safeguards in Interception Measures, available at http://www.unhcr.org/41b041534.html .)
4. If extraterritorial processing is part of a comprehensive or cooperative strategy to address mixed movements, the location of reception and processing arrangements is only one relevant element. With its 10-Point Plan on Refugee Protection and Mixed Migration, (‘10-Point Plan’), UNHCR has developed a tool that provides suggestions across a number of areas, … This paper should be read in conjunction with the 10-Point Plan, and related strategies for comprehensive State cooperation in this field.
9. The existence of jurisdiction triggers State responsibilities under international human rights and refugee law. It is generally recognized that a State has jurisdiction, and consequently is bound by international human rights and refugee law, if it has effective de jure and/or de facto control over a territory or over persons….
(Ftnt 10 Some governments have argued that an intercepting State may not have jurisdiction under international law over persons located on parts of its territory that have been excised under domestic law (e.g. declared ‘international’ or ‘transit’ areas in airports, ports and border areas, or other parts of State territory including remote territories or islands), on high seas, or on the territory of a third State that is under the control of the intercepting State (e.g. because the intercepting State is responsible for a military base or reception centre). Such arguments are inconsistent with the notion of jurisdiction under international law. Domestic law is not determinative of the existence of jurisdiction as a matter of fact under international law: The Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force 27 January 1980, Article 27 (providing that a State may not invoke the provisions of its internal law as a justification for its failure to perform a treaty); see also Article 3 of ILC, Draft Articles on the Responsibility of States for International Wrongful Acts with Commentaries (2001).)
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 to have their international protection claims considered in regular in-country RSD procedures….
56. In general the carrying out of full RSD procedures onboard maritime vessels will not be possible, as there can be no guarantee of reception arrangements and/or asylum procedures in line with international standards….”
(My thanks to Dr. Neil Falzon, former Head of UNHCR’s Malta Office, for bringing this to my attention over a week ago – and my apologies for being behind in email and updates. –nwf)
Click here for complete Paper.