Complianc e wit h internationa l obligations.
4 Experience has shown that migrants often are transported on ships that are not properly manned,equipped or licensed for carrying passengers on international voyages. States should take steps relating to maritime safety, in accordance with domestic and international law, to eliminate theseunsafepracticesassociatedwiththetraffickingortransportofmigrantsbysea,including:
1 ensuring compliance with the International Convention for the Safety of Life at Sea,
1974,asamended(SOLAS)1;
.2 collectinganddisseminatinginformationonshipsbelievedtobeengagedinunsafe practicesassociatedwithtraffickingortransportingmigrants;
.3 taking appropriate action against masters, officers and crew members engaged in such unsafepractices;and
.4 preventinganysuchship:
.1 fromagainengaginginunsafepractices;and
.2 ifinport,fromsailing.
5 Measures taken, adopted or implemented pursuant to this circular to combat unsafe practices associated with the trafficking or transport of migrants by sea should be in conformity with the internationallaw of the sea and all generally accepted relevant international instruments, such as the UnitedNations1951Conventionandthe1967ProtocolRelatingtotheStatusofRefugees.
6 States should take, adopt or implement such measures in conformity with international law withdueregardto:
.1 the authority of the flag State to exercise jurisdiction and control in administrative, technicalandsocialmattersinvolvingtheship;and
.2 therightsandobligationsofthecoastalState.
7 If any measures are taken against any ship suspected of unsafe practices associated with trafficking or transport of migrants by sea, the State concerned should take into account the need not
toendanger the safety of human life at sea and the security of the ship and the cargo, or to prejudice thecommercialand/orlegalinterestsoftheflagStateoranyotherinterestedState.
C o -operation.
8 States should co-operate to the fullest extent possible to prevent and suppress unsafepractices associated with the trafficking or transport of migrants by sea, in conformity with the international law of the sea and all generally accepted relevant international instruments. It is consistent with international law for a flag State to authorize a vessel flying its flag to be boarded and inspected
bya warship of another State, as described in paragraphs 12 and 20 below.
9 States should consider entering into bilateral or regional agreements to facilitateco-operation
in applying appropriate, efficient and effective measures to prevent and suppress unsafe practices associatedwiththetraffickingortransportofmigrantsbysea.
10 States should also encourage the conclusion of operational arrangements in relation to specificcases.
Measure s an d Procedures.
11 AState,whichhasreasonablegroundstosuspectthatashipwhich:
.1 isflyingitsflagorclaimingitsregistry,or
.2 iswithoutnationality,or
.3 though flying a foreign flag or refusing to show its flag is, in reality, of the same nationalityastheStateconcerned,
is engaged in unsafe practices associated with the trafficking or transport of migrants by sea, may requesttheassistanceofotherStatesinsuppressingitsuseforthatpurpose. TheStatessorequested shouldrendersuchassistanceasisreasonableunderthesecircumstances.
12 A State which has reasonable grounds to suspect that a ship exercising freedom of navigation
in accordance with international law and flying the flag or displaying marks of registry of another State is engaged in unsafe practices associated with the trafficking or transport of migrants by sea may so notify theflag State, request confirmation of registry and, if confirmed2,requestauthorization from the flag Statetotake appropriate measures in regard to that ship. The flag State may authorize
therequestingStateto,inte r ali a :
.1 boardtheship;
.2 inspectandcarryoutasafetyexaminationoftheship,and
.3 if evidence is found that the ship is engaged in unsafe practices, take appropriateaction with respect to the ship, persons and cargo on board, as authorized
bytheflagState.
A State which has taken any action in accordance with this paragraph should promptly inform the flagStateconcernedoftheresultsofthataction.
13 A flag State may, consistent with paragraph 8, subject its authorization to conditions to be
mutually agreed between it and the requesting State, including conditions relating to responsibility and to the extent of effective measures to be taken including the use of force. AStateshalltakeno additional actions without the express authorization of the flag State, except those necessary to relieveimminentdangerorthosethatfollowfromrelevantbilateralormultilateralagreements.
14 A State should respond expeditiously to a request from another State to determine whether a ship that is claiming its registry or flying its flag is entitled to do so, and to a request for authorization madepursuanttoparagraph12.
15 When a ship is found engagedin unsafe practices associated with the trafficking or transport
ofmigrantsbysea,Statesshould:
.1 immediately report the findings of the safety examinations conducted pursuant to paragraph 12 to the administration of the State whose flag the ship is entitledtoflyor
inwhichitisregistered;and
.2 immediately consult on the further actions to be taken after giving or receiving reports
ontheshipinvolved.
16 When there are reasonable grounds to suspect that a ship is engaged in unsafe practices associated with trafficking or transport of migrants by sea and it is concluded in accordance with the international law of the sea that the ship is without nationality, or has been assimilated to a ship without nationality, Statesshould conduct a safety examination of the ship, as necessary. If the results of the safety examination indicate that the ship is engaged in unsafe practices, States should takeappropriatemeasuresinaccordancewithrelevantdomesticandinternationallaw.
17 Whenevidenceexiststhatashipisengagedinunsafepracticesassociatedwiththetrafficking
ortransportofmigrantsbysea,States,intakingactionpursuanttoparagraphs12or16,should:
.1 ensure the safety and the humanitarian handling of the persons on boardandthatany actionstakenwithregardtotheshipareenvironmentallysound;and
.2 takeappropriateactioninaccordancewithrelevantdomesticandinternationallaw.
18 States should take required steps, in accordance with international law including SOLAS regulationI/19(c), to ensure that a ship involved in unsafe practices associated with the trafficking or transport of migrants by sea does not sail until it can proceed to sea without endangering the ship or persons on board, and to report promptly totheStatewhoseflagtheshipisentitledtofly,orinwhich
itisregistered,allincidentsconcerningsuchunsafepracticeswhichcometotheirattention.
19 Contracting Governments to SOLAS 1974, as amended, should ensure that, when a request is received to transfer a ship to their flag or registry, the requirements listed in regulationI/14(g)(ii)are met, and appropriate inspections and surveys are conducted to ensure the ship will be used for the service specified in the certificates issued in accordance with chapter I of the 1974SOLAS Convention.
20 Any action taken at sea pursuant to this circular shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government serviceandauthorizedtothateffect.
21 Each State should designate an authority or, where necessary, authorities to receive reports of
unsafe practices, and to respond to requests for assistance, confirmation of registry or right to fly its flagandauthorizationtotakeappropriatemeasures.
22 Notwithstanding paragraph 20, ships providing assistance to persons in distress at sea, as required by the international law of the sea including SOLAS regulation V/10, and ships providing assistance in accordance with this circular, should not be considered as engaging in unsafe practices associatedwiththetraffickingortransportofmigrantsbysea.
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1 It is recalled that:
- regulation1ofchapterIofSOLASConventionprovidesthatSOLASappliestoships engagedoninternationalvoyages;
- regulation2ofthesamechapterdefinesas:
internationa l voyage ,avoyagefromacountrytowhichthepresentConventionappliesto
aportoutsidesuchcountry,orconversely.
passenge r ship ,ashipwhichcarriesmorethantwelvepassengers.
carg o ship ,anyshipwhichisnotapassengership.
Thetraffickingofmigrantswillnormallyconstituteaninternationalvoyage. Whenthispracticeoccurson boardcargoships,multipleinfringementsoftheSOLASConventionarethereforecommitted.
2 Ifregistryisrefuted,thesituationisthatdescribedinparagraph11.2above.