L'immigrazione clandestina e il diritto del mare

Unlawful migration by sea is not a new phenomenon. Actually, the expression "boat people" was first used during the Indochinese crisis in the 1970 s, in the course of which the main legal problems relating to this topic strongly emerged. The main problem, which has not been completely solved yet, is to identify the rights and the obligations of the concerned States (coastal State, flag State, national State, State of transit) in the different maritime zones, concerning especially the application of the right of asylum, in particular of the principle of non-refoulement, as well as the organization and the management of the rescue at sea operations. It has to be kept in mind that the flows of migrants by sea are mixed, i.e. not all the migrants respond to the refugee definition and then enjoy the protection guaranteed by the Geneva Convention 1951. This does not allow States to violate their obligations and in particular to repel migrants without proceeding at a first exam of their status. In the opinion of some authors, the customary principle of non-refoulement bind States not only within the limits their territory but also when they act beyond the limits of the territorial sea, namely in the high seas. State practice is not homogenous in this respect and remain unsolved in existing legal instruments. The problem of the application of the principle of non-refoulement is partially solved by the multilateral and bilateral cooperation mechanisms that have been created in the last ten years to face the migratory phenomenon. These cooperation programmes aims also at implementing the duty to render assistance at sea, codified by article 98 UNCLOS. European Union policy in this matter is evolving and raises several interests for international law issues, in particular after the creation of the FRONTEX in 2004.