International Protection (SCIP), 26 August 1981
1. During the past few years, a number of problems have arisen with regard to persons who have left their country of origin by sea in order to seek asylum. In many instances, such asylum-seekers have found themselves in distress due to their unseaworthy boats and have needed to be rescued by passing vessels.
2. The problem of rescue at sea in relation to asylum-seekers was raised at previous sessions of the Executive Committee at which the duty to rescue was stressed.1 At the Committee's thirty-first session, the representative of certain major maritime States considered that the view of certain developments, the issue of rescue at sea of asylum-seekers should be the subject of further consideration. It is in response to this suggestion that the present Note has been prepared.
I. Description of the problem
3. For the past five years the Executive Committee has concerned itself with the large-scale influx of asylum from Indo-China taking to sea in overcrowded and unseaworthy vessels (popularly referred to as "boat people"). Many of these asylum-seekers were able to arrive at their destination without any assistance; others, having got into distress, were rescued by passing naval or commercial vessels; others again were the victims of pirate attacks, and yet others perished at sea. As regards those rescued, in 1979, some 8,600 boat people were picked up by 128 ships; in 1980 some 14,560 were picked up by 219 ships flying the flag of 26 nations.2
4. While the problem of the boat people is South-East Asia are numerically the most important and therefore have attracted the greatest amount of public interest, similar situations have also arisen in other Areas. The general observations made in the following paragraphs are considered equally applicable in such situations whenever they may occur.
5. When the problems of asylum-seekers rescued at sea first arose in South-East Asia, such asylum-seekers could normally be disembarked at the next convenient port of call. After a certain time, "receiving States" in the area felt unable to accommodate the growing numbers of asylum-seekers and some more refused the disembarkation of rescued asylum-seekers or permitted it only after protracted negotiations. Others again allowed the resettlement of the rescued asylum-seekers. They felt it was necessary for some of these guarantees to go into consideration detail and to contain strict time limits.
6. The restrictive attitude this adopted by various coastal States added to the difficulties which normally arise in the case of rescue at sea, e.g., cost of care and maintenance of rescued asylum-seekers while on board. Refusal of disembarkation of asylum-seekers might result in considerable expense or loss of profit for ship's owners due to the need to find an alternative port at which rescued asylum-seekers could be disembarked. Such expense or loss of profit could also result from delays in obtaining resettlement guarantees as a condition for disembarkation.
7. The above-mentioned difficulties which might result from the rescue of asylum-seekers in South-East Asia might, it was feared, discourage ship's masters from undertaking rescue operations. Incidents began to be reported of refugee boats in distress being ignored by passing ships. Survivors interviewed at one port of call (Singapore) in September and October 1979 reported that 80 to 90 per cent of the ships encountered had ignored the asylum-seekers distress signals.
8. This situation gave rise to serious concern on the part of the international community and was given repeated attention by the Executive Committee. At its thirtieth session in 1979 the committee "called upon all States to ensure that masters of vessels sailing under their flag scrupulously observed established rules regarding rescue at sea and to take all necessary action to rescue refugees and displaced persons leaving their country of origin on boats in order to seek asylum and who are in distress."3
9. As a result of this concern and of certain practical arrangements which could be worked out, the situation appears generally to have improved. By and large, port of call countries permit disembarkation upon receipt of guarantees for resettlement, the required strictness of which varies from country to country, and in some cases for care and maintenance. While such guarantees are in principle provided by the flag States of rescuing ships, problems have arisen in regard to certain flag States which consider that they are not able – or cannot reasonable be expected – to guarantee the resettlement of large numbers of asylum-seekers. The States specially concerned were States of so-called "flags of convenience" or comparatively small countries, with large merchant fleets.
10. To overcome some of these difficulties, a Meeting of Experts, convened by the High Commissioner in Geneva in August 1979, proposed that a special reserve of resettlement guarantees be established in order to help speed up the disembarkation of rescued people where such guarantees are required and are not readily available. Upon a subsequent appeal, a number of countries contributed to such a reserve which was established in May 1980 (under the designation DISERO – abbreviation for Disembarkation Resettlement Offers). The countries contributing to this pool have done so on varying conditions. While some were prepared to guarantee resettlement to the disembarked refugees without prior selection, others insisted on the application of their own immigration procedure prior to admission. So far, the scheme has been generally successful. By the end of May 1981, of the 1,190 resettlement offers available under DISERO, 444 remained in the pool, while 650 persons had been disembarked with the aid of the scheme. (For details of the contributions to DISERO and resettlement offers used, see Annex I).
11. These various ad hoc arrangements have served to contain the problem and have established a certain routine in the handling of asylum-seekers rescued at sea. Under these arrangements, however, the flag States of rescuing vessels – except when the DISERO pool comes into operation – have to assume a heavy burden in terms of guarantees, if they want to disembark rescued asylum-seekers without undue delay and financial loss.
II. Rules of international law applicable to the rescue of asylum-seekers in distress at sea
(a) The duty to rescue
12. According to international law, there is an obligation to rescue any person in distress at sea which, of course, includes asylum-seekers. The first international instrument dealing with rescue at sea was the Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea signed in Brussels on 23 September 1910. According to Article 11 of the Convention:
"Every master is bound so far as he can do so without serious danger to his vessel, her crew and passenger, to render assistance to everybody, even though an enemy, found at sea in danger of being lost.
The owner of a vessel incurs no liability by reason of contravention of the above provision."
This provision, reflecting what had always been the accepted rule of behavior of seafaring man, places the primary obligation for rescue on masters of vessels.
13. The 1958 Geneva Convention on the High Seas carries the matter further by imposing an express obligation upon States to render aid to persons in distress at sea. According to Article 12 of this Convention,
"1. Every State shall require the master of a ship sailing under its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers;
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress if informed of the need of assistance, in so far as such action may be expected of him;
(c) After a collision, to render assistance ...
2. Every coastal State shall promote the establishment and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and – where circumstances so require – by way of mutual regional arrangements to co-operate with neighbouring States for this purpose. "4
14. The obligations of ship's masters and of States in regard to rescue are reiterated and further developed in the International Convention for the Safety of Life at Sea (SOLAS) of 1960.
15. In respect of ship's masters, Regulation 10 of the SOLAS Convention provides, inter alia, that:
"The master of a ship at sea, in receiving a signal from any source that a ship or aircraft or survival craft thereof is in distress, is bound to proceed with all speed to the assistance of the persons in distress informing them if possible that he is doing so. If he is unable or, in the special circumstances of the case, considers it unreasonable or unnecessary to proceed to their assistance, he must enter in the logbook the reason for failing to proceed to the assistance of the persons in distress."
16. In respect of States, Regulation 15 provides that:
"(a) Each contracting government undertake to ensure that any necessary arrangements are made for coast watching and for the rescue of persons in distress at sea round its coasts. These arrangements should include the establishment, operation and maintenance of such maritime safety facilities as are deemed practicable and necessary having regard to density of the sea-going traffic and the navigational dangers, and should, so far as possible, afford adequate means of locating and rescuing such persons.
(b) Each contracting government undertakes to make available information concerning its existing rescue facilities and the plans for changes therein, if any."
17. Finally, in April 1979, a large number of seafaring nations within the framework of the Inter-Governmental Maritime Consultative Organization (IMCO) adopted an International Convention on Maritime Search and Rescue which conforms and expands the obligations described above. The provisions of this Convention are of particular significance in that they further reinforce the obligations of States in regard to rescue and state explicitly that these obligations apply in the case of refugees and displaced persons. The Convention contains provisions for practical co-operation between States for implementing the rescue of persons in distress (thus further developing the provisions of Article 10 of the SOLAS Convention of 1960). It also provided in the Annex to the Convention that the rescue obligation refers to all persons in distress regardless of their nationality or status or of the "circumstances in which the person is found."5 This is intended to refer to the position of refugees which is made more explicit in item 220.127.116.11 of the Annex, where it is provided that a situation of distress shall be notified not only to consular or diplomatic authorities, but also to competent international organs if the situation of distress pertains to refugees or displaced persons.6
18. From the foregoing, it is evident that there is a definite international commitment by seafaring States to rescue persons in distress at sea and a commitment by coastal States to co-operate in the implementation of rescue operations.
(b) The problem of disembarkation of asylum-seekers: responsibilities of countries of first port of call
19. The various Conventions referred to above do not specially deal with the questions of disembarkation of persons rescued at sea. A vessel rescuing persons in distress at sea would, however, normally proceed to its next port of call, there to disembark the persons rescued who would then be taken in charge by their national diplomatic or consular authorities.
20. This procedure was until recently considered so obvious that it was not found necessary in any of the instruments quoted above, to stipulate an express obligation for the country of the first port of call to permit the disembarkation of rescued persons. Such an obligation was simply implied, a presumption which is reinforced by, e.g., the wording of Regulation 15 of the 1960 SOLAS Convention (quoted above in para, 16) and by the wording of Article 12 para. 2 of the 1958 Geneva Convention of the High Seas (quoted above in para. 13) which provide for the responsibility of coastal States and for their co-operation in rescue operations.
21. What appeared to be a routine procedure, however, met with difficulties with the advent of the people, who, besides coming in great numbers, did not enjoy the protection of any diplomatic authority. It has been seen, however, that 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. To permit the disembarkation of boat people in the most liberal manner would be fully in line with these provisions. By the same token, to refuse disembarkation or to permit it only under strict resettlement guarantee conditions would not be in the spirit of accepted international principles, since this might indirectly discourage rescue at sea.
22. In the case of the boat people, the question arises as to whether a responsibility to permit disembarkation could not also be derived from more general considerations relating to asylum7 The Conclusions adopted by the Executive Committee at its thirtieth and thirty-first session concerning situations of large-scale influx would appear to be of relevance in this connection. In these Conclusions the Committee stressed "that in cases of large-scale influx, persons seeking asylum should at least receive temporary refuge. At the same time Status which, because of their geographical situation are faced with a large-scale influx, should receive immediate assistance from other States in accordance with the principle of equitable burden-sharing". Through the application of this principle, a considerable number of boat people have been able to find durable settlement opportunities in countries of second asylum. The question therefore arises as to whether the provision of "resettlement guarantees" should still be regarded as a necessary condition for the disembarkation of rescued refugees;
(c) Responsibilities of flag States of vessels rescuing asylum-seekers
23. While, as stated under para. 12(a) above, there is a clear duty for ship's masters, their owners and their Governments to rescue asylum-seekers at sea, there is no obligation under international law for the flag State of a rescuing vessel to grant durable asylum to rescued refugees. It is, of course, correct that by boarding a vessel, the refugee comes under the jurisdiction of the flag State which is considered to exercise jurisdiction over the ship on the high seas. There is, however, no valid legal basis for considering that by boarding a vessel a refugee has entered the territory of the State exercising jurisdiction over the ship. Moreover, even if physical presence on the ship were regarded as tantamount to presence in the territory, this would not in the present status of international law constitute an obligation for the flag State to grant durable asylum.
24. Nevertheless, in order to help disembark refugees rescued at sea and to resolve an acute humanitarian problem, a number of major maritime nations have consented to provide the guarantees insisted upon by certain coastal States. While the procedure has functioned smoothly over the past few years and has no doubt benefited many refugees, it has, as stated above, only been made possible through the assumption of a heavy burden by those nations which have a large maritime trade in the area.
25. (a) There has been an improvement in regard to the rescue of asylum-seekers in distress at sea since the Executive Committee's thirtieth session as indicated by a decline in the number of reported cases in which distress signals of asylum-seekers at sea have been disregarded.
(b) This improvement has been facilitated by the willingness of the flag States of rescuing ships to provide guarantees of resettlement required by certain coastal States as a condition for disembarkation. It has also been facilitated by the agreement of these and other States to contribute to a pool of resettlement guarantees under the DISERO Scheme.
(c) In accordance with established international practice, supported by the relevant international instruments, persons rescued at sea should normally be disembarked at the next port of call. This practice should also be applied in the case of asylum-seekers rescued at sea.
(d) The granting of permission to asylum-seekers to disembark without the need for resettlement guarantees would also be in line with the conclusions adopted by the Executive Committee at its thirtieth and thirty-first sessions, that in cases of large-scale influx, asylum-seekers should always be granted at least temporary refuge. Such disembarkation is, of course, understood to be within the general context of arrangements of relieving the burden of first asylum countries.
(e) As a result of concerted efforts by many countries, large numbers of resettlement opportunities have been, and continue to be, provided for boat people. In view of this development, the question arises as to whether the first port of call countries might wish to reconsider their present policy or requiring resettlement guarantees as a precondition for disembarkation.
(f) Pending a change of practice by coastal States, it is of course desirable that the present arrangement for facilitating disembarkation be continued.
1. The Inter-Governmental Maritime Consultative Organization (IMCC), established by a Convention of 6 March 1948, comprises at present 121 member States and one associate member.
2. The International Conference on Maritime Search and Rescue, convened by the Assembly of IMCO in Hamburg, Federal Republic of Germany, from 9 to 27 April 1979 was attended by delegations of 51 member States. Three States were represented by observers.
3. The International Convention on Maritime Search and Rescue, as well as the Final Act of the Conference, was adopted on 27 April 1979. To date, the Convention has been ratified by France, the United Kingdom, and the United States. It enters into force 12 months after 25 States have become parties to it.
4. The following provisions of the Convention have been referred to in para. 17 of the present Note :
(a) General obligations under the Convention
"The Parties undertake to adopt all legislative or other appropriate measures necessary to give full effect to the Convention and its Annex, which is an integral part of the Convention. Unless expressly provided otherwise, a reference to the Convention constitutes at the same time a reference to its Annex."
(b) Other treaties and interpretations
(i) "Nothing in the Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to resolution 2759 (XXV) of the General Assembly of the United Nations not the present or future claims and legal views of any State concerning the law of the sea and the nature end extent of coastal and flag State jurisdiction.
1 See Official Records of the General Assembly, Thirty-second Session, Supplement No. 12A, (A/32/12/Add.1) para. 36B; Official Records of the General Assembly, Thirty-third Session. Supplement No. 12A, (A/33/12/Add.1) para. 38E and Official Record of the General Assembly, Thirty-fourth Session Supplement No. 12A, (A/34/12/Add.1) para. 72(1) (d).
2 Figures based on information provided by UNHCR Offices in Hong Kong, the Philippines, Singapore, Thailand and Japan. The world totals may be higher.
3 See Official Records of the General Assembly, Thirty-fourth Session, Supplement No. 12A, (A/34/12/Add.1) para. 72(1) (d)
4 This rule, which was also embodied with minor modifications into the draft Convention under elaboration by the United Nations Third Conference on the Law of the Sea, implies the requirement to enact municipal legislation, but the absence of such legislation would not absolve the contracting State from its obligations in regard to rescue.
5 See item 2.1.10 in Annex II of the present Note.
6 Ibid., item 18.104.22.168.
7 If the asylum-seeker does not have a fear of persecution in relation to the flag State and if his life or freedom are not threatened on board the ship which rescued him, refusal of disembarkation would not, of course, constitute a violation of the principle of non-refoulement. Moreover, in the present state of international law, the country in which disembarkation is sought cannot be considered as being under a legal obligation to grant asylum.