Problems Related to the Rescue of Asylum-Seekers in Distress at Sea
EC/SCP/30

International Protection (SCIP), 1 September 1983

Introduction

1. The problem of rescue of asylum-seekers in distress at sea continues to give rise to serious concern. According to available statistics, significantly fewer Indo-Chinese refugees are currently being rescued at sea than in previous years, both absolute numbers as well as proportion of total boat arrivals. Between December 1982 and mid-March 1983, no refugees rescued at sea arrived in Singapore, normally the principal port of refugee disembarkation. During the month of February 1983, no refugee was rescued at sea. This was the first month since 1979 that no rescue took place in the area.

2. The number of countries whose vessels rescued refugees in distress at sea decreased from 33 in 1981 to 13 up to the end of August 1983. In addition, not all countries in the region allow disembarkation of refugees and thus force ships to continue their voyage with persons aboard for whose further presence the vessels are not equipped. This appears to be a disincentive to further rescue.

3. Shipowners and masters of vessels have stated that they again anticipated financial losses due to delays encountered in picking up and disembarking refugees. UNHCR has also been advised of certain changes in contractual arrangements concerning the frequently used "time charter" which, contrary to earlier practice, now burden shipowners with expenditure incurred through the rescue of refugees in distress at sea. This could serve as a deterrent to shipowners when considering rescue. UNHCR has learned, however, that in some instances, compensation for expenses and delays of diversion together with consequential losses is provided through Protection and Indemnity Clubs ("P & I Clubs").

Action taken by UNHCR

4. In order better to inform shipowners and masters of appropriate and accepted procedures, UNHCR published in 1983 the "Guidelines for Disembarkation of Refugees" which have since been distributed to Governments, shipping councils, shipowners and shipping circles. These guidelines explain in some detail established procedures which should be followed whenever refugees are rescued. They also give addresses where help can be obtained and explain what costs are reimbursed by UNHCR. UNHCR field offices in the region report that in fact ships do not suffer any delays when disembarking refugees if the established procedures described in the guidelines are followed.

5. The particular problem of ships flying the flag of States operating on open registry (so-called "flags at convenience") as well as of countries which for a variety of reasons are not able to guarantee permanent admission to refugees are solved through the operation of the DISERO (Disembarkation Resettlement Offers) scheme which was initiated by UNHCR in 1979. Five countries are presently contributing to this scheme and two other countries are considering contributions. However, the number of places presently available for the disembarkation of refugees has fallen to allow level. Governments have therefore been requested to consider participating in this scheme or to renew their contributions in order to facilitate the continued rescue of refugees by vessels covered under the DISERO operation.

6. UNHCR seeks to develop further its co-operation with specialized agencies and organization in order to solve problems related to the rescue at sea of refugees. In this connection, UNHCR has initiated discussions with the International Maritime Organization (IMO) to explore alternative approaches. Specifically, the possibility of another joint UNHCR-IMO appeal aimed at ensuring the rescue of asylum-seekers at sea is under consideration. Such an appeal would be addressed to the 125 member States of IMO as well as to the International Chamber Shipping (ICS).

7. Also under consideration is the introduction of a draft resolution at the thirteenth session of the General Assembly of the IMO which will be held in London in November 1983. Such a draft resolution would draw the attention of the member States of the IMO to the recent sharp decline in the rescue of refugees in distress at sea and would call upon them to honour the traditional obligation of ships to save life on the high seas.

Action taken by the Executive Committee

8. In July 1982, a working group met in Geneva to discuss the problem related to the rescue of asylum-seekers at sea. Its report was considered by the Executive Committee at its thirty-third session. In its conclusions the Committee:

(a) noted the report of the working Group of Experts on the Rescue of Asylum-Seekers at Sea (EC/SCP/21);

(b) reiterated the fundamental character of the obligation to rescue asylum-seekers in distress at sea;

(c) stressed the importance for coastal States, flag States, countries of resettlement and the international community as a whole to take appropriate steps to facilitate the fulfilment of this obligation in its various aspects;

(d) considered that solution of the problem connected with the rescue of asylum-seekers at sea should not only be sought in the context of legal norms but also through practical arrangements aimed at removing as far as possible the difficulties which have been encountered;

(e) noted that the report of the Working Group of Experts contained a number of suggestions aimed at achieving such arrangements and called upon UNHCR to examine the feasibility of those suggestions;

(f) noted the preliminary report submitted by the High Commissioner (EC/SCP/24) and requested UNHCR to continue its study of the matter and to submit a report to the Executive Committee at its thirty-fourth session, through its Sub-Committee on International Protection.

Proposal for a scheme for Rescue at Sea Resettlement Offers

9. Pursuant to this request, in 1982 and 1983, UNHCR met with representatives of various Governments, both in Geneva and in the respective capitals. On 30 May 1983, the Director of International Protection met at UNHCR Headquarters with representatives of countries who had expressed a particular interest in this matter and discussed with them a proposed arrangement entitled "Rescue at Sea Resettlement Offers (RASRO)".

10. The basic approach of this proposal, the text of which is given in Annex I, is as follows:

(a) Flag States would continue to provide the required resettlement guarantees in order to facilitate quick disembarkation in the port-of-call country of persons rescued by their ships.

(b) For the subsequent resettlement of those rescued, the proposal envisages a pool of resettlement places to which traditional flag States in the area and others that may wish to participate would contribute according to fixed criteria, e.g. a proportion of the average actual intake by flag States of all persons rescued by their ships in the last three years. Contributions to the pool would be determined after consultation with UNHCR. Admissions for resettlement by the participating country in a given year would be limited to their contribution, irrespective of the number of persons rescued by their ships in the particular year, as long as places remained available in the pool.

(c) If, however, the number of rescued persons in a given year should exceed the number of places available in the pool, flag States would then be required to respect their guarantees for all cases rescued after the exhaustion of the pool.

(d) Flag States not participating in the pool would not benefit from the operation of the pool.

11. The advantages of the proposed arrangement from the point of view of coastal States, participating States and refugees are the following:

(a) For coastal States (or port-of-call States), the scheme would ensure the continuation of the present resettlement guarantee system at the same time assuring the department of the refugee concerned within a given period of time.

(b) For flag States, the scheme would facilitate advance planning for the financing, reception and integration of a given number of refugees. If the scheme is successful, it is likely that their yearly intake of rescued refugees will not exceed their contribution to the pool. This would facilitate the planning and implementation of an overall refugee policy.

(c) For non-flag States which nevertheless accept "boat people" for resettlement, the scheme would provide an opportunity to participate in a programme based on a spirit of international burden-sharing and to receive a fixed number of refugees for whom advance planning in terms of financing, reception and integration would be possible.

(d) For the refugees, who would be the ultimate beneficiaries, the scheme would help to ensure that shipmasters who encountered them in distress at sea would not be deterred from their duty to rescue. The automatic guarantee system would facilitate quick disembarkation. Also, refugees might have a better chance of going to a resettlement country where their individual background would favour speedy integration, provided that such a country was a participant in the scheme.

12. A basic prerequisite for the successful operation of such a scheme is the participation of the greatest number of States willing to pool their resources in a spirit of International burden-sharing.

13. In June 1983, the Director of International Protection addressed a communication to those Governments which participated in the discussions on the proposed RASRO scheme and invited comments on the following questions:

(a) Would your Government agree with the basic approach of the proposal?

(b) Would your Government agree to contribute places to the proposed "Rescue at Sea Resettlement Offers" (RASRO) scheme?

(c) How many places would your Government be prepared to make available and what criteria would be applied in arriving at such a quota?

(d) If the total number of resettlement places made available by Governments represents a workable contribution, would your Government agree to implementing the scheme for a trial period?

14. At the time of the drafting of the present note, six Governments had committed on the RASRO proposal. Only one country was not in agreement with the objective of such a scheme, but at the same time Offered a contribution to the scheme if it were established and declared its willingness to participate for a trial period for "humanitarian reasons". Five countries were generally in agreement with the scheme and were also willing to agree to a trial period, however, not all these countries offered a quota.

15. Three hundred places are presently available as an initial contribution. However, during the first seven months of 1983 vessels flying the flags those of countries which agreed to a trial rescued a total of 49 persons on the high seas. It should be noted that ships flying flags of the same countries rescued 780 persons during the same period in 1982 and a total of 1076 during the whole of 1982.

16. The High Commissioner hopes that in view of the urgency of the problem it will be possible for Governments to announce additional quotas so that the proposed RASRO scheme can be started on a trial basis.

ANNEX 1 Memorandum concerning a proposed scheme for Rescue At Sea Resettlement Offers (RASRO) to facilitate the resettlement of refugees rescued at sea

1. Since the beginning of the "boat people" phenomenon in South-East Asia, a significant number of these refugees who found themselves in distress at sea had to be rescued by passing, mainly commercial, vessels. During the past several years, some 14,000 Vietnamese refugees have been rescued annually by merchant vessels operating in the South China Sea. In 1982, some 12 per cent of all "boat people" were rescued.

2. The disembarkation of those refugees rescued at sea created a particular problem as the port of call States often demanded resettlement guarantees before they allowed the refugees to disembark in their territories. As a result of these demands, and in consonance with the spirit of international solidarity, most of the flag States provided the required guarantees.

3. A particular difficulty related to countries operating an "open registry" (so-called "flags of convenience") and some other countries which, due to their particular circumstances, would not agree to take persons rescued by their ships for permanent resettlement in their territories, was largely remedied by an arrangement known as DISERO (Disembarkation Resettlement Offers). Under that arrangement, a number of countries agreed to take each year a specific number of this category of person for resettlement in their territories. This was done to encourage countries operating an "open registry" and other States referred to above to rescue refugees in distress at sea. The DISERO system has provided for relatively easy disembarkation of the persons concerned.

4. Thus, while problems of disembarkation were minimized to some extent the basic requirement of a resettlement guarantee by the flag States put an enormous burden on all such States and particularly on small States which operate a large merchant fleet in the region. It may be said that while the interest of the coastal States in this respect is legitimate and evident, the flag States have an equally legitimate interest in benefiting from the principle of international burden-sharing. It should be borne in mind that even if the connection between the refugee and the country of first asylum (i.e. the coastal State) is remote and coincidental, the refugee's connection with the flag State is usually even more remote and coincidental.

5. Alternative approaches to the problem are therefore called for. The following proposal, based on the principal of burden-sharing, would seem to meet the legitimate interest of the flag States, the coastal States and other States which participate in the resettlement of the "boat people", while at the same time facilitating the rescue, resettlement and integration of refugee in distress at sea who have been rescued.

6. The basic premises of the proposal are the following:

a) The flag States would continue to provide the required resettlement guarantee in order to facilitate quick disembarkation of persons rescued by their flagships in the port of call country.

b) Since the operation of the pool will automatically ensure rapid resettlement of the refugees, coastal States may consider waiving or easing the strict time limits for the implementation of durable solutions. It is understood that, as long as the pool operates, UNHCR will endeavour to arrange for the timely removal of the refugees from the territory of coastal States and that any delays in this respect will have no repercussions on subsequent disembarkation of refugees.

c) The traditional flag States in the area and other States which may wish to contribute to solving this problem will provide offers for a resettlement pool to be administered by UNHCR. The pool may be known as Rescue at Sea Resettlement Offers (RASRO), to which States would contribute a specific number of resettlement place on the basis of objective criteria, e.g. (for traditional flag States) a proportion of the average of their actual intake of all cases rescued by their ships in the last three years. The contribution will be decided after consultation with UNHCR. The participating State's intake for resettlement in a given year would be limited to that specific number, irrespective of the number of persons rescued by their ships in that year as long as places are available in the reserve pool. The possibility of financial contributions to facilitate resettlement in third countries is also envisaged.

d) Flag States would be required, nevertheless, to respect their guarantees for all cases rescued after exhausting of the reserve pool in a given year.

e) Flag States not participating in the pool will not benefit from the operation of the pool.

7. The following procedure may be envisaged for the implementation of the proposal:

a) Upon arrival of a vessel with a rescued caseload at a port of call, the flag State provides the resettlement guarantee to facilitate quick disembarkation;

b) UNHCR registers all cases and prepares dossiers with relevant date;

c) Cases of refugees with family or other relevant links with particular countries are submitted by UNHCR to the authorities of such countries for direct admission (i.e. outside the pool);

d) Dossiers of the remaining cases are submitted by UNHCR to participating countries on the basis of criteria indicated by them, as well as on the basis of wishes of refugees, whenever feasible. The number of cases submitted will be based on a percentage of the contribution by each country to the pool;

e) Countries concerned will, after examination of the dossiers and other relevant procedures, advise UNHCR on acceptance of cases submitted under d) above; f) UNHCR will advise participating States on their periodic intake of such refugees well in advance to enable them to make proper arrangements for the reception in their territories. The possibility of staggering intake is also envisaged;

g) If the pool quota is exhausted, the individual flag State guarantee system will apply as at present.

8. It is believed that the introduction of a pool scheme for rescued cases other than those already benefiting from the DISERO scheme would result in a number of advantages not only for the refugees concerned but also for the coastal States, flag States and non-flag States, including traditional resettlement countries. The more important advantages may be summarized as follows:

a) For the refugees, who are the ultimate beneficiaries, the scheme would help to ensure that shipmasters who encounter them in distress at sea will not be deterred from their duty to rescue for fear of well-known adverse consequences flowing from the act of rescue. The automatic guarantee system would facilitate quick disembarkation. Another advantage that may accrue to the refugees from the successful operation of the scheme is that they may have better chance going to a country of resettlement where their individual background would favour quick integration, if possible a country of their own choice.

b) For the coastal States (or port-of-call States), the scheme would guarantee continuation of the present resettlement guarantee system and assure the department through UNHCR of the refugee concerned in a given period of time.

c) For flag States, the scheme would facilitate advance planning for the financial, reception and integration of a given number of refugees as the successful operation of the scheme is likely to ensure that the yearly intake of refugees belonging to this category will not exceed their contribution to the pool. This will also greatly facilitate the planning and implementation of an overall refugee policy. Furthermore, any delays in finding durable solutions will not have adverse repercussions for any subsequent disembarkation, as long a the pool operates. Despite present reluctance by coastal States to waive the scheduled port of call principle, wide international participation in such a pool is likely to lead to relaxation and reconsideration of strict adherence of this principle.

d) For non-flag States, which may accept "boat people" for resettlement, the scheme would provide an opportunity to participants in a programme based on a spirit of international burden-sharing and to receive only fixed number of such cases for whom advance planning for financing, reception and integration would also be facilitated.

9. It is understood that a basic prerequisite for the successful operation of this scheme is the participation of the greatest number of States willing to pool their resources in a spirit of international burden-sharing.

Annexes II, III and IV could not be reproduced here for technical reasons.

GUIDELINES FOR DISEMBARKATION OF REFUGEES

During the past several years, some 14,000 Vietnamese refugees have been rescued annually by merchant vessels operating in the South-China Sea. The majority of the refugees have been disembarked at the next scheduled port of call at relatively little inconvenience to merchant vessels; however, a number of merchant vessels have experienced considerable delays. These guidelines seek to provide a summary of procedures which, if followed, will help to reduce delay in disembarking refugees rescued at sea.

Where are refugees disembarked?

Approximately 50 per cent of all refugees rescued in the South-China Sea are disembarked in Singapore, while others are disembarked in Hong Kong, Japan, Korea, the Philippines, Thailand or other ports outside the region. All countries in South-East Asia require assurances from receiving countries, or from UNHCR, that Vietnamese refugees rescued at sea by passing ships will be disembarked on a temporary basis only and that they will eventually be resettled elsewhere, usually within a period of 90 days.

What are the procedures?

I. When a vessel picks up refugees at sea, she will normally proceed to the first scheduled port of call, informing the ship's agent by radio of the number of refugees the vessel has on board and the circumstances of their rescue.

II. The ship's agent will in turn inform the port and immigration authorities of the presence of refugees on board, requesting permission for the ship to enter the harbour. The ship's agent should also inform the local UNHCR office and the embassy of the country whose flag the ship is flying.

III. Should the vessel be flying the flag of a country in a position to resettle refugees, the embassy of that country will inform the port authorities of its Government's willingness to accept the refugees, normally within 50 days of their disembarkation.

IV. UNHCR will inform the local authorities of UNHCR's willingness to cover care and maintenance expenses while the refugees are in transit after disembarkation.

V. If the vessel flies a flag of open registry, or a flag of a country which cannot reasonably be expected to accept refugees for resettlement, UNHCR will contact a country which has contributed to special pool of resettlement places known as Disembarkation Resettlement Offers (DISERO) to provide a resettlement guarantee.

VI. Should the number of persons on board be large, it may at times be necessary for UNHCR to contact several countries which have contributed to DISERO in order to share the responsibility. In this case, each contributing country will provide a resettlement guarantee for part of the group.

VII. Once the guarantee or guarantees have been conveyed in writing to the local authorities, immigration and UNHCR officials will board the vessel to interview the refugees. Upon completion of the interviews, the refugees will be allowed to disembark.

VIII. Upon disembarkation, each refugee is examined by the local health authority and given medical assistance as necessary.

IX. UNHCR officials will then interview each refugee family to determine its composition, obtain all relevant biographical details, and ascertain whether that family has any relatives or close links with another country. If such links are found to exist, UNHCR contacts the embassy of the country and applies for that family's resettlement. It is estimated that some 30 per cent of those originally guaranteed by the flag State or under DISERO are eventually resettled in other countries on the basis of family reunion or other close links.

What costs are reimbursable?

UNHCR has made arrangements to meet some of the financial costs incurred by shipowners in rescuing refugees at sea. On request, UNHCR will reimburse shipowners for costs which are specially related to the care of refugees rescued at sea, not exceeding US$5 per refugee. Furthermore, UNHCR can reimburse shipowners for expenditures incurred in connection with the disembarkation of refugees, such as transportation expenses after disembarkation, immigration formalities, inoculations, etc. reimbursement of such incidental expenditures should not exceed US$5,000 per ship. Payments can be made only upon presentation of documentary evidence. Payment will only be made by UNHCR provided that such claims are not recoverable from any insurance carried by the ship or from any Protection and Indemnity Club to which the ship/shipowner might belong. Expenses incurred by shipowners as a direct consequence of rescue, e.g. warfare, tug assistance, berthing and unberthing, pilotage, etc., cannot be covered under this programme.

Will there be any delays?

Delays in disembarkation normally do not occur if the required information is transmitted to the next scheduled port of call several days before the ship arrives. If the rescuing ship is flying the flag of a country in a position to resettle refugees, guarantees are provided immediately by the flag State and to delays need be expected. If a ship is flying the flag of a country which cannot reasonably be expected to resettle refugees, UNHCR will make arrangements with countries which have contributed to the disembarkation pool, so that delays will be reduced to a minimum.

Checklist on action to be taken

Requirements differ somewhat from country to country. However, the following information is generally required by all ports before permission for the disembarkation of refugees can be granted.

A. Information to be cabled to the next scheduled port of call

1. Name of the rescuing ship

2. Flag and port of registry of the rescuing ship

3. Name and address of the owner of the ship

4. Owner's agent at the next port

5. Estimated date and time of arrival at the next port

6. Estimated date and time of departure from the next port and destination

7. Number of refugees on board as well as date, time, place and conditions at the time of rescue

8. State of health of refugees on board and whether any are in need of emergency medical treatment upon arrival

B. Information to be typed out and handed over to the port authorities upon arrival

1. The names, dates of birth, nationality, sex and family composition of the persons rescued (by family groups)

2. Whether any of the persons rescued have relatives abroad

C. The above information should be made available to the following:

1. The owner or agent of the rescuing ship

2. The embassy or diplomatic representative of the ship's State

3. The UNHCR office at the next port of call

If the requested information is received at least one or two days before the arrival of the ship at the next scheduled port of call, delays in the disembarkation of refugees will be kept to a minimum.

(In the Guidelines, the cable addresses and telephone numbers of 21 UNHCR offices in Europe, North America, South East Asia and Australia are listed.)