The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

■ 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.

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.

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