■ Boat People, Refugee at sea, Search and Rescue at Sea
The term “boat people” first appeared in the late 1970s to describe the mass exodus of Vietnamese refugees from Communist-controlled Vietnam following the Vietnam War. Since that time, there have been numerous waves of boat people over the world’s seas. Somali and Ethiopian refugees regularly—cross the Gulf of Aden to reach Yemen’s shores. Thousands of refugees from countries affected by armed conflict such as Afghanistan, Iraq, Syria as well as Sub-Saharan and Northern African countries cross the Mediterranean Sea to reach Europe. In Southeast Asia, refugees are also fleeing overseas from Myanmar and other countries to reach notably Indonesia and Australia. In most scenarios they are left without any regular means of travelling abroad due to a lack of access to identity and other legal documents. In the absence of an alternative legal pathway toward countries of asylum and safety they travel on overcrowded and unsafe boats. What characterizes boat people is their particular exposure to dangers of the sea and their vulnerability towards smugglers that can make lucrative business of their distress. They are also specifically vulnerable to State practices of preventing boats from reaching their territorial water and shores and restricting maritime search and rescue (SAR) operations as well as disembarkation in their ports. According to the IOM missing migrant project, drowning of boat people is the first cause of death for migrants and the central Mediterranean route is the deadliest one. From 2014 to 2022, an estimated 25 277 boat people died in the Mediterranean Sea, among them around 2000 for the sole year of 2022.
The problems raised by the category of asylum seekers known as “boat people” (or refugees at sea) differ from other kinds of asylum seekers because rescues at sea are governed by the laws and customs of the sea. This means that several States are usually responsible, at least in part, for the fate of boat people: the people’s State of origin, the flag State (the State where the ship is registered and under whose flag the ship sails), the State where the ship makes its first stop after the rescue, and, if the case arises, the State offering to let the boat people resettle in its territory.
The legal status of boat people sits (I) at the crossroad of different and distinct set of international rules notably: international maritime law, international refugee law and fundamental human rights but also international criminal law related inter alia to the smuggling of people. These legal frameworks rely on different patterns of State responsibility (II) creating tension when it comes to clear and fair implementation in concrete cases. International rules applicable to SAR of shipwrecked (III) reflect one of the oldest international rules of humanity and maritime solidarity commitment. However, the legal consensus on mandatory life saving operation does not extend to binding rights and State’s duties related to disembarkation.
Created to answer exceptional and emergency situations of sea danger, the legal framework of SAR is put to the test when confronted with the massive and structural flow of boat people in need of rescue and disembarkation. The plurality of parties involved open the door to States legal controversies and restrictive practices, including refusing to admit asylum seekers rescued at sea into their territory.
This also jeopardizes SAR operations, putting rescue imperatives against border control considerations.
I. The Legal Status of Boat People
Boat people is a generic non-legal term covering individuals who may be covered by different international legal status of protection such as: refugee at sea, irregular migrant, clandestine passenger (stowaways), shipwrecked person, victims of human trafficking or even smugglers. Not every clandestine passenger, or “boat person” is considered a refugee at sea under international law. To be considered as such, the individual must meet the criteria established in article 1(a) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention). This is also reflected in the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa. In other words, he must fear persecution on the basis of his race, religion, nationality, membership in a particular social group, or political opinion.
In the context of mixed migration flows, the generic term “migrant” is generally used to describe all boat people. Even if they are called migrant, States are under an international obligation to assess the individual status of all those asking for asylum. For all other people, (including irregular migrants), they remain protected by basics fundamental international human rights notably against forced return, collective expulsion and refoulement to a country where their life and safety are in danger.
In addition, international law relating to SAR of shipwrecked at sea is binding on all State and applies without discrimination toward all people found in danger at sea. This is obviously the case in numerous situations where people are found on dangerous and precarious boats.
While international maritime law regulates SAR obligations as well as the management of clandestine passenger, responsibility sharing regarding disembarkation fuels tensions among various States involved: flag State of the boat, Coastal States including State of first port of call or first “safe country” port.
II. The State Responsible for Refugees and people at Sea
Individuals at sea, including refugees, are primarily under the responsibility of their boat’s flag State. According to the international Convention for the safety of life at sea (SOLAS) adopted in 1974 and entered into force in 1980, flag States are responsible for ensuring that ships under their flag comply with safety and security requirements concerning the construction, equipment, communication and navigation. This includes rules and equipment necessary for the security of people and cargoes as well as the obligation for captains to proceed to the assistance of those in distress (chapter V). According to the 1957 international Convention relating to stowaways, the flag State and the captain are responsible for clandestine passengers including those who are asylum seekers. This Convention attempted to solve the question of the status of clandestine passengers and to rule on State responsibility for disembarkation, by imposing the obligation to receive such persons upon the State of the first port of call instead of on the flag State. However, this convention never entered into force as States refused to take on such a clear obligation toward disembarkation of clandestine passengers. Consequently, the Convention on Facilitation international maritime Traffic (FAL), adopted in 1965, avoided to rule on the issue of disembarkation.
Even if the 1957 Convention is not officially in force, the UNHCR considers that it reflects State agreement on the treatment of maritime refugees and the necessity to take into account their need for international protection in the process of disembarkation including their right not to be returned to a place and country where their life and freedom may be in danger. Article 5(2) requires the captain of the ship and the competent authorities of the port of landing to “take into account the reasons which may be put forward by the stowaway for not being disembarked at or returned to those ports or States mentioned in this Convention”
In the case of people fleeing their country on makeshift rafts, the fragility of the boat may trigger the obligation for a nearby vessel to assist the ship in distress in accordance with the rules governing rescues at sea. Persons rescued at sea are considered shipwrecked under maritime law. They are under the dual responsibility of the flag State of the rescuing vessel, and the coastal State in charge of the rescue area.
☞ Disembarkation in the first “safe country” port is not a right but an agreed best practice to provide adequate assistance to shipwrecked and to release the captain from the burden of such care. There is no binding rule under international maritime law that determines with certainty which State—the flag State, the Coastal State, the State of first port of call or the State of first “safe country” port —is under the obligation to allow individuals rescued at sea to disembark on its territory. Maritime law relies on cooperation and affirms that the State in charge of the maritime rescue zone is given primary responsibility for ensuring such coordination and cooperation. That State is in charge of assigning a port of disembarkation. However, it cannot impose this decision on other states.
Clandestine passengers face the same dilemma when they embark on a boat in their home State in the hope of disembarking in a foreign State. While the responsibility of the flag State in the case of receiving clandestine passengers is clearly established, there is no international duty for the State of first port of call to accept disembarkation. This only makes the responsibility of captains all the greater and more uncomfortable. Disembarkation in a safe country is a duty when it reflects the absolute prohibition under international law to send back any person to a place where his or her life and liberty are in danger. In practice each operation requires the State of port agreement.
III. Legal Obligations regarding SAR of people at sea
The duty of rescue at sea is a very old international customary rule. From a legal point of view, only the obligations to rescue people at sea are clearly set forth in international law. They are binding on all maritime State and all masters of boats. As mentioned in the UNHCR Rescue at Sea, Stowaways and Maritimes interception 2011 publication, the obligation to “come to the assistance of persons in distress at sea” with further emphasis that “[t]his obligation is unaffected by the status of the persons in question, their mode of travel, or the numbers involved”. This is widely reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) at article 98, in the 1974 International Convention for the Safety of Life at Sea (SOLAS) at article VI(b), and in the International Convention on Maritime Search and Rescue of 1979 (SAR) at articles 2.1.9 and 2.1.10 and in the 1958 Convention on the High Seas at article 12.
International organizations involved in the rescue of people at sea are the International Maritime Organization (IMO), the UNHCR and the International Organization for Migration (IOM).
The adoption of the SAR by the IMO set the international legal framework that organise and coordinate States duties around the creation of 13 maritime areas. In those 13 areas, States parties commit to organise and coordinate among themselves with regard to the establishment of: maritime rescue zones, maritime rescue call centers (MRCC) and procedure binding on all flag and coastal States and within which all captain of boats must engage in rescue operations.
This convention has been amended in 2004 by the adoption of revised guidelines on the treatment of persons rescued at sea (MSC 78/26/Add.2, Annex 34) and amendment of SOLAS regulation 5V/33 paragraph 1(1) and Annex to SAR Convention (paragraph 3(1)(9)). The 2004 amendments and guidelines improve coordination between States to identify the best places to disembark people rescued at sea and to assist the captain in finding safe place for disembarkation of those person. They also clarify criteria and condition applicable for assigning a place of disembarkation.
While lifesaving is a legal duty binding on all stakeholders, some flexibility is allowed for the final disembarkation process within the agreed criteria related to the assignment of the port of disembarkation: proximity, safety and available rescue equipment.
States parties undertake to entrust their respective MRCCs with the authority to ensure coordination and cooperation in rescue operation and to find the most appropriate port of disembarkation.
They also agree that the State in charge of a rescue area is the one in charge of organising the rescue and designating the best place for disembarkation, even if it cannot impose that decision on other States port.
It is agreed that the responsible government has the flexibility to address each situation on a case-by-case basis, while ensuring that the masters of ships that are providing assistance are relieved of their responsibility within reasonable time and with the least possible impact on the ships (art. 2(6)).
Guidelines also requires that the disembarkation happens in a place of safety defined as a location where rescue operations are considered to terminate. This “safe country” port “is a place where the survivors’ safety of life is no longer threatened and where their basic human needs can be met” (art. 6(12)). The amended convention also clarifies that a place of safety should take into account the particular circumstances of the case. Guidelines recall that each case is unique, and government should co-operate with each other with regard to providing suitable places of safety for survivors after considering relevant factors and risks (art. 6(16)). They also affirm the need to avoid disembarkation where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened (art. 6(17)).
Safe port and safe country
Unfortunately, the concept of the closest and safest port or safe country still gives rise to some form of confusion and legal ambiguity as it draws in part from maritime law as well as from international and refugee law.
Disembarkation in the first or closest safe port is not, under maritime law, a clear-cut right of the master of the boat or the State in charge of the rescue zone but an agreed best practice allowing to provide adequate assistance to shipwrecked and to release the captain from the burden of such care.
Safe country disembarkation is a legal obligation that reflects the absolute prohibition under international law to return any person to a place where his life and liberty are in danger.
Under international law, SAR operations at sea need to be read along the international principle of non-refoulement (PNR) and the concept of safe country. Indeed, non-refoulement, to which no reservation is permitted, is a principle of customary international humanitarian law that is enshrined at article 33 of the Refugee Convention as well as incorporated into common article 3 of the Geneva Conventions and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. At the European Union (EU) level, it is also found in the Charter of Fundamental Rights of the EU (arts. 18 and 19) and in the Treaty on the Functioning of the EU (art. 78). The European Court of Human Rights has interpreted the right not to be subject to torture, pursuant to article 3 of the European Convention on Human Rights (ECHR), to encompass the PNR. Non-refoulement foresees that no one can be transferred to a country where he would be in danger of being subjected to torture or other form of ill-treatment, arbitrary deprivation of life or persecution on account of his race, religion, nationality, political opinion or membership in a particular social group. It not only covers person recognised as refugees but also all individuals claiming such fear and not only refers to expulsions within a host State’s territory but also rejection at the borders. It therefore means that the disembarkation of person rescued at sea must be done in a place where they are safe according to the PNR criteria and guarantees.
However, State practices remain far from effectively respecting this international legal duty. For instance, the UN Secretary General report on the implementation of resolution 2491 (which enforce an arms embargo on Libya and authorise member States to inspect vessels on the high seas off the coast of Libya (when they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking) and to seize vessels if there is confirmation of that) confirmed that under international law, Libya is neither a safe port of disembarkation nor of return while noting that policies of member States continue to result in the disembarkation of migrants and refugees in Libya (as of December 2022, according to the IOM, a total of 7,992 migrants and refugees have been rescued at sea and returned to Libyan shores).
Managing SAR or border control and migration flows
Created to answer exceptional emergency situations of sea danger, the legal framework of SAR is put to the test when confronted with massive and structural migration flow of boat people in need of rescue and disembarkation in different historical and contemporary contexts around the globe.
This has been recently exemplified by the problems encountered by SAR operations of boat people in the Mediterranean Sea in the context of the EU. These problems materialized both in terms of boat rescue capacity and State pressure on disembarkation.
In the context of the EU, this issue is aggravated by the fact that SAR and disembarkation are not covered by a common EU legal framework. This creates tensions (for countries with EU external sea borders) between their duty to allow disembarkation and their responsibility to control immigration within the EU and to process asylum requests as first country of entry.
In 2013, the number of boat people in danger at sea largely exceeded the capacity of merchant ships. Following the drowning of 366 migrants in Lampedusa of the Pelagie Islands, Italy involved its navy in the special Mare Nostrum SAR project launched in October 2013. This project rescued 100 000 persons over one year for a monthly cost of 9 million euros. The project raised a lot of criticisms such as the unfair burden sharing among EU member States as well as allegations of facilitating illegal entry of migrants into European territory.
The Mare Nostrum project was replaced in 2014 by the European Frontex program aimed at controlling external borders of Europe rather than engaging in SAR and sharing the burden of disembarkation shouldered by coastal States.
This prompted a response from various humanitarian non-governmental organizations such as MSF and SOS Méditerranée to carry out SAR operations. For instance, from May 2015 until 29 August 2020, 686 operations were carried out and around 82 000 people were assisted by the MSF rescue boats. They faced the same allegations of facilitating illegal migration as the one raised against the Italian Navy. However, these criticisms turned into official accusations from some governments. Criminal cases of colluding with smugglers and for facilitation of illegal immigration were brought against these humanitarian organizations and their staff by various States to obstruct SAR operations and limit the number of disembarkations after a rescue, rather than allowing humanitarian organizations to remain at sea looking for other migrant boats in distress, as it generally used to occur.
Coming five years after the 2015 Mediterranean migration crisis, the EU new pact on Migration and Asylum of 23 September 2020 has yet to be approved by the 27 EU States. It aims to replace the Dublin regulations which require people to apply for asylum in the first EU country they enter. It establishes stronger sharing of responsibility and solidarity among EU member States, notably toward its coastal or external border States members, with regard to migration, asylum as well as SAR operations.
The EU new pact recalls the full respect of the obligation laid down in international law concerning the rescue of people at sea. It affirms the principle of solidarity and fair sharing of responsibility. Implementation of the solidarity principle remains voluntary, but the sharing of responsibility should be based on the proposed revised criteria for determining member State responsibility. Those criteria are listed in part III, chapter II of the EU commission new asylum and migration management regulation. They should alleviate the pressure put on EU coastal States by SAR operations. State of disembarkation and therefore of first entry should not anymore be responsible for managing cases of unaccompanied minors with family respondent in another EU country (art. 15), as well as the cases of adult with family-related cases in other EU countries (arts. 16-18).
According to this new pact, all necessary guarantees will be put in place to ensure that every person has an individual assessment that takes account of the vulnerabilities of certain applicants, in full respect of their fundamental rights, including the PNR. With regard to SAR it recalls that saving lives at sea is a mandatory obligation for all EU States and that disembarkation following SAR operations at sea need to be done in a place of safety. More importantly, it should also bring clarity to the issue of criminalisation for private actors through guidance on the implementation of the counter-smuggling rules and makes clear that carrying out the legal obligation to rescue people in distress at sea cannot be criminalised. This pact still needs to be endorsed by States at EU level.
Meanwhile, the absence of a binding international framework relating to State responsibility and burden sharing toward migration and asylum, disembarkation of people rescued at sea remains a source of tension between States and of additional danger for individuals. Therefore, it seems that being shipwrecked and cast ashore is the only “legal” way for boat people to “disembark.” This has led some State to prevent boats from reaching their shores by pushing them back outside territorial water to high sea.
In it is this context that Frontex general director resigned in April 2022 after investigation by the European Anti-Fraud Office showing Frontex involvement in illegal refoulement of migrant during maritime border control operations. Jurisprudence of the European court of human rights condemned this practice as illegal in one instance involving Italian interception of Somali and Eritrean refugees in high sea and their transfer in Libya. (see below).
In the Safi and others v. Greece case, the European Court of Human Rights held that the behavior of Greek security officials via its “pushback” operation that led to the sinking of a migrant boat, killing eleven (including children and infants) as well as the ensuing strip search of the survivors and the condition under which it took place, violated the migrants’ right to life and the prohibition on inhuman or degrading treatment found in articles 2 and 3 of the ECHR. ( Safi and others v. Greece , Application mo. 5418/15, [Chamber], Judgment, 7 October 2022, paras. 157-167, 194-198).
In the*Hirsi et al. v Italy case, the ECtHR found that article 3 also applies in high seas and recalled that “a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying”. It found the Italian authorities in violation of article 3 of the ECHR (right to not be subject to torture) when they transferred to Libya 11 Somali nationals and 13 Eritrean nationals that were intercepted on the high sea before they could reach the Italian coast (Hirsi Jamaa and Others v. Italy, Application No. 27765/09, [Grand Chamber], Judgment, 23 February 2012, paras. 76, 135-137, 156-158).
**For Additional Information:
Barsalou, Olivier, 2008 « l’’interception des réfugiés en mer: un régime juridique aux confins de la normativité »,*Lex electroni ca, vol. 12 no 3 (Winter 2008), available at https://www.lex-electronica.org/files/sites/103/12-3_barsalou.pdf
European Parliament,*Search and rescue in the Mediterranean , European parliament Briefing, January 2021, available at https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/659442/EPRS_BRI(2021)659442_EN.pdf
Forensic Architecture,*By Location , November 2022, available at https://forensic-architecture.org/location/mediterranean-sea
Lloyd-Damnjanovic, Isabella, “Criminalisation of Search-and-Rescue Operations in the Mediterranean Has Been Accompanied by Rising Migrant Death Rate”,*Migration Policy Institute , 9 October 2020, available at https://www.migrationpolicy.org/article/criminalization-rescue-operations-mediterranean-rising-deaths
International Organization for Migration,*Missing Migrants Project, 12 November 2022, available at https://missingmigrants.iom.int/region/mediterranean
United Nations High Commissionner for Refugees.*The State of the World’s Refugees: In Search of Solutions . Oxford: Oxford University Press, 1995, (see box 5.4).
Rescue at Sea, Stowaways and Maritime Interceptions: selected reference materials, 2nd Edition, December 2021. Available at https://www.unhcr.org/ie/media/rescue-sea-stowaways-and-maritime-interception-selected-reference-materials-2nd-edition
United Nations Human Rights Office of the High Commissioner,“Lethal Disregard” Search and rescue and the protection of migrants in the central Mediterranean Sea* , May 2021, available at https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/OHCHR-thematic-report-SAR-protection-at-sea.pdf
Zarjevski, Yefime.*A Futur e Preserved: International Assistance to Refugees , Oxford: Pergamon, 1988.