Presentation by Ms. Erika Feller, Director, Department of International Protection, UNHCR, at the International Shipping Federation Manning and Training Conference, The British Library, London: "Asylum-seekers, refugees and Rescue-at-Sea"
My thanks to the International Shipping Federation for affording me this opportunity to address your Manning and Training Conference and to share with you information relating to UNHCR's work with asylum-seekers and refugees, in particular those whose flight from persecution leads them to take to the seas.
The Office of the High Commissioner for Refugees is the agency of the United Nations, which is responsible for the provision of protection and assistance to refugees and for seeking durable solutions to their plight. Our work is regulated by numerous legal instruments, the most important of which are the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol, where the globally accepted definition of a refugee is to be found.
The essential elements of this definition identify a refugee as:
- any person outside their country of nationality or habitual residence
- owing to well-founded fear of persecution for reasons of
- membership of a particular social group or
- political opinion
- and unable or unwilling, due to such fear, to return
Refugees are not willing travellers but persons forced from their homes due to fear, often in the face of appalling violence and brutality. The related term asylum-seeker is commonly used to refer to those persons who have sought recognition as refugees but whose claims have yet to be conclusively determined.
At the end of 2001 UNHCR figures indicated a total of 19.8 persons world-wide of concern to our Office. This figure includes approximately 12 million refugees, as well as internally displaced persons who remain within their own countries and former refugees who have availed of the option to return home and with whom UNHCR continues to work in order to consolidate their reintegration, often a daunting task after lengthy periods spent in exile.
The environment within which we work is complex and challenging. The protection needs of asylum-seekers and refugees are increasingly intermingled with broader migration concerns. Governments, alarmed by what they perceive to be unprecedented and potentially uncontrollable levels of irregular migration, adopt ever more restrictive measures to limit access to their territories and safeguard their national interests. They have a wide range of tools at their disposal, including carrier sanctions, interception, mandatory detention and harsh penal measures. Most of these measures are primarily intended to combat human trafficking and migrant smuggling but they impact equally on asylum-seekers and refugees, creating new challenges for UNHCR. Persons of our concern are in effect criminalised by association with an illegal trade. They are vilified in the media and public support for their plight dwindles. In short the environment within which we work is not always a receptive and flexible one.
In response to the numerous challenges confronting refugee protection for States, as well as for the Office of the United Nations High Commissioner for Refugees, and on the occasion of the 50th anniversary of the Statute of the Office and of the 1951 Convention, UNHCR set in train, in December 2000, the Global Consultations on International Protection. The purpose was to provoke both reflection and action to revitalise the 1951 Convention and to better equip States to address the challenges in a spirit of dialogue and co-operation. The product of this consultative process is the Agenda for Protection. It reflects a wide cross-section of concerns and recommendations of States, intergovernmental organisations, non-governmental organisations (NGOs), as well as refugees themselves. The Agenda focuses on suggested activities, which would strengthen international protection of asylum-seekers and refugees and improve implementation of the 1951 Convention and its 1967 Protocol. These activities flow from the Declaration affirming the importance of the 1951 Convention, which was adopted unanimously by States Parties at a Ministerial meeting held in Geneva on 12-13 December 2001.
The day to day work of UNHCR is carried our on a number of different levels. We are perhaps best know for our relief and assistance activities, overseeing the provision of food, shelter and basic services to millions of refugees in camps around the world. This is by far however, not the full extent of what we do. Work in the field is fundamentally protection focused, directed at assuring refugees access and enjoy their rights, or remedying breaches thereof. A good proportion of our time and energy is also dedicated to the development of standards and practices capable of responding to the multiple challenges thrown up by the flight of refugees. This is an area of work that demands close collaboration with governments and with actors such as you within the maritime community.
Our association with maritime issues goes back to the very foundation of UNHCR. The 1951 Convention contains a specific reference to the situation of refugee seamen and work initiated by our predecessor, the International Refugee Organisation, in 1950 and continued by UNHCR in close collaboration with the International Labour Office (ILO), and a number of European maritime nations led to the adoption of the Hague Agreement Relating to Refugee Seamen in 1957. This agreement aims to address the specific documentation needs of refugees serving on board ships. Following on from this successful collaboration, UNHCR subsequently contributed to ILO's work on Convention 108 on Seafarer's Identity Documents. In the wake of heightened security concerns after the terrorist attacks of 11th September last year, the issue of seafarer's identity documents has once again become a matter of concern and UNHCR has been called upon to make its contribution to the debate, a subject that Mr. Smefjell will be addressing in detail in his comments.
On a more operational level there a number of examples of large scale refugee movements by sea, in response to which UNHCR and the shipping industry have forged close working relationships resulting in many lives being saved. I am thinking in particular of the Vietnamese boat-people crisis in the 1980s and similar events in the Caribbean in the mid-1990s when large numbers of people fled Haiti and Cuba.
The Vietnamese crisis is perhaps the experience that best exemplifies what can be achieved when international organisations, governments and the shipping industry pull together to find workable solutions to a humanitarian crisis. At one point, at the height of the outflow, asylum was in serious jeopardy as States in the region, faced by considerable numbers of arrivals, started pushing boats back out to sea. Ships in the vicinity, fearful of the extra delays and costs, started to turn a blind eye to their distress, and pirate attacks shot up. UNHCR put considerable effort into devising approaches designed firstly to underpin rescue at sea efforts and secondly to ensure safer waters, and availability of asylum. Those efforts, did, eventually achieve their goals. Numerous rescues were undertaken by commercial vessels that often diverted from their course to come to the aid of those in peril. The action of these shipmasters, supported in turn by the shipowners, was a commendable response, upholding the age-old maritime tradition of rescue. UNHCR worked together with governments, in support of the shipping industry and operated a reimbursement scheme to alleviate the financial burden of rescue. A crucial aspect of the effective functioning of this scheme was the corresponding commitment by a number of countries to resettle the people rescued. UNHCR negotiated with States several successive resettlement arrangements which involved joint pooling of available places by States which participated in the respective schemes. This underpinned the possibility of rapid disembarkation within the region.
When the images of the Vietnamese crisis, and the later Caribbean crisis, disappeared from our television screens, so too did public awareness of the ongoing challenge of rescue-at-sea. Subsequent refugees crises throughout the 1990 by and large took place on dry land; the flight of the Kurds from Iraq during the Gulf crisis; the massive movements of refugees in the Great Lakes region of Africa as a result of the genocide in Rwanda; and more recently, the drama of Kosovo. By comparison the plight of asylum-seekers and refugees at sea was considered by many to be a minor problem. Not so by UNHCR and by the shipping industry who continued to be acutely aware of the issue and its continued occurrence in many regions around the world - Africans desperately trying to reach Yemen or to make the illusively short journey across the Strait of Gibraltar, sometimes even resorting to swimming in spite of the dangers; similar scenarios in the Adriatic and in the waters between Indonesia and Australia.
Rescue returned to the headlines in dramatic fashion with the Tampa incident in August of last year. I will not repeat the details of that incident which I have no doubt are all too familiar to many of you here. Suffice it to say that it was played out in a very different environment to that which characterised the Vietnamese crisis. An environment characterised by the kind of restrictive attitudes that I have just outlined to you.
Rescue is first and foremost an issue of maritime law and practice. However, under certain circumstances it also draws in significant questions of refugee law, human rights law and asylum policies globally. For you in the maritime industry, it is a pressing practical concern affecting the smooth functioning of your business and the security of your vessels and their crew. From UNHCR's perspective, rescue is a small, but important part of a wider set of challenges stemming from the intersection of asylum and migration issues. It is a manifestation of the larger problem of asylum-seekers and refugees moving on, from and through countries where they might have stopped their journey, often choosing consciously the illegal route and fuelling a growing criminal trade in human beings. In this sense, from the perspective of States, there are important policy aspects to the development and implementation of adequate responses, which go beyond maritime concerns and even beyond asylum concerns.
Against this background, and as part of its Global Consultations process, UNHCR convened an Expert Roundtable in Lisbon last March to examine the protection of asylum-seekers and refugees in the context of rescue-at-sea. Thirty-three participants from governments, the shipping industry, international organisations, NGOs and academia took part in the two-day session. Colleagues from IMO, the International Chamber of Shipping and from seafarers' trade unions were also there. Participants broadly agreed that rescue-at-sea is a humanitarian act, with the alleviation of distress the absolute imperative, regardless of who the people are and how they came to be where they are. It was recognised that Ships' masters are obliged, by maritime law and by humanitarian tradition to come to the assistance of persons in distress at sea and deliver them to a place of safety. In determining where to land the rescued persons, the professional judgement of masters should be respected and they have a right to anticipate the full support of coastal States in completing rescue missions. Participants also acknowledged that a commercial vessel is not the place to determine the character or status of those rescued, nor should it be used as a floating detention centre. Processing and status determination is best done on dry land and requires the co-operation of States to ensure access to fair and efficient procedures for those who claim asylum. Emphasis was more generally placed on the need for States to ensure that any measures to combat smuggling or trafficking in persons do not undermine the international refugee protection regime, or for that matter the international search and rescue regime. International burden-sharing arrangements that in involve co-operation in processing asylum applications and/or providing durable solutions including resettlement, can help to resolve complex rescue scenarios.
The conclusions of the roundtable enjoyed the broad support of all participants and have been equally well received in a number of other fora where UNHCR has put them forward as a basis for discussion in the search for solutions. It is clear from the outcome of the Lisbon meeting that action is required at a number of different levels, placing responsibilities not only on shipmasters and owners whose vessels are directly engaged in rescue operations, but also on States who are obliged to co-operate in the disembarkation and follow up steps. For its part UNHCR is committed to moving forwards in the search for practical solutions and we see the outcome of the Lisbon meeting as the basis for consolidation of shared understandings between all actors involved. We have incorporated the Lisbon conclusions into ongoing discussions in an inter-agency UN review group, where we are working together with IMO, the Office of Legal Affairs, the Office of the High Commissioner for Human Rights and the Office of Drug Control and Crime Prevention. More recently we have made the Lisbon conclusions the central focus of our contribution to the informal meeting on to review safety measures and procedures for the treatment of persons rescued at sea, which just concluded in Norrköping last Friday, under the auspices of the Swedish Maritime Administration. UNHCR will be pursuing this discussion through the relevant Committees of IMO and other suitable fora.
As part of the broader debate on irregular migration, secondary movement and other related issues, rescue is one of the important topics that UNHCR pursues in the multi-faceted discussions that we undertake with States. Our work to promote greater sensitivity to refugee protection within migration management programmes; to foster a more equitable approach to burden and responsibility sharing; and to focus more attention on the needs of countries of origin, first countries of asylum and countries of transit are all elements in what we hope will, inter alia, become a more even-handed approach to the rescue at sea dilemmas.
I would like to take a couple of minutes to focus on a specific consequence of the Tampa incident. It prompted a flurry of correspondence from the shipping industry directed to UNHCR. Insurance companies, shipowners and trade unions alike have all urged UNHCR to take steps to safeguard the integrity of the global search and rescue regime, concerned to avert the negative repercussions of the Tampa. While sharing this concern UNHCR has consistently pointed out that that this is principally within the power of States and not of UN agencies. UNHCR for its part has done everything possible to promote positive messages on the importance of rescue. On World Refugee Day, 20 June 2002, the High Commissioner, Mr Rudd Lubbers, participated in an award ceremony which saw the owners, captain and crew of the MV Tampa receive the Nansen refugee award at a ceremony in Oslo.
Finally, let me highlight one other important issue of common concern, that of stowaways. Though hard data on numbers is difficult to come by, you in the shipping industry are acutely aware of the challenges posed to commercial shipping. UNHCR's interest in stowaways is motivated for the same reasons as our interest in rescue, the fact that some of these persons are asylum-seekers and refugees and therefore of concern to us. Since the 1957 Convention Relating to Stowaways has yet to come into force, the main instrument addressing this issue continues to be IMO's Guidelines on the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases. Since the adoption of the guidelines in 1997, UNHCR has maintained a close dialogue with IMO, participating in discussions focused on the possibility of incorporating stowaway provisions in the 1965 Convention on Facilitation of International Maritime Traffic. UNHCR is hopeful that progress made at the 29th FAL session in January of this year will receive the proactive support of States and will lead to the implementation of a more humane approach to resolution of stowaway cases. Clearly what is needed is a solution that looks not only at the responsibility of the industry but also at the responsibility of States, in full recognition of their obligations under international maritime law and practice, as well as international human rights law and in certain instances, international refugee law. Only with such a comprehensive approach will tragedies such as the recently reported death by suffocation of a Colombian stowaway be avoided.
Thank you once again for this opportunity to share with you UNHCR's view on issues of our common concern. We value the important contribution of the shipping industry to the search for solutions and look forward to continuing our already well established supportive collaboration.