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The problems raised by the category of asylum seekers known as “boat people” (or refugees at sea) are more complex than for other kinds of asylum seekers because rescues at sea are carried out in conformity with the laws and customs of the sea. This means that several States are usually concerned in the fate of boat people: the people’s State of origin, the flag State (the State where the ship is registered and whose flag it is flying), 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.
This plurality encourages States to adopt restrictive practices. These include, in particular, the refusal to admit the asylum seekers into the territory of the State they were trying to reach once they had been picked up.
The term appeared in the late 1970s with the mass departure of Vietnamese refugees from Communist-controlled Vietnam following the Vietnam War. Since then, there have been numerous cases of boat people, including the hundreds of Somali and Ethiopian refugees who regularly cross the Gulf of Aden to reach Yemen, the refugees who fled Libya to reach Italy in 2012 during the internal conflict that devastated the country, or the hundreds of people who have fled Myanmar for Indonesia because of inter-communal violence.
There are certain clear principles of applicable law, described in the following sections.
The Legal Status of Boat People
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 (also reflected in the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa). In other words, he or she must fear persecution on the basis of his or her race, religion, nationality, membership in a particular social group, or political opinion. According to the UNHCR, fewer than 10 percent of clandestine passengers come under this definition.
The State Responsible for Refugees at Sea
Refugees at sea are under the protection offered by the flag State. The situation will therefore be different for boat people, who are likely to be on a ship belonging to their country of origin, or for clandestine passengers, who are more likely to be on a ship flying the flag of a different State. Refugees fleeing in their own makeshift boat cannot benefit from the protection of their flag State, since that State’s power is precisely what they are seeking to escape. Their boat’s fragility may lead to the problem being addressed from the point of view of the obligation to provide assistance to ships in distress and the rules governing rescues at sea.
The 1980 Brussels Convention reaffirms that a captain who fails to go to the aid of any person lost at sea—as long as he or she can do so without endangering his or her own ship, crew, or passengers—even if the person belongs to an adverse power, can be fined or imprisoned. This makes the rescue of asylum seekers in distress at sea mandatory; however, it does not posit that they can choose their port of disembarkation.
An earlier convention, signed in Brussels in 1957, seemed to solve the question of the status of clandestine passengers 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 human obligation toward clandestine passengers.
There is no law accepted by States that determines with certainty which State—the flag State or the State of first port of call—is under the obligation to allow individuals rescued at sea to disembark on its territory.
Clandestine passengers face the same dilemma when they embark on a boat in their State in the hope of disembarking in a foreign State. The responsibility of the flag State and the State of first port of call are not clearly established by international law in the case of receiving clandestine passengers. This only makes the responsibility of captains all the greater and more uncomfortable.
From a practical point of view, only the obligations to rescue people at sea are clearly set forth in international law. This is the basis from which to protect boat people, in a first phase and as best as possible, because the absence of any solution to the disembarkation question results in more or less automatic or characteristic refusals to carry out such rescues. Today, it seems that being shipwrecked and cast ashore is the only legal way for boat people to “disembark.” The UNHCR can play an important role in solving this dilemma by suggesting resettlement procedures in a second State, in the State of the first port of call, or in the State that agrees to receive the refugees.
For Additional Information: UNCHR. The State of the World’s Refugees: In Search of Solutions . Oxford: Oxford University Press, 1995, box 5.4.
Zarjevski, Yefime. A Futur e Preserved: International Assistance to Refugees . Oxford: Pergamon, 1988.