Coastal Refugees Essay

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2. TERRITORIAL WATERS
Article 2(1) of the United Nations Convention on the Law of the Sea (UNCLOS)48 provides that, “[t]he sovereignty of a coastal State ex-tends, beyond its land territorial and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea”. This maritime zone extends up to 12 nautical miles (Article 3, UNCLOS). The only major exception to this sovereign power of the state is the right of innocent passage, enshrined in Article 17 of the UNCLOS. Coastal States are entitled to regulate migration activities within their territorial sea and this clearly extends to measures intended to prevent the infringement of immigration laws. The coastal state
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The authority of the coastal state to limit and control the passage of vessels carrying refugees and migrants has to be kept in accordance with customary international law and any other international agreements that the coastal state is a party to. However, it is a tricky question to determine whether refugees/migrants who reach the edges of or cross over into the territorial sea are satisfying the requirements of Articles 31 and 33 of the Convention Relating to the Status of Refugees (CRSR), including the principle of non-refoulement.
First of all, it is difficult to determine when entry into the territorial waters occurred. The entry into port or internal waters is much easier to determine and hence it is very easy to recognize the specific point in time when the rights and responsibilities were triggered. Another issue raised by scholars is that an extension of the principle of non-refoulement to the outer perimeter of the territorial sea makes it almost impossible for the coastal states to regulate and control illegal
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However, it seems to be a violation of the principle of non-refoulement. Australia redirected the vessel and refused to carry out a preliminary screening of the persons on board the Tampa, which constitutes a refoulement. The passengers had intended to enter Australia and in so being the first country of arrival, it fell upon it give temporary refuge and preliminary screening. Later on, it could have transferred the refugees to a third state for further processing and to send back those who were not deemed

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