It has been a decade since Liliane last saw her little girl. She fled Africa in fear for her life, leaving behind everything she knew and loved in the hope of a fresh start in Japan.
Today, she scrapes a living from dead-end jobs, and what Japanese she knows has been snatched from television shows. There is little government help for people like her: free language courses are limited, social housing is hard to find, discrimination is rife.
Yet Liliane is regarded as one of the lucky ones - she was granted refugee status in Japan, a country which refuses more than 99 percent of cases.
"It has not been easy," she tells AFP, speaking under a pseudonym.
She adds: "Here they do not pay for your studies, they do not help you to get bank loans, or give you social housing... we are left to ourselves, we have to fight alone."
Anti-refugee sentiment is rising in Europe and the United States but in Japan those seeking haven from tyranny and war have long faced daunting legal and social gauntlets.
One of the world's wealthiest countries, Japan accepted just 28 refugees in 2016 - one more than the previous year - out of the 8,193 applications reviewed by the Immigration Bureau.
Officials defend the low number, saying applicants are mainly from Asian countries seeking access to Japan solely for economic reasons.
"The number of applications from regions which generate lots of refugees, such as Syria, Afghanistan and Iraq, is small," said Yasuhiro Hishida, spokesman for the Immigration Bureau.
Assisted by the UN, Liliane was able to claim asylum on arrival in Japan stating that her life was in danger due to tribal conflict back home. It took two years for officials to accept her as a refugee, a period during which she received assistance from the Catholic Church and charities.
But she feels the status brought few benefits. She is no closer to reuniting with her child - now a teenager, her daughter has repeatedly been denied a permit to even visit.
For Liliane, further education and a stable life, seem out of reach.
She explains: "Japan is a very difficult country for foreigners. The language is really a handicap for us. You need to do absolutely everything to try to speak in Japanese but you don't know where to find free lessons."
"Sometimes I think refugee status has no meaning," she sighs.
But for Nonnon, being awarded refugee status would at least give her a sense of belonging.
She fled military persecution in her native Burma, also known as Myanmar, 25 years ago but remains in frustrating legal limbo, accepted only on a humanitarian stay visa, which allows for residence and work but traditionally only on annual temporary permits subject to anxiety-riven renewal.
"It's like I have no nationality," said the 47-year-old, who only gave her childhood nickname.
She has tried to forge a life in Japan, she married a man from Myanmar who was also claiming asylum and they have a son and a daughter. But their children are effectively stateless - not recognised in Burma, nor as Japanese citizens.
Refugee advocates say Japan's system is too harsh.
Lawyer Shogo Watanabe is helping a woman from Burma's Kachin minority who says she risks sexual assault by soldiers fighting ethnic minority militias if she goes home.
"To me, the risk of getting raped by someone who is a member of the military is a legitimate reason to be a refugee," he said of her plight.
"But immigration officials say you need to prove that she is actually targeted by the military."
Critics also say current government policy ignores the country's need for immigrants as the population shrinks.
"Japan has kept a mindset of closing doors to foreigners as it is an island nation that until recently had ample population," said Hidenori Sakanaka, a former Justice Ministry official who heads a pro-immigration think tank.
The population is set to decline to 87 million by 2060 from 127 million today.
He added that Japan must "accept more migrants, which would make society more open to multiple cultures and... to accepting more refugees".
The first Justice Ministry survey into discrimination against foreigners, released in March, found that 30 percent said they had been on the receiving end of discriminatory remarks.
One in four of the respondents that had sought employment, believed they did not get the job because they were not Japanese.
"For us with our black skin, it is a bit difficult. Sometimes when I sit on the train, some Japanese switch seats," Liliane reveals, though she adds she has never feared for her safety, which is a major concern for asylum seekers in Europe.
She says she was overlooked for teaching work, despite her fluency in English, when employers realised she is African.
Nonnon, who currently works in a nail salon, recalls being paid less than Japanese workers for doing the same job. She contrasts her situation to that of family members who escaped to other countries.
"My relatives in America and Australia were given refugee status and they are naturalised. They can get a job, buy a house and travel overseas," she said, adding: "They can live as normal people. I want to live like a normal person."
Thursday 14 December 2017
Monday 31 July 2017
EU should 'undermine national homogeneity'.
21 June 2012
From the section UK Politics
The EU should "do its best to undermine" the "homogeneity" of its member states, the UN's special representative for migration has said. Peter Sutherland told peers the future prosperity of many EU states depended on them becoming multicultural.He also suggested the UK government's immigration policy had no basis in international law.
He was being quizzed by the Lords EU home affairs sub-committee which is investigating global migration. Mr Sutherland, who is non-executive chairman of Goldman Sachs International and a former chairman of oil giant BP, heads the Global Forum on Migration and Development , which brings together representatives of 160 nations to share policy ideas.
He told the House of Lords committee migration was a "crucial dynamic for economic growth" in some EU nations "however difficult it may be to explain this to the citizens of those states".
'More open' An ageing or declining native population in countries like Germany or southern EU states was the "key argument and, I hesitate to the use word because people have attacked it, for the development of multicultural states", he added.
"It's impossible to consider that the degree of homogeneity which is implied by the other argument can survive because states have to become more open states, in terms of the people who inhabit them. Just as the United Kingdom has demonstrated."
The UN special representative on migration was also quizzed about what the EU should do about evidence from the Organisation for Economic Cooperation and Development (OECD) that employment rates among migrants were higher in the US and Australia than EU countries. He told the committee: "The United States, or Australia and New Zealand, are migrant societies and therefore they accommodate more readily those from other backgrounds than we do ourselves, who still nurse a sense of our homogeneity and difference from others.
"And that's precisely what the European Union, in my view, should be doing its best to undermine."
Mr Sutherland recently argued, in a lecture to the London School of Economics, of which he is chairman, that there was a "shift from states selecting migrants to migrants selecting states" and the EU's ability to compete at a "global level" was at risk. In evidence to the Lords committee, he urged EU member states to work together more closely on migration policy and advocated a global approach to the issue - criticising the UK government's attempt to cut net migration from its current level to "tens of thousands" a year through visa restrictions.
British higher education chiefs want non-EU overseas students to be exempted from migration statistics and say visa restrictions brought in to help the government meet its target will damage Britain's economic competitiveness. But immigration minister Damian Green has said exempting foreign students would amount to "fiddling" the figures and the current method of counting was approved by the UN.
Committee chairman Lord Hannay, a crossbench peer and a former British ambassador to the UN, said Mr Green's claim of UN backing for including students in migration figures "frankly doesn't hold water - this is not a piece of international law". Mr Sutherland, a former Attorney General of Ireland, agreed, saying: "Absolutely not. it provides absolutely no justification at all for the position they are talking about."
He said the policy risked Britain's traditional status as "tolerant, open society" and would be "massively damaging" to its higher education sector both financially and intellectually.
"It's very important that we should not send a signal from this country, either to potential students of the highest quality, or to academic staff, that this is in some way an unsympathetic environment in which to seek visas or whatever other permissions are required... and I would be fearful that that could be a signal."
Mr Sutherland, who has attended meetings of The Bilderberg Group , a top level international networking organisation often criticised for its alleged secrecy, called on EU states to stop targeting "highly skilled" migrants, arguing that "at the most basic level individuals should have a freedom of choice" about whether to come and study or work in another country. Mr Sutherland also briefed the peers on plans for the Global Migration and Development Forum's next annual conference in Mauritius in November, adding: "The UK has been very constructively engaged in this whole process from the beginning and very supportive of me personally."
Brian Wheeler
From the section UK Politics
The EU should "do its best to undermine" the "homogeneity" of its member states, the UN's special representative for migration has said. Peter Sutherland told peers the future prosperity of many EU states depended on them becoming multicultural.He also suggested the UK government's immigration policy had no basis in international law.
He was being quizzed by the Lords EU home affairs sub-committee which is investigating global migration. Mr Sutherland, who is non-executive chairman of Goldman Sachs International and a former chairman of oil giant BP, heads the Global Forum on Migration and Development , which brings together representatives of 160 nations to share policy ideas.
He told the House of Lords committee migration was a "crucial dynamic for economic growth" in some EU nations "however difficult it may be to explain this to the citizens of those states".
'More open' An ageing or declining native population in countries like Germany or southern EU states was the "key argument and, I hesitate to the use word because people have attacked it, for the development of multicultural states", he added.
"It's impossible to consider that the degree of homogeneity which is implied by the other argument can survive because states have to become more open states, in terms of the people who inhabit them. Just as the United Kingdom has demonstrated."
The UN special representative on migration was also quizzed about what the EU should do about evidence from the Organisation for Economic Cooperation and Development (OECD) that employment rates among migrants were higher in the US and Australia than EU countries. He told the committee: "The United States, or Australia and New Zealand, are migrant societies and therefore they accommodate more readily those from other backgrounds than we do ourselves, who still nurse a sense of our homogeneity and difference from others.
"And that's precisely what the European Union, in my view, should be doing its best to undermine."
Mr Sutherland recently argued, in a lecture to the London School of Economics, of which he is chairman, that there was a "shift from states selecting migrants to migrants selecting states" and the EU's ability to compete at a "global level" was at risk. In evidence to the Lords committee, he urged EU member states to work together more closely on migration policy and advocated a global approach to the issue - criticising the UK government's attempt to cut net migration from its current level to "tens of thousands" a year through visa restrictions.
British higher education chiefs want non-EU overseas students to be exempted from migration statistics and say visa restrictions brought in to help the government meet its target will damage Britain's economic competitiveness. But immigration minister Damian Green has said exempting foreign students would amount to "fiddling" the figures and the current method of counting was approved by the UN.
Committee chairman Lord Hannay, a crossbench peer and a former British ambassador to the UN, said Mr Green's claim of UN backing for including students in migration figures "frankly doesn't hold water - this is not a piece of international law". Mr Sutherland, a former Attorney General of Ireland, agreed, saying: "Absolutely not. it provides absolutely no justification at all for the position they are talking about."
He said the policy risked Britain's traditional status as "tolerant, open society" and would be "massively damaging" to its higher education sector both financially and intellectually.
"It's very important that we should not send a signal from this country, either to potential students of the highest quality, or to academic staff, that this is in some way an unsympathetic environment in which to seek visas or whatever other permissions are required... and I would be fearful that that could be a signal."
Mr Sutherland, who has attended meetings of The Bilderberg Group , a top level international networking organisation often criticised for its alleged secrecy, called on EU states to stop targeting "highly skilled" migrants, arguing that "at the most basic level individuals should have a freedom of choice" about whether to come and study or work in another country. Mr Sutherland also briefed the peers on plans for the Global Migration and Development Forum's next annual conference in Mauritius in November, adding: "The UK has been very constructively engaged in this whole process from the beginning and very supportive of me personally."
Brian Wheeler
Saturday 1 July 2017
European Union Loots Google
June 30, 2017
On June 27, the European Commission, an agency of the government of the European Union, placed a $2.71-billion fine upon Google, the American technological giant. To indicate the anti-American hostility of the Commission, it related the fine not to Google's annual sales in the E.U., but to Google's worldwide sales.
The anti-trust authorities in a number of other countries could, taking a lesson from the E.U.'s action, fine Google on the basis of its worldwide sales as well. Russia, South Korea, Turkey, and India are among the global enforcers who already have commenced their own investigations.
Google's strong market position in search is based purely upon the high quality of the search results it returns. Its crime is that it makes a better product than anybody else and is trying to profit from that fact. If a better search engine emerges, Google will lose its dominant position.
Economic Warfare against the U.S.
This decision against Google comes in the wake of other decisions by the European Commission against American technological leaders. In 2009, the European Commission looted Intel of $1.45 billion and from 2004-2008 looted Microsoft of about $2 billion. And the European Commission is just getting started. It has already announced plans to loot American technological leader Qualcomm and six major U.S. film studios.
After the looting of Intel, many observers predicted that the E.U.'s next big target would be Google. In fact, we ourselves, back in May 2009, correctly made that prediction. We knew that the E.U. would loot Google, no matter what Google did, simply because "Google is big, dominant, and American."
These record fines against Microsoft, Intel, and Google dwarf the fines that the European Commission levies against European companies for monopolistic violations. The reason for the disparity is simple. Member countries would object if their own companies were looted by the European Commission, a point once made by Wikipedia:
[S]ome analysts assert that the Commission's monopoly policy … has been "largely ineffective," because of the resistance of individual Member State governments that sought to shield their most salient national companies from legal challenges.So why does the European Commission loot American companies? The E.U.'s antitrust chief, Neelie Kroes, once bragged:
I would like to draw your attention to Intel's latest global advertising campaign which proposes Intel as the sponsors of tomorrow. Well now they are sponsors of the European taxpayers, so to say.Are Fines of Tech Leaders Economically Legitimate?
Some anti-trust prosecutions are economically legitimate. When Congress passed the Sherman Anti-Trust Act in 1890, some American deal-makers were combining all of the large competing companies in an industry so they could gain the monopoly power needed to raise the prices of their products. Breaking up such trusts was economically justified in order to reduce prices for the consumer.
But there is no economic justification for looting technological leaders in order to prevent them from profiting from the monopolies that their technological leadership earned. These companies make enormous profits, and they invest a large part of those profits into research that drives economic growth.
This observation was first noted by economist J.A. Schumpeter, whose work led to the endogenous growth theory, the dominant modern theory of long-term economic growth. Companies invest enormous amounts in research in an attempt to stay ahead of their competition and also to expand markets for their products.
Schumpeter's favorite example was the Aluminum Corporation of America. Even though its patent protection expired in 1909, it continued to engage in "cost-reducing research, in the economic development of the productive apparatus, [and] in teaching new uses for the product" (note 20, pp. 101-102). It maintained its near monopoly for decades while it simultaneously reduced aluminum prices and expanded aluminum output.
Schumpeter wrote about ALCOA way back in 1943. But the intervening years have shown again and again that he was correct. Since World War II, companies that have had technological monopolies have continued to propel economic growth through their research. These innovative companies have included AT&T, IBM, Xerox, Microsoft, Intel, and Google.
The European Commission is bleeding American technological leaders of the profits that could have been devoted to research. It is putting these companies on notice that they need to spend their effort worrying about government interference instead of researching new inventions.
Is the Prosecution of Google Legally Legitimate?
If the prosecution against Google were legitimate, Google would have been able to avoid prosecution by studying the decisions against Intel and Microsoft and avoiding their so-called "crimes." But the criminal case against Google is simply due to Google being an American technological monopoly, and there was never anything that Google could do to avoid it.
If the prosecution against Google were legitimate, the penalties would correspond with the harm done. Instead, the E.U. calibrates its loot so as to bleed its victims without killing them. That way, it can loot again in the future or force its victim into paying for "protection."
But the most important reason why the E.U.'s prosecution is illegitimate is because the E.U. lacks jurisdiction when it levies fines based upon Google's worldwide sales. If every country could levy fines of five percent upon American companies' worldwide revenues, a few taking such action could put American-based multinationals out of business.
In effect, the E.U. is claiming that Google's operations in the U.S. are subject not just to U.S. law, but to the E.U.'s laws as well. If these actions are allowed to stand, American companies will be held to "full faith and credit" to other nation's laws, making European laws the law in the United States.
There is a basic principle at stake: international law must restrict fines to harm done within the borders of the countries that impose the fines. The European Union cannot be allowed to claim jurisdiction over the entire world.
What Should the United States Do?
The Europeans are taking away future inventions from the United States. They are bleeding the American geese that would have laid American golden eggs. The American government did nothing when Microsoft and Intel were looted. This is economic warfare, but only one side is fighting!
In 2016, the United States had a $93-billion trade deficit in goods and services with the European Union, partly produced through actions like this looting. Balancing our trade deficit with Europe would create about 700,000 U.S. manufacturing jobs. At the very least, we should promulgate a retaliatory trade-balancing tariff against European Union products.
Also, we are negotiating a multi-country treaty with the Europeans called the Transatlantic Trade and Investment Partnership (TTIP). We need to tell the European Union that we consider fines levied on U.S. multinationals on the basis of sales outside Europe to be invalid and that such fines must be returned as a pre-condition for further negotiations.
The United States desperately needs a government that fights back against foreign looting of American companies. We protect Europe, while Europe loots us. We need to let the Europeans know that we are mad as hell and will not be taking this anymore.
Text
Friday 30 June 2017
Our NHS.
This proposal if passed by EU Parliament (Parliament has never voted against the Commission) will allow companies to sue The NHS, with severe penalties of set at a level of not below 10% of world turnover. The proposal offers leniency for those that comply with the decision of the National Competition Authorities within a two year time-frame - The Commission will grant a thumbs up or down decision
To empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.
Companies cannot compete on their merits where there are safe havens for anti-competitive practices. They therefore have a disincentive to enter such markets and to exercise their rights of establishment and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement against anti-competitive practices.
Article 14
Maximum amount of the fine
1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should not be set at a level below 10% of its total worldwide turnover in the business year preceding the decision.
2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not be set at a level below 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association.
FINAL PROVISIONS
Article 32
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [two year period for transposition] at the latest. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
The complete proposal can be read here: Antitrust
To empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.
Companies cannot compete on their merits where there are safe havens for anti-competitive practices. They therefore have a disincentive to enter such markets and to exercise their rights of establishment and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement against anti-competitive practices.
Article 14
Maximum amount of the fine
1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should not be set at a level below 10% of its total worldwide turnover in the business year preceding the decision.
2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not be set at a level below 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association.
FINAL PROVISIONS
Article 32
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [two year period for transposition] at the latest. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
The complete proposal can be read here: Antitrust
Wednesday 28 June 2017
Mariners' code.
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."
Safe Harbors?
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.
Conclusion
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.
Troubled waters.
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."
Safe Harbors?
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.
Conclusion
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.
Troubled waters.
Thursday 16 March 2017
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