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.
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