ies of law ineffective within a given framework through which the international community can combat maritime migration fatalities .
Interception plays a key role in maritime migration across the Mediterranean for the States who are trying to mitigate the flow of IDPs , who are attempting to become refugees by crossing borders . Interception is an action that carries with it three main concerns in terms of maritime migration . The first being States primarily using interception as a tool to enforce their domestic immigration laws . This can be seen in the IOM ’ s observation that State ’ s , “ which have the ability to do so , find that intercepting migrants before they reach their territories is one of the most effective measures to enforce their domestic migration laws and policies ”. 10 Secondly , the delineation between interception and rescue are ambiguous at best and can be distorted to meet the circumstances at hand . Lastly is the distinction between physical and administrative interception , which distinguishes between physical maritime interception of vessels versus administrative interception which deals with the credentials of the vessel and those on board in regard to meeting national or international standards ( visas , document screenings , asylum , etc .).
The difficulty in distinguishing and defining interception with these three main aforementioned concerns is best seen within the definitions put forth by international governing bodies on the issue . In 2000 the UNHCR proposed to define interception as , “ All measures applied by a State , outside its national territory , in order to prevent , interrupt , or stop the movement of persons without the required documentation crossing international borders by land , air or sea , and making their way to the country of prospective destination ”. 11
Then in 2003 the Executive Committee ( ExCom ), a body consisting of 70-member-states under the UNHCR , defined interception as ,
“ One of the measures employed by States to : Prevent embarkation of persons on an international journey ; Prevent further onward international travel by persons who have commenced their journey ; or assert control of vessels where there are reasonable grounds to believe the vessel is transporting persons contrary to international or national maritime law ; Where , in relation to the above , the person or persons do not have the required documentation or valid permissions to enter ; and that such measure also serve to protect the lives and security of the traveling public as well as persons being smuggled or transported in an irregular manner ”. 12
The point where these two definitions diverge on is the extraterritorial element of interception , with ExCom ’ s 2003 definition leaving out any specific mention of extraterritoriality .
When examining the Mediterranean basin , as well as for human migration in general , extraterritoriality plays a key role in the behavior of States . States are concerned with acquiring the burden of care over persons whom they do not wish to , or did not intend to gain under the prerogative . This becomes notably significant in such a relatively small but densely inhabited body of water such as the Mediterranean , which connects 13 countries , 4 of which are European Union members ( excluding those in the Adriatic ). The United Nation ’ s Conventions on the Law of the Sea ( UNCLOS ) which defines a nation ’ s territorial waters , legal rights , and duties within their maritime territory sets a State ’ s maritime territory as reach 12 nautical miles from their sovereign shores , with economic rights extending up to 200 nautical miles . 13
The focal point of UNCLOS pertaining to maritime migration is the immigration control permitted within contiguous zones , which are areas of the high seas that States are given jurisdiction over for particular purposes . Within this contiguous zone , States are allowed to execute the authority necessary to “ prevent infringement of its customs , fiscal , immigration or sanitary laws and regulations within its territory or territorial sea ” as well as set punishments for the above infringements . 14 The Strait of Gibraltar serves as an example of this conundrum with the European and North African continents situated just 7.7 nautical miles apart . 15 This area , where maritime territorial boundaries , and therefore rights and responsibilities , are so densely interconnected , challenges which State has the duty to handle maritime migrants .
Rescue is a powerful tool that could be employed to decrease the number of fatalities in maritime migration across the Mediterranean . As with all interactions between vessels , rescue carries with it a unique set of challenges and intricacies in the eyes of international law . The duty to rescue vessels in distress is a commonly held maritime practice . UNCLOS requires all States that are party to the convention to enforce the rescue duty “ for all ships flying its flag including both commercial and state vessels ”. 16 Rescue as a practice is further defined under the Search and Rescue ( SAR ) Treaty and the Safety of Life at Sea ( SOLAS ) Convention , both of which are drafted and amended by the IOM . SAR defines rescue as “ an operation to retrieve persons in distress , provide for their initial medical or other needs , and deliver them to a place of safety ”. 17 Rescue is differentiated from interception in that hypothetically vessels are responding or intervening to persons in distress rather than acting
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