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Refugee Law At Sea

Published online by Cambridge University Press:  17 January 2008

Richard Barnes
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Coping with refugees arriving by sea is a problem that has existed for a number of years.1 Throughout this period the crux of the matter has remained the same, reconciling the humanitarian plight of refugees and asylum-seekers with the destination States' concerns about illegal immigration, mass migrations of people, and the costs of asylum. The boarding of the Tampa by Australian SAS troops in August 2001, in order to prevent the disembarkation of 433 asylum-seekers on Christmas Island, has once again brought into sharp focus the acute tension created between competing legal norms, and between moral and legal considerations. What are the rights of vessels and people in distress under the 1982 Convention on the Law of the Sea and other maritime agreements? How do commercial considerations affect the obligation to assist those in distress at sea? What are the rights of refugees under the 1951 Refugee Convention and other human rights instruments? What are the powers of a coastal State to protect itself from threats to national security in its coastal waters? This article examines the legal obligations incumbent upon coastal States and flag States in respect of asylum-seekers rescued at sea and seeks to answer these questions. It goes on to suggest that the law in respect of search, rescue, and refuge is highly unsatisfactory because a number of key obligations are poorly defined and inadequately implemented. It alsoseems clear that insufficient weight is given to humanitarian considerations. Finally, consideration is given to possible solutions to the problem.

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Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 1 , January 2004 , pp. 47 - 77
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 The fate of Jewish refugees fleeing Nazi persecution is well documented in Thomas, G and Witts, M Morgan, The Voyage of the Damned (LondonCoronet 1976).Google ScholarDuring the 1970s thousands fled Indo-China. See Grant, B, The Boat People (MelbournePenguin 1980);Google ScholarAlso Pugash, JZ, ‘The Dilemma of the Sea Refugee: Rescue without Refuge’ 18 Harvard International Law Journal (1977) 577.Google ScholarMore recently America has faced problems dealing with a large number of refugees from Cuba and Haiti. See Frelick, B, ‘Haitian Boat Interdiction and Return: First Asylum and First Principles of Refugee Protection’ 26 Cornell International Law Journal (1993) 675.Google ScholarAlthough the particular plight of those on board the MV Tampa has since been resolved, other cases are likely to arise. The incidence of people smuggling by sea is steadily increasing. See Oceans and the Law of the Sea: Report of the Secretary General, UN GAOR, 56th Sess, Agenda Item 30(a), at 11, UN Doc A/56/58/Add 1 (5 Oct 2001).Google Scholar

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9 See.eg, Art 14 of the Timor Gap Treaty 1989, 1991 ATS 9. In any case, the role of Indonesia in the incident was minimal. As the ferry's State of origin, and the transit State, more might have been expected of Indonesia, but this was limited to an offer to bring the refugees to the port of Merak. Once it was clear that the refugees would be heading for Australia this offer was withdrawn. This does not of course free Indonesia from criticism.Google Scholar

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15 Norway, under s 135 of the Norwegian Maritime Code, imposes a general obligation on masters to render assistance. This does not apply to masters of foreign vessels. Neither is it a criminal offence to violate the rule. Section 12 of the Norwegian Penal Code only extends to crimes committed onboard Norwegian vessels. Davies notes that both the US and Australia have not fully translated the obligation into domestic law. See Davies, M, ‘Obligations and implications for ships encountering persons in need of assistance at sea’ 12 Pacific Rim Law & Policy Journal (2003) 128–133.Google Scholar

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17 Davies stresses that the commercial consequences to the ship operator of assisting those in distress can be considerable. Davies, above n 15, 133. Either the ship owner or charter will bear the costs of delay, which can run into tens of thousands of pounds per day, and such losses are not normally covered by ship's P & I insurance cover. See, eg, Rule 2 Section 7 of UK P & I Club cover. Available at <http://www.ukpandi.com/Rules2002/Rules_02.pdf> (checked 1 Dec 2002). In the case of the Tampa only 30–40 per cent of the owners losses were reimbursed by their P & I insurer. The Tampa was covered by Assuranceforingen Gard. Rule 32 of the cover provides that: ‘The Association shall cover costs and expenses reasonably incurred in consequence of the Ship having stowaways, refugees or persons saved at sea on board, but only to the extent that the Member is legally liable for the costs and expenses or they are incurred with the approval of the Association. The cover does not include consequential loss of profit or depreciation’. Available at <http://www.gard.no/Publlications/statutesandrules/rules/p2_chapterl.html> (checked 1 Dec 2002)+(checked+1+Dec+2002).+In+the+case+of+the+Tampa+only+30–40+per+cent+of+the+owners+losses+were+reimbursed+by+their+P+&+I+insurer.+The+Tampa+was+covered+by+Assuranceforingen+Gard.+Rule+32+of+the+cover+provides+that:+‘The+Association+shall+cover+costs+and+expenses+reasonably+incurred+in+consequence+of+the+Ship+having+stowaways,+refugees+or+persons+saved+at+sea+on+board,+but+only+to+the+extent+that+the+Member+is+legally+liable+for+the+costs+and+expenses+or+they+are+incurred+with+the+approval+of+the+Association.+The+cover+does+not+include+consequential+loss+of+profit+or+depreciation’.+Available+at++(checked+1+Dec+2002)>Google Scholar

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19 Para 1.3.2.Google Scholar

20 Vol III, s 2.Google Scholar

21 Although the survivors must be brought to shore, there is no authoritative determination of this. This point is discussed below as it is also relevant to an evaluation of the coastal States obligations.Google Scholar

22 This is now regulation V–7(3) under the SOLAS 2000.Google Scholar

23 As per Arts 58(2) and 86.Google Scholar

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48 Art 16 of the Maritime Ports Convention. Above n 46. See also Art 5(2) of the Convention for the Facilitation of International Maritime Traffic, which provides for denial of entry on the grounds of ‘public morality, order, and security or to prevent the introduction or spread of disease or pests affecting public health, animals, or plants’. 4 ILM (1965) 501. Doctrinal opinion is predominantly in favour of States having the power to limit entry to their ports. See McDougal, MS and Burke, WT, The Public Order of the Oceans (New HavenYale University Press 1962), 93;Google ScholarO'Connell, DP, above n 11, 848.Google ScholarCf Colombos, CJ, above n 11, § 141.Google Scholar

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53 [1809] Edw 135.Google Scholar

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55 Ibid.

56 See UN Press Releases GA/9980 27 11 2001 and GA/9981 28 Nov 2001.Google Scholar

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58 Art 94(1) of the 1982 Convention, above n 5.Google Scholar

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66 Notably, the ILC refer to the element of choice, or rather the lack of choice as being a highly relevant consideration concerning distress. ILC, above n 62, 133, para 2.Google Scholar

67 See Art 1 of the UDHR, General Assembly Resolution 217A(III) GAOR, 3rd Session, part I, Resolutions, 71; the preamble of the International Convention on the Elimination of All Forms of Racial Discrimination 1966, 60 UNTS 195; the preamble of the ICCPR, 999 UNTS 171; the preamble of the ICESCR 1966, 993 UNTS 3.Google ScholarThe Human Rights Committee have on a number of occasions reiterated that human rights obligations cannot be avoided by extraterritorial exercises of jurisdiction. See Nowak, M, UN Covenant on Civiland Political Rights: CCPR Commentary (KehlNP Engel 1993) 41–3.Google Scholar

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69 The relevance of general human rights is apparent when the specific refugee rules are read in accordance with instruments such as the ICCPR. Art 9 of the ICCPR guarantees the right ‘not to be deprived of [one's] liberty except on such grounds and in accordance with such procedures as are established by law’.If a person has been deprived of his liberty, he is entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention. See Carballal v Uruguay 1 Selected Decisions Human Rights Committee (1981) 63. Voulanne v Finland HRC Report, GAOR, 44th Sess, Supp 40 (1989) 249.Google Scholar

70 UDHR, above n 67. It should be noted that a number of commentators have denied Art 14 any legal status. Thus, Brownlie does not consider Art 14 to be indicative of a legal rule. Brownlie, I, Principles of Public International Law (OxfordClarendon Press 1988) 575.Google ScholarAlso Lauterpacht, H, International Law and Human Rights (LondonStevens 1950) 421.Google ScholarCf Pallis, , who argues that subsequent declarations and statements mean that such a right cannot be ignored.Google ScholarPallis, M, Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes' 14 International Journal of Refugee Law (2002) 329, 346.CrossRefGoogle Scholar

71 Convention relating to the Status of Refugees 1951. 189 UNTS 150. The Refugee Convention has a protocol—United Nations Protocol to the Convention relating to the Status of Refugees 1967, 606 UNTS 267.Google Scholar

72 Art 31(1): ‘The Contracting State shall not impose penalties, on account of their illegal entry or presence, on refugees who coming directly from a territory where their life or freedom was threatened in the sense of [A]rticle 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ It may be open to argue that as the Tampa refugees did not come directly from the State of origin, they are not covered by this provision.Google Scholar

73 This provision is important as it ensures that refugees are entitled to protection under due legal process. This would include protection against retroactive penalties. This aspect of the Tampa crisis is commented on below. See n 90 and the accompanying text.Google Scholar

74 Similar difficulties arise in respect of stowaways. Thus the provision for the disembarkation of stowaways to the appropriate authority under Art 2(2) of the Stowaways Convention 1957 has proved to be unacceptable to States, and has lead to rejection of the Convention.Google Scholar

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76 There is no general obligation to allow the disembarkation of refugees. See Goodwin-Gill, , above n 41, at 138;Google ScholarPugash, J, ‘The Dilemma of the Sea Refugee: Rescue Without Refuge’ 18 Harvard International Law Journal (1977) 577.Google ScholarSchaffer, R, ‘The Singular Plight of Sea-borne Refugees’ 8 Australian Yearbook of International Law (1983) 213.Google ScholarAlso, see the discussions at the IMO Facilitation Committee. IMO Doc FAL29/18, para 7.Google Scholar

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78 They have suggested this procedure was considered so obvious that it was not found necessary in any of the relevant instruments to stipulate an express obligation for the country of the first port of call to permit the disembarkation of rescued persons. See UNHCR, Problems Related to the Rescue of Asylum-Seekers in Distress at Sea, 26 08 1981. UN Doc EC/SCP/18, paras 19–20. The disembarkation of persons rescued at sea can be taken ‘as implicit in the practice of States and in the various provisions referred to above’. Ibid, para 21.Google Scholar

79 Ibid.

80 Difficulties may arise when asylum is refused by a State on the grounds that asylum could be sought from another State. Unless a particular State is under an obligation to admit such persons, rejection at the frontier may result in refugees being left in orbit. Although this situation is highly unsatisfactory, nothing has, as yet, been done address this aspect of non-refoulement. See, eg, the additional para to Art 1 of the obsolete 1977 Draft UN Convention on Territorial Asylum, UN doc A/CONF.78/12 21 (04 1977).Google ScholarThere is some support for the view that refusal to admit persons in such circumstances amounts to a breach of non-refoulement. See EXCOM Conclusion No 15 (XXX)—1979.Google ScholarAlso Goodwin-Gill, , above n 41, p. 90;Google ScholarCrawford, J and Hyndman, P, ‘Three Heresies in the Application of the Refugee Convention’ 1 International Journal of Refugee Law (1989) 155, 167–73.Google Scholar

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83 Art 33(2). However these provisions are couched in terms of the individual rendering group refusals unlawful as in the case of the Tampa.Google Scholar

84 See Goodwin-Gill, , above n 41, 191–3.Google ScholarLauterpacht and Bethlehem note that implementation of the non-refoulement provision indicates a range of exceptions to the principle often, though not always, reflecting the Art 33(2). Such practice indicates a broad support for the general principle. Above n 81, para 158, n 103. However it is the devil in the detail that serves to reduce the effectiveness of this obligation in practice.Google Scholar

85 This restrictive approach is evident in a number of decisions of the immigration minister that adopt a restrictive definition refugee for purposes of the 1951 Convention.Google ScholarSee, eg, Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263.Google ScholarA decision of the Minister was challenged on the grounds that he had assumed that to satisfy the definition of refugee under the 1951 Convention it was necessary for a person to be singled out.Google ScholarCrawford, and Hyndman, point out a number of instances where this requirement for individualisation as an element of persecution has been a consideration of Australian immigration authorities. Above n 80, 159–67.Google Scholar

86 Although Australia is a party to the Refugee Convention 1951 it has not implemented it directly into domestic law. See Crock, M, ‘A Sanctuary Under Review: Where to From Here for Australia's Refugee and Humanitarian Program’ 23 University of New South Wales Law Journal (2000) 246, 256.Google ScholarHistorically, Australia maintained a strict immigration policy based on racial and ethnic discrimination commonly known as the ‘White Australia policy’. This policy was reversed in the late 1950s.Google ScholarIt has, however, been making something of a revival. Australia's geographic position and relative economic wealth and stability make it the main destination for both economic migrants and genuine asylum-seekers.Google ScholarThe large influx of legal and illegal aliens means that border control has been a key feature of the domestic political agenda. See Birrell, R, ‘Immigration Control in Australia’, 534 Annals of the American Academy of Policy & Social Science (1994) 106,108.CrossRefGoogle Scholar

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88 Migration Regulations 1994, sched 2, pt 785.Google ScholarEsmaeli and Wells are critical of this process as inconsistent with the non-refoulement principle in that holders of Temporary Protection Visa will eventually be returned to their country of origin.Google ScholarEsmaeili, H and Wells, B, ‘The “Temporary” Refugees: Australia's Legal Response to the Arrival of Iraqi and Afghan Boat-People’ 23 University of New South Wales Law Journal (2000) 224, 238–40.Google Scholar

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90 183 ALR 1. In Vardarlis v Ruddock, above n 3, it was argued that the Federal Government had acted unconstitutionally by detaining the asylum-seekers onboard the Tampa.Google Scholar

91 Border Protection (Validation and Enforcement Powers) Act 2001;Google ScholarMigration Amendment (Excision from Migration Zone) Act 2001;Google ScholarMigration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001;Google ScholarMigration Legislation Amendment Act, No 1, 2001;Google ScholarMigration Legislation Amendment Act, No 5, 2001;Google ScholarMigration Legislation Amendment Act, No 6, 2001;Google Scholarand the Migration Legislation Amendment (Judicial Review) Act 2001.Google Scholar

92 Part 2, s 4 provides that the ‘Validation period’ means the period starting on 27 08 2001 and ending at the beginning of the day on which this Act commences. Section 6 further provides that ‘All action to which this Part applies is taken for all purposes to have been lawful when it occurred.’ Thus the actions of those persons authorising and acting to detain the Tampa are deemed to be retrospectively lawful.Google Scholar

93 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001.Google Scholar

94 Art 40 of the Refugee Convention, which details the territorial scope of the convention, envisages the extension of its application to territories under the control of the State party, rather than its withdrawal. To exclude significant parts of a State's territory from the scope of the convention would run counter to the object and purposes of the convention.Google Scholar

95 Migration Legislation Amendment Act, No 1, 2001.Google Scholar

96 For a summary of this see Goodwin-Gill, above n 41, 158–60.Google Scholar

97 UN Doc A/AC.96/SR.317, para 47. Noted in Goodwin-Gill, above n 41, 159.Google Scholar

98 UN Doc A/AC.96/SR.319, para 27. Ibid.

99 UN Doc A/AC.96/SR.319, para 4. Ibid.

100 Often the registration of ships is a paper exercise designed to generate some revenue for the flag economy, and it is often the case that States which operate open registries have little financial capacity for regulating and enforcing shipping regulations, much less absorbing the costs of resettling refugees.Google Scholar

100 UN Doc EC/SCP/21, para 6.Google Scholar

102 Above n 41 at p 91. He notes that the South East Asia solution of resettlement guarantees was dictated by the exigencies of the time, rather than through the normal customary process.Google Scholar

103 Ibid.

104 This view was taken on board by the Executive Committee of the UNHCR. See the Report of the Working Group on the problems related to the rescue of asylum seeker in distress at sea, UN Docs EC/SCP/21 and EC/SCP/24.Google Scholar

105 Fitzpatrick has criticized the Refugee Convention for its ambiguity, in particular for its lack of protection for refugees interdicted at sea. Fitzpatrick, J, ‘Revitalizing the 1951 Refugee Convention’ 9 Harvard Human Rights Journal (1996) 229, 232.Google ScholarCf Pallis, , who construct an argument in favour of allowing asylum-seekers rescued at sea to advance claims for asylum. Above n 70, 341 ff.Google Scholar

106 Goodwin-Gill, above n 41, 178.Google Scholar

107 The obligation of non-refoulement only applies to a certain category of persons. Therefore the State must, at the point any claim is advanced, consider the status of such persons. Once the status has been determined then the State becomes subject to further obligations under the 1951 Convention.Google Scholar

108 Conventional obligations appear to be defined in terms of territory, the term being used repeatedly.Google ScholarSee, eg, Art 14–19, 23–8, 31, and 32. However, it must be noted that the Refugee Convention was designed to tackle the refugee situation in continental Europe post Second World War when most refugees arrived across land borders.This is clearly not always the case in contemporary international society.Google Scholar

109 Thus Professor Rosaeg questions whether, as in the Tampa incident, it could apply to persons at the border, ie on board a vessel within the jurisdiction of the coastal State. Rosaeg, above n 28, s 4.2.2.Google Scholar

110 A distinction can be drawn between the scope of the non-refoulement obligation and the practical processing of asylum claims. The former may extend to those areas where the State exercises competence, whereas the latter are limited by practical convenience.Google Scholar

111 Thus the UN Human Rights Committee has construed Art 7 of the ICCPR, as including a component of non-refoulement. See General Comment No 20 (1992), HRI/HEN/1/Rev 1, 28 07 1994, para 9.Google ScholarSimilarly, the ECHR has interpreted Art 3 of the European Convention on Human Rights as including an element of non-refoulement. See, eg, Soering v United Kingdom, 98 ILR 270, para 88.Google Scholar

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114 1155 UNTS 331; (1969) 3 ILM 679.Google Scholar

115 Ibid, Art 31.

116 Ibid, Ibid, Art 31(1).

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118 Art 2(1) of the 1982 Convention provides that ‘[t]he sovereignty of a coastal State extends, beyond its land territory 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.’Google Scholar

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147 Ibid, paras 40–5.

148 Above n 131, para 40.Google Scholar

149 Ibid, para 41.

150 Ibid, para 42.

151 IMO Assembly Resolution A 920(22) (11 2001). These committees are further requested to take action to help ensure that ‘Survivors of distress incidents are provided assistance regardless of nationality or status or the circumstances in which they are found; ships, which have retrieved persons in distress at sea are able to deliver the survivors to a place of safety; and survivors, regardless of their nationality or status, including undocumented migrants, asylum seekers and refugees, and stowaways, are treated while on board, in the manner prescribed in the relevant IMO instruments and in accordance with relevant international agreements and longstanding humanitarian maritime traditions’.Google Scholar

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153 Ibid.

154 This meeting took place in July 2002. It is noted in Goodwin-Gill, , ‘Refugees and Responsibility in the Twenty First Century: More Lessons Learned from the South Pacific’ 12 Pacific Rim Law and Policy Journal (2003) 23, 43.Google Scholar

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157 Agenda for Protection, ibid, Annex IV, 38,49.