Troubled Waters: Rescue of Asylum Seekers and Refugees at Sea
The last decade has seen an upsurge in the number of people taking to the sea in search of safety, economic opportunities, or both. However, danger often awaits those who include a sea route in their flight from developing countries such as Albania, Morocco, Haiti, Iraq, and Afghanistan. Desperate people crowd into decrepit ships, and often are placed in perilous situations by unscrupulous people-smugglers. The headlines are full of tragedies, and many more go undetected. The scale of the problem is hard to measure, as many ships and bodies disappear into the sea.
States have reacted sluggishly at best, and cynically at worst, to the increasing numbers of would-be migrants and refugees who encounter serious danger at sea. To further complicate matters, there is no clear answer in international law to the thorny question of who has responsibility for taking in asylum seekers rescued at sea, adjudicating their claims, and providing a place of safety for those who are confirmed in their need for international protection. What follows here is a description, in broad strokes, of the dilemma facing refugees and asylum seekers who encounter danger at sea, coastal states, crews and captains, and refugee protection agencies.
From the time the modern refugee regime was codified in the early 1950s until the late 1970s, rescue at sea was not a major issue in refugee protection. The numbers of asylum seekers picked up were relatively small, and it was usually possible for them to have their claims processed in the next convenient port of call of the rescuing ship. They could then generally find protection there, in the country where the ship was registered, or in another country where the refugee had previous ties. The Vietnam War changed all that.
The problems associated with the rescue of refugees and asylum seekers at sea reached a crisis point in the late 1970s, when tens of thousands of Vietnamese refugees took to the South China Sea in boats that were in many cases unseaworthy and in all cases risked becoming the prey of brutal pirates who attacked, looted, and disabled boats, often killing or abducting passengers. Many merchant vessels plying those waters encountered foundering boats and followed the normal practice of rescuing the passengers and trying to disembark them in the next port of call. Nearby coastal states such as Malaysia and Thailand, however, feeling overwhelmed as the number of sea-borne refugees continued to climb, refused to allow disembarkation.
In 1978, the United Nations High Commissioner for Refugees (UNHCR) brokered an agreement under which the coastal states would allow these "boat people" to come ashore if other (mainly Western) states agreed to resettle all such people within 90 days of their disembarkation. However, the arrangement did not work as smoothly as hoped. Ships found themselves subject to lengthy and costly delays as coastal states demanded that specific resettlement provisions be put in place prior to disembarkation. Ship owners who respected the traditions and laws governing rescue at sea bore all the direct costs of making a rescue. Refugee boats arrived with dead and dying passengers throughout the early 1980s, and survivors reported that 80-90 percent of the ships they had hailed refused to respond to distress calls. Ominously, the ratio of rescues to arrivals continued to shrink.
In 1984-1985, UNHCR put in place a number of emergency measures: they appealed successfully for more resettlement places to be offered and streamlined the procedures for matching up arrival and resettlement places. They established a scheme to reimburse owners for the direct costs of rescue, issued guidelines for ship owners and masters on the operational aspects of rescue, and sent out maritime radio messages explaining rescue procedures and appealing for ships to respond to boats in distress. They also began issuing public commendations to vessels that rescued refugees. By 1985, rescue was again on the rise. The crisis was slowly defused as the new measures took hold and the number of boat departures from Vietnam gradually declined.
The 1990s again saw an upsurge in the number of people taking to the sea in attempts to reach places of safety and/or opportunity. Tighter controls at borders and ports-of-entry had the unintended consequence of increasing the role of professional smugglers; the high profits in the trade attracted organized crime to people-smuggling and thereby increased the dangers.
The addition of a criminal element hardened both official and public attitudes toward boat arrivals. Authorities in the intended countries of destination tended to lump all the arrivals into the category of economic migrants, complicit with criminals, despite the fact that many of the arrivals declared their intention to claim asylum and came from some of the most repressive and/or lawless countries in the world. Despite the dangers, people have continued to embark, often en masse, from places such as Albania, North Africa, the Caribbean, and Southwest Asia. Countries such as Turkey and Indonesia have served as major staging points for smugglers assembling passengers from many countries.
The toll in human life has been high. Estimates of the number of people drowned in the straits between Spain and North Africa in the 1990s range from 600 to 3,000. At least a dozen immigrants died and 56 more were missing at the beginning of December 2002, after a vessel carrying about 120 illegal immigrants from Libya toward Italy sank in bad weather off the Libyan coast. Almost exactly a year earlier, a ship carrying 187 would-be immigrants ran aground just south of the Florida coast, drowning two and leaving the rest to be detained by the U.S. immigration service. Unknown numbers of Cubans and Haitians have died trying to reach the United States in rickety boats and rafts.
Codes of Honor, Bodies of Law
In the strong and ancient code that binds seafarers, coming to the aid of those in danger is perhaps the most fundamental imperative. Captains and their crews are obliged to respond to distress calls and mount rescue efforts, so long as they do not endanger themselves or their vessel.
This tradition has, to some extent, been converted into laws. Several countries with long seafaring traditions, including Australia, Germany, Norway, the United Kingdom, and the United States, may actually press criminal charges against captains who fail to render assistance.
Today, international maritime law codifies the obligation to render assistance in such instruments as the UN Convention on the Law of the Sea (1982) and the International Convention on Maritime Search and Rescue (1979). The obligation to extend aid applies without regard to the nationality, status, or circumstances of the person or people in distress. Under these rules, ship owners, ships masters, coastal nations, and flag states (the states where ships are registered) all have responsibilities for search and rescue. The Annex of the Search and Rescue Convention provides that "a situation of distress shall be notified not only to consular and diplomatic authorities but also to a competent international organ if the situation of distress pertains to refugees or displaced persons."
While the obligation of seafarers to rescue people in peril is clear in legal documents, what happens next is murkier. The Convention on Search and Rescue mandates that a rescue is not complete until the rescued person is delivered to a place of safety. That could be the nearest suitable port, the next regular port of call, the ship's home port, a port in the rescued person's own country, or one of many other possibilities.
When refugees or asylum seekers are among those rescued at sea, however, the list of options is narrowed. A refugee must not, under international law, be forcibly returned to a country where his or her life or freedom would be endangered — or, by extension, to a country where he or she would not be protected against such return.
Allowing a refugee or asylum seeker who has been rescued at sea to disembark on one's territory triggers a specific set of obligations on the part of the authorities of the receiving state. They cannot simply send the refugees home, as they would be able to do with other travelers. The 1951 Convention relating to the Status of Refugees, which is the cornerstone of refugee protection, provides that "No contracting party shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of a territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." As a result, many states are reluctant to accept refugees, and they are under no positive obligation to open their doors.
A Rock and a Hard Place
The intersection of maritime law and refugee law thus leaves ship owners, masters, and crews in a quandary. They must pick up refugees and asylum seekers whose lives are in danger, but no state is required to take them in.
The ship itself cannot be considered a "place of safety" -- indeed, carrying a large number of unscheduled passengers may endanger the crew and passengers themselves, owing to overcrowding, inadequate provisioning, and the tensions of life in close quarters. The inability to disembark rescued passengers in a timely fashion and return to scheduled ports of call creates a profound disincentive for the maritime industry to engage actively in search and rescue missions.
As the number of incidents of this type has increased, states have become more and more determined to deter and divert ships that might bear asylum seekers toward their shores. States have reacted slowly, and at times without good will, to the increasing numbers of would-be migrants and refugees who have met disaster at sea. The United States intercepts boats in the Pacific and the Caribbean, as do Italy and France in the Mediterranean, and Australia in the Indian Ocean. Accusations of standing by while passengers drown have been leveled at both Italian and Australian naval vessels.
U.S. authorities have justified a policy of summary return or mandatory detention of Haitian boat people on the grounds that such actions will discourage people from putting themselves at risk. Screening to detect refugees among the passengers and prevent refoulement is part of the interception procedure, although many refugee protection advocates find it inadequate.
In perhaps the most notorious interception incident, the Norwegian container ship Tampa, en route to Australia, picked up 438 people, mostly from Afghanistan, from a sinking boat in the Indian Ocean in August 2001. Australia refused to allow the ship to dock in an Australian port or to unload its passengers. Eventually, it forcibly transferred the rescued passengers first to warships and then to island possessions or neighboring states such as Nauru and Papua New Guinea for processing of their asylum claims.
In this long process of frustrated attempts to disembark the rescued passengers, the owners and agents of the Tampa incurred substantial losses in an industry where profit margins are razor-thin. The UN High Commissioner for Refugees gave the captain, crew, and owner of the Tampa its highest award for work on behalf of refugees for their principled actions in the face of such disincentives.
The question remains of who has responsibility for accepting asylum seekers rescued at sea, adjudicating their claims, and providing a place of safety for those who are confirmed in their need for international protection does not have a clear answer in existing law. States that refuse to relieve rescuing vessels of their unanticipated passengers not only place an unfair burden on the seafarers (who, after all, have taken the rescued people into their living quarters — their homes, in effect), but also threaten the conventions that have long upheld the system of rescue at sea.
These dilemmas call for cooperation among all the parties -- states, the shipping industry, and international organizations such as UNHCR and the International Maritime Organization -- to uphold the humanitarian practices that are an honorable part of maritime tradition. As long as there is violence and repression and people determined to escape it, asylum seekers will be found among those who encounter danger on the high seas.
Looking to the future, the kind of negotiations and arrangements that defused the crisis of rescue in the South China Sea in the 1970-1980s could be codified into more general responsibility-sharing arrangements for the protection of refugees rescued at sea. This way, the shipping industry along with the masters and crews of ships would not be required to bear alone the burdens of applying international humanitarian laws and standards.