Amidst the biggest refugee crisis in the world, each State shares a common responsibility towards vulnerable families fleeing persecution. These families have often ventured out in search of safe temporary asylum, on-foot and at sea. While terrestrial refugees can be traced easily and therefore protected wherever they end up, the same cannot be said about refugee boats rowing in the sea. This essay explores the interplay between Refugee and Maritime Law with reference to distressed refugees at sea. All coastal States have an equal responsibility to search and rescue distressed persons and vessels in their territorial waters, but the duty is being expanded to the high seas as well. This duty has also begun applying to landlocked States, private ships, commercial shipmasters and nearly all stakeholders in Maritime Law. Today, States are being held in violation of basic morality and legal order for denying rescued refugees the right to disembark on their territory, a refusal that is very common to terrestrial refugees. In light of these rapid changes and urgent need for action, the essay attempts to highlight the direction in which Maritime Law is headed in the realm of human rights.
For years, refugees have resorted to the seas to escape persecution in their homelands, creating new norms in refugee and maritime law. The seaward migration which started with Jews fleeing the Nazi reign of terror in Hitler’s Germany has today become a common outcome of internal disturbances in coastal nations. These refugees, referred to as the ‘Boat People’, gained attention at the height of the Rohingya refugee crisis that is still creating ripples in sea-routes around the world. These boats embark on endless journeys to reach the nearest coastal country, to seek short-term help with injuries or hunger, and long-term help with temporary shelter.
However, not every refugee boat reaches the coast. Many boats become prey to stormy seas, hunger, thirst and diseases on their stressful journeys. The ones that survive venture into maritime territories of other countries hoping that search-and-rescue vessels will find them and take them to shore. Once at shore, these rescuees can proceed with documentation and shelter the same way as land refugees. It seems obvious and inevitable that people facing persecution have no option but to row away from their homelands, only hoping that another country’s vessels will rescue and welcome them. Unfortunately, law and national prerogative stand in the way of this voyage and often, refugees are not welcome.
The case of an Australian rescue vessel MV Tampa is an early example of national prerogative standing in the way of refugee rights at sea. In 2001, Tampa received distress calls from a sinking Indonesian ferry that carried over 400 Afghan refugees in deteriorating health. The vessel rescued all passengers and headed to the nearest Australian port at Christmas Island to disembark. Tampa was denied entry into Australian waters and taken over by port authorities when it ignored the coastal blockade. The rescued refugees were displaced to Papua New Guinea for documentation, and later shared between New Zealand, Nauru, New Guinea and Australia. This historic burden-sharing agreement came to be known as the ‘Pacific Solution’.
In fact, blockades imposed on rescue vessels have gotten worse since Tampa. In June 2019, an Italian refugee rescue vessel Sea-Watch 3, carrying over 40 Libyan refugees, broke a two – week long blockade set up by Italian port authorities at the Island of Lampedusa. On 22nd July 2019, Italy responded by proposing a law that criminalizes all search-and-rescue vessels carrying migrants or refugees rescued from the Mediterranean region. The new law shall fine and imprison the Captain of any rescue vessel that brings and disembarks distressed Boat People on the Italian coast. Naturally, Sea-Watch 3 and her Captain still remain detained by Italian authorities, awaiting their fate.
Unsurprisingly, Middle Eastern and European countries have closed off their terrestrial borders to on-foot refugees in the past. The gamut of coastal countries that can be accessed through the sea is already much smaller, hence there has not been violent backlash every time a country has denied entry to a distressed refugee boat. However, leaving a boat in distress at sea not only violates several humanitarian norms, but also runs counter to Maritime Law norms. This is essentially the difference between denying asylum to on-foot refugees who can still look elsewhere for protection, and denying help to refugee boats which will most certainly perish at sea if not rescued.
This poses even more burden on coastal countries which, like Italy, may receive refugees from both their coasts and terrestrial borders. It is then in the interest of its own territorial sovereignty and national security that countries like Italy refuse to disembark refugees. Can a country place these legitimate objectives over its duty to rescue distressed persons at sea – which is not only a legal but also a moral responsibility? Does the obligation to rescue also include the obligation to disembark? These are many prevalent questions faced by coastal countries today, at the cusp of the world’s biggestand gravest refugee crises.
The rescue of refugees at sea is governed by many different areas of law, most notably Refugee Law and Law of the Sea. Under these regimes, the most important international instruments are the 1951 Convention relating to the Status of Refugees [“Refugee Convention”], the 1957 Convention relating to the Status of Stateless Persons, 1982 Convention on the Law of the Sea [“UNCLOS”], the 1958 Geneva Convention on the High Seas [“High Seas Convention”], the 1974 International Convention for the Safety of Life at Sea [“SOLAS”] and the 1979 International Convention on Search and Rescue at Sea [“SAR”]. There exist many bilateral and regional treaties that dictate navigation, search-and-rescue operations between nations. One such is the Timor Gap Treaty that persisted during the Tampa incident, to which both Indonesia and Australia were parties. This Treaty did obligate Australia to rescue and disembark the refugees aboard Tampa, but the obligation was staunchly neglected.
The Duty to Rescue
Today, almost every coastal State has a centralised Search and Rescue (SAR) Unit comprising coastguards and government vessels, which operate to meet one objective: rescue of persons. According to the SAR Convention, rescue is defined as an “operation to retrieve persons in distress, provide for their initial medical or other needs, and to deliver them to a place of safety.” However, countries have construed ‘rescue’ to only mean the act of finding distressed persons and embarking them on the rescue vessel.
In international law, the duty to rescue any person in distress is an aged and fundamental aspect of Law of the Sea. It is widely established in instruments such as the UNCLOS, SOLAS and High Seas Convention, and has been regarded by many jurists as customary international law. This duty applies regardless of the legal status of the distressed personsor the circumstances in which he is found.This means refugees, stateless people, illegal migrants, trafficked persons – all have the right to be rescued at sea.
Naturally, this duty applies more stringently to coastal States, but landlocked States are also urged to facilitate rescue operations in their capacity, especially when it comes to refugee boats. Luxembourg, a landlocked Western European country, has often volunteered to host refugees arriving in its neighbouring coastal countries. It is also clear in international law that distressed ‘vessels’ such as a refugee boat can enter territorial waters of another country to give distress calls. So grave is this duty, that jurists have even urged States to rescue refugee boats from maritime zones wherein they exercise limited territorial jurisdiction.
The duty to rescue may be explored further under specific international instruments:
UNCLOS empowers the Captain or shipmaster of a ship or vessel with immense responsibility to rescue any person or vessel in distress at sea, without causing danger to his own ship and passengers. These ‘persons’ can include seafarers of other countries or even enemies, as long as they show signs of being lost and endangered at sea.
International maritime law makes the aforementioned SAR Units a compulsion for coastal States through the UNCLOS. The Convention obligates each State to establish a“search-and-rescue service regarding safety on and over the sea”and“adopt measures necessary to enforce the duty of the master to save life at sea”.
- SOLAS Convention
SOLAS is one of the primary instruments governing person rescue operations today. The IMO had amended the Convention in 2004 to include an important aspect of rescue operations, i.e. the treatment of rescuees. It now obligates the shipmaster of a rescue vessel which has embarked distressed persons to “treat them with humanity, within the capabilities and limitations of the ship.” This was followed by passing the International Guidelines on the Treatment of Persons Rescued at Sea. However, where the SOLAS Framework fails is that it is incomplete in defining a rescue mission. While it mentions the dimensions of conducting a rescue, such as the discretion of the shipmaster, treatment of rescuees, manner of rescue – it fails to address issues related to delivery of persons to a place of safety, or disembarkation. This further adds to the confusion and subjectivity of a sensitive issue.
In recent interpretations of SOLAS and complementary IMO Guidelines / Manuals, many countries believe that refusing to rescue refugees at sea is a blatant violation of the Convention. Representatives at the IMO opine that all 174 Member States of the Organization had accepted the legislative intent behind SOLAS while adopting it, and are legally bound to respect its basic features. Spain and Greece have most recently been vocal about this perspective, in response to the growing numbers of boat refugees arriving in Europe. In fact in July 2019, Spain proposed a change in its SAR Framework by shifting power to a publicly owned agency namely Salvamento Marítimo (SASEMAR). It believes this model to be the most cohesive with SOLAS, as it burdens neither the government nor ill-funded NGOs to run rescue operations.
- SAR Convention
SAR is the only instrument to define ‘rescue’ and include responsibilities of the rescuer to deliver the persons to safety. However, SAR concentrates more greatly on the rescue of commercial vessels, retrieval of rescued objects and the manner in which search-and-rescue is to be conducted. It pays limited attention to rescuing human lives, especially those of refugees.
A few provisions of SAR, such as Regulation 2.1.10 is fundamental to this discussion. It states that assistance must be provided to distressed persons regardless of the nationality or status of persons, or the circumstances in which he is found. This, as mentioned earlier by the author, is the starting point of refugee rescue missions. Further, the provisions provide for more specific obligations than UNCLOS or SOLAS, in that it considers urgency and necessity as undeniable features of any rescue operation. This empowers the shipmaster to ask for help when necessary. Interestingly, SAR also urges States to cooperate in search-and-rescue missions by allowing SAR Units to penetrate territorial waters, which is a remarkable agreement to reach.
The Convention has recently set up a Maritime Rescue Coordination Center for different regional zones, to help States coordinate and locate the nearest vessel to a refugee boat or persons in distress. This ensures that the people are rescued as quickly as possible, without inconveniencing far-away ships with rescue missions.
The Duty to Disembark
It is abundantly clear that countries must rescue persons in distress at sea. But what is to be done next?
This question represents the fears and concerns of many, as the answer has been unclear since before Tampa. It is true that States can legitimately refuse to offer protection, asylum or even short-term assistance to refugees, whether on land or sea. This is because in international law, right to asylum is viewed as a prerogative of the receiving State, rather than a right of the concerned individual. This simply means that countries may deny or allow refugees to enter, based on whether they are viewed as threats – a freedom countries like Germany have exploited in the past. In fact, the 1951 Convention itself allows for closing borders to refugees if they threaten national security or public order. What constitutes as ‘national security’ or ‘public order’ are, again, the State’s prerogative. Essentially, rescuing a refugee at sea is mandatory under international law, but bringing him back to shore is optional. This has been recognized as a legal discrepancy by the UN High Commissioner for Refugees, but no concrete law has been made on it, because to reach consensus on the matter is nearly impossible. It may be assumed that vessels like Tampa or Sea-Watch 3 can still be detained by a coastal State’s prerogative without any sanctions in international law.
During the Indo-Chinese refugee crisis, UNHCR Executive Committee adopted certain conclusions to address this issue and to promote disembarkation and temporary asylum in the rescuing State. Many UN Experts have laid emphasis onthe universal “humanitarian obligation of all coastal States to allow vessels in distress to seek haven”It is also widely accepted at various international fora that rescuees should be disembarked at the nearest port of call.”
The duty to disembark, if realised in full by affected countries,fulfils a universal humanitarian purpose and echoes the legislative intent Art. 98(1) of UNCLOS, SAR and SOLAS Conventions. It also fulfils the definition of rescue found in SAR, as a “place of safety” becomes the State allowing disembarkation and not merely the rescue ship on which rescuees are often detained for weeks.The UN and International Courts through their judgements has suggested that gradually there has evolved a strong presumption in favour of disembarkation of rescuees over the years. Where this position stands after the 2019 Italian law and penalization of Sea-watch 3 will be interesting to note.
Needless to say, there is enough contrary State practice in this field. The only customary rule in Refugee Law that most States consider binding, is the obligation of non-refoulement. This simply the act of sending a refugee back to his State of origin, where he will face persecution. IMO has made it clear in the past that refusing disembarkation does not mean refoulementof the refugee, although it is still discouraged.Further, no existing law binds coastal states by the duty to disembark. In such conditions, it is not surprising that States like Italy, Germany, Australia, United States or Finland have refused disembarkation, especially of large refugee groups. Simply because they were under no duty to do otherwise.
Now that Italy plans to criminalize rescue missions at the Mediterranean, private vessels navigating around Libya, Tunisia and Malta will receive most signals from the region and these nations will become next port of call. Realising this, as of July 2019, Malta also closed its ports to refugee influxes, especially those coming from Libya. France and Greece have echoed this policy measure and soon enough, many countries will follow suit. The perspective of nations reflecting that, that which is not prohibited is permitted, is proving to be a dangerous precedent for refugees around the world.
There do exist legal instruments, literature and resolutions that have addressed and attempted to resolve the issue of disembarkation. For instance, the United Nations has done exemplary work on human rights issues at sea, including several working papers implicitly addressing the duty to disembark. The IMO Member States have realised this loophole since the three-volume IAMSAR Manual was first published in 1998, which reflects in the crucial amendments made to SOLAS and SAR.
In April 2019, a United Nations affiliated NGO Human Rights at Sea drafted and released an instrument of international cooperation, titled the 2019 Geneva Declaration on Human Rights at Sea [first draft]. The object of the Declaration is to apply humanitarian considerations to maritime law, especially in times of war, armed conflict or internal unrest. The Preamble implicitly binds States to rescue and care for refugees distressed at sea, which includes disembarking them at shore. Although this instrument lacks any legal backing, it is one step forward for refugee rescue missions.
Maritime Law recognises different responsibilities for different nations, depending on the role they play in distress or rescue situations. Generally, there could be three nations involved in a rescue mission – the rescued party, the party with the nearest port of call and the party under whose flag the rescuing ship has sailed. It is often noticed that a rescue ship sails under the flag of the same country at which it disembarks the rescuees. However, in Tampa, the ship sailed under the Norwegian flag but disembarked in Australia. That time it was not imperative to include the Flag State into the dispute, neither is it today. Flag State obligations are limited in dimensions, as long as the shipmaster follows the mandate of UNCLOS. Responsibility ends where the shipmaster sufficiently responds to distress signals and performs in his capacity to rescue the affected persons.
In recent times, UNHCR and IMO have been pressuringFlag States to ensure that ship shipmasters observe their moral and legal duty to rescue persons distressed persons, as far as reasonable for them to do so. Although it would be impractical to rope in the Flag State if it is a third party, much like Norway in Tampa, these countries must still exercise caution in ensuring their shipmasters meet legal expectations.
Another form of differentiated responsibility depends on whether the vessel is private of State-owned. The Convention does not draw a distinction between private or State ships, and assumes that Member States will instruct private ships to follow the same guidelines. However, private vessels such as the Tampa or NGO run rescue vessels such as the Sea-Watch are also expected to rescue persons if they encounter them or receive distressed signals. The United Nations has continually urged States to compensate and incentivise rescues made by private vessels to increase the reach of assistance.It has already been ruled that commercial considerations of private ships cannot be an excuse to ignore distress calls.On the other hand, States engaging private vessels should also relieve them as soon as practicable, avoiding another Tampa incident.
TheRefugee Law regime, when read together with Maritime Law, revives one of the oldest questions in the book – whetherthe sovereignty of a coastal State can be compromised to uphold basic refugee rights? The answer has been suspended in the grey for decades, but must be revisited from a humanitarian perspective.
We are amidst the world’s biggest ongoing refugee crisis, which entails responsibility on States to ensure the best conditions for vulnerable families fleeing persecution. Many of these families depend on SAR Units to find them at sea and bring them to shore for assistance, but as we have seen, that does not always go to plan. The onus falls on existing laws and treaties, which do not offer much clarity on it either. Duty to rescue or to disembark are not well defined, and that leads to States making subjective and often arbitrary decisions on their maritime borders. This can only be countered by strengthening the grip of International Maritime Law worldwide, before more lives are lost.
Perhaps the most practical solutionlies not in issuing sanctions, but enabling States to act in co-operation. This includes draftinglegal provisionsthat are binding, but afford a margin of appreciation to coastal states so that they may best implement their national maritime policies. There is also a need to clearly define the rights and responsibilities of coastal (and landlocked) States when refugees wash up at their shores. Many concepts of (terrestrial) Refugee Law can be applied to this regime, such as burden sharing or favourable asylum, which should be included in forthcoming Maritime treaties. Lastly, while the element of national security and interest will always be paramount in these discussions, the world must start viewing refugee influxes as not merely an immigrational or procedural problem, but a humanitarian one.
*Student, Symbiosis Law School, Pune
This essay was adjudicated as the 1st runner up of 1st NLUO-Ganesh & Co. National Maritime Law Essay Writing Competition, 2019.
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