Note on Stowaway Asylum-Seekers

EC/SCP/51

I. INTRODUCTION

1. The problem posed by stowaway asylum-seekers has been a recurring protection concern for the international community over the last decade. As with other asylum-seekers, the immediate task with respect to stowaway asylum-seekers consists in providing initial protection through their admission into the territory of a State where their refugee status can be determined.

2. Obtaining agreement by States as to where a stowaway asylum-Seeker should disembark is, however, no simple task. A typical stowaway incident involving asylum-seekers will concern several States, including the State of embarkation, the Flag State of the ship involved, the first and subsequent Port States visited by the ship following discovery of the stowaway, and any other State where the individual may have significant contacts. Some States hold that Flag States have the ultimate duty to accept responsibility for stowaway asylum-seekers; others contend that this duty lies with the State where the first port of call is situated; yet other States favour ad hoc solutions depending upon the particular circumstances of each incident.

3. As a result of disagreement between States over which of them is responsible for admitting the stowaway asylum-seeker, so-called orbit situations are created. In several such situations, stowaway asylum-seekers have been confined for many weeks and even months on board ships travelling from one port to another. In one instance, the individual concerned was kept on board for well over a year. This explains why incidents involving stowaway asylum-seekers, although limited in overall numbers, constitute a major protection concern.

4. Subsequent paragraphs of this Note summarize relevant provisions of international law and provide some suggestions for future treatment of stowaway asylum-seekers.

II. INTERNATIONAL LAW AND THE TREATMENT OF STOWAWAY ASYLUM-SEEKERS

International maritime law

5. International maritime law provides no definite principles governing the protection of stowaway asylum-seekers. Of relevance is the International Convention relating to Stowaways which was adopted by the Diplomatic Conference on Maritime Law at its session in 1957. Over the past thirty years, however, the Convention has only attracted nine out of the ten ratifications needed to bring it into force. Although not yet a source of legal obligation, the Convention, is important nevertheless, as evidence of a measure of States' agreement on relevant principles. Thus it offers a detailed framework for allocating the responsibility for stowaways among States and recognizes expressly the special dangers faced by stowaways fleeing persecution.

6. The Convention provides the following definition of the term "stowaway":

"stowaway means a person who, at any port or place in the vicinity thereof, secretes himself in a ship without the consent of the ship owner or the Master or any other person in charge of the ship and who is on board after the ship has left that port or place".

7. The Convention clearly defines the respective duties of the Master of the ship and the Port State with regard to stowaways. Article 2 states, in part:

"If on a voyage of a ship registered in or bearing the flag of a contracting State a stowaway is found in a port or at sea, the Master of the ship may, subject to the provisions of paragraph (3), deliver the stowaway to the appropriate authority at the first port in a contracting State at which the ship calls after the stowaway is found, and at which he considers that the stowaway will be dealt with in accordance with the provisions of this Convention."

Paragraph 3 of the same article binds the Port State to accepting such stowaways, unless they are under "a previous individual order of deportation or prohibition from entry.... ". These provisions seek to ensure that stowaways disembark as soon as possible after they are discovered.

8. The Convention also expresses special concern for stowaways who are asylum-seekers. Paragraph 2 of Article 5 requires the ship's Master and authorities at the port of embarkation 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." Paragraph 3 of the same Article further states:

"The provisions of this Convention shall not in any way affect the power or obligation of a contracting State to grant political asylum."

Read together, these clauses acknowledge the particular situation of stowaways who are also asylum-seekers and they underline that, in relation to these persons, States have broader obligations (including non-refoulement) under general international law.

9. Under the Convention, stowaways remain the responsibility of the Port State only temporarily. The Convention gives the Port State quite specific instructions concerning where to send stowaways once they have landed. Article 3 directs the Port State to send the stowaways, in descending order of preference, either to their State of nationality, to the State of embarkation, or to the State of the last port which was visited prior to the stowaway being discovered. If stowaways cannot return to any of these States, the Flag State ultimately must accept responsibility for them. The Convention thus places the residual responsibility for the admission of stowaways with the Flag State.

10. General principles of maritime law support the proposition, just as does the Stowaway Convention, that a Port State cannot disclaim all responsibility for stowaways. On the high seas, a Flag State has exclusive jurisdiction over births, contracts, crimes and also, presumably, over the illegal passage of stowaways. The Flag State also retains predominant jurisdictional authority while the vessel makes innocent passage through foreign territorial waters. The Flag State's jurisdictional power diminishes, however, when the ship enters a foreign port. Coastal States enjoy absolute jurisdiction over their territory, including ports and harbours. Foreign ships in port cannot grant asylum on board to local or alien fugitives. Local authorities also may board and arrest alien fugitives and extradite them to a requesting State to stand trial. In other words, no principle of extra-territoriality applies in this situation and it may accordingly be argued that the stowaway asylum-seeker should be considered, for the purposes of international protection, as present on the territory of the Port State. The jurisdictional power which Port States are able to exercise over foreign merchant vessels further strengthens the argument that stowaways have entered the Port State's territory.

11. The argument that the responsibility for stowaway asylum-seekers must rest with the Flag State is weakened when one takes into account the pervasive use of flags of open registry, popularly known as flags of convenience. Over one-quarter of all ocean-going merchant ships sail under such flags. Consistently enforcing Flag State responsibility would impose a disproportionate burden on a very limited number of countries. Similarly, it should be borne in mind, that although the connection between the stowaway asylum-seeker and the State of the first port of call may be remote and coincidental, that person's link with the Flag State is usually even more remote and quite fortuitous. The recognition of this fact must be observed in the context of rescue of asylum-seekers in distress at sea in the South-East Asian waters, where States established the Disembarkation Resettlement Offers (DISERO) scheme to facilitate the quick disembarkation of asylum-seekers rescued in distress at sea by ships sailing under flags of open registry.

Human rights principles

12. The existing body of fundamental human rights principles provides further guidance for dealing with situations involving stowaway asylum-seekers. These principles apply equally to nationals and non-nationals, refugees and asylum-seekers. Thus it is that the treatment of stowaway asylum-seekers and the search for solutions to their problems must respect the fundamental tenets of human rights law including the right to life, liberty and security of person, the right to seek and enjoy asylum from persecution and the right not to be subjected to cruel or degrading treatment.

13. As noted in paragraph 3 above, stowaway asylum-seekers often have to spend a considerable period of time on board the ship. Refusal to allow disembarkation might well in these instances amount to cruel and degrading treatment. This clearly is a further argument in favour of disembarkation as early as possible.

Refugee law

14. Refugee law contains principles of more specific relevance to the situation of stowaway asylum-seekers. The principle of non-refoulement, in particular, limits the discretion of States to reject stowaway asylum-seekers. The 1951 United Nations Convention Relating to the Status of Refugees states in Article 33, paragraph 1:

"No contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontier of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (emphasis added)

15. The principle of non-refoulement is now part of customary international law, binding upon all States independently of specific assent. Rejection at the frontier is increasingly recognized as constituting refoulement where it leads to expelling or returning persons to the frontiers of a territory where their life or freedom would be threatened. The 1967 United Nations Declaration on Territorial Asylum states in Article 3, paragraph 1:

"No person [who is a refugee] shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution."

16. The Declaration only permits States to make exceptions to this rule "for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons." The international community has restated and affirmed the principle on several occasions, including in the Bangkok Principles Concerning the Treatment of Refugees adopted by the Asian-African Legal Consultative Committee in 1966, the 1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa, the 1984 Cartagena Declaration and in various conclusions of the Executive Committee.

17. If the Flag State disclaims any responsibility for the stowaway and the ship's next port of call is in a State where his/her life or freedom would be threatened on account of race, religion, nationality, membership of a social group or political opinion, the practical effect of disclaiming responsibility and refusing admission is refoulement. The problem of refoulement will become increasingly acute when a Flag State continues to disclaim responsibility for the stowaway asylum-seeker and, at the same time, where Port States at which the stowaway asylum-seeker might safely be landed, refuse to allow disembarkation. Where disembarkation is the only alternative to refoulement, both Port and Flag States have an unequivocal duty to prevent the latter from occurring. How best this can be achieved will depend upon the circumstances, but more often than not, it will be through disembarkation at the first port of call.

18. The unlawful entry or presence of stowaways within the Port State should not affect the merit of their claim to asylum. The 1951 Convention relating to the Status of Refugees states in Article 31:

"The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or liberty was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

19. The Executive Committee has specifically taken a similar position on at least two separate occasions. Conclusion No. 15(XXX) concerning Refugees without an Asylum Country observes in paragraph (h)(vi):

"Agreements providing for the return by States of persons who have entered their territory from another contracting State in an unlawful manner should be applied in respect of asylum-seekers with due regard to their special situation."

20. In the context of large-scale influxes, Conclusion No. 22 (XXXII) states in paragraph II(B)(2)(a) that asylum-seekers provided with temporary refuge

"should not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful.... "

21. The safety of asylum-seekers at sea and their need for asylum has been a recurring concern of the Executive Committee itself. In its conclusion on International Protection adopted at its twenty-seventh session, the Executive Committee appealed to States "to grant first asylum to refugees and displaced persons rescued at sea or who had come directly by sea". More recently, the Executive Committee has adopted conclusions No. 23 (XXXII), No. 26 (XXXIII) and No. 31 (XXXIV) designed to reinforce "the fundamental character of the obligation to rescue asylum-seekers in distress at sea". The stress has been on the need to rescue, to disembark and to admit, at least on a temporary basis, as well as to provide settlement opportunities in a spirit of international solidarity and burden-sharing.

III. CONCLUSIONS

22. Fundamental principles of human rights apply equally to nationals and non-nationals, refugees and asylum-seekers. No distinction is allowed with respect to such human rights as the right to life, integrity of the person and human dignity. Concern for the well-being of individuals and the need to ensure that they are not subjected to cruel or degrading treatment should guide States in their treatment of stowaway asylum-seekers.

23. A Working Group established by the Executive Committee in 1982 to consider problems relating to the rescue at sea also addressed the issue of stowaway asylum-seekers. It agreed on a set of guidelines for the treatment of stowaways. These guidelines have not, to date, been given any wider consideration. However, based on the foregoing paragraphs of this Note, these guidelines have much to commend them and are put forward here by way of conclusion to this Note.

(i) Like other asylum-seekers, the stowaway asylum-seeker must be protected by the principle of non-refoulement against forcible return to his country of origin;

(ii) While it must be recognized that there are at present no Positive international rules dealing specifically with stowaway asylum-seekers defining the respective responsibilities of the States involved, such asylum-seekers should be given the special consideration that their situation demands;

(iii) They should, whenever possible, be allowed to disembark at the next port of call and given the opportunity of having their asylum request examined under established national procedures;

(iv) If necessary, UNHCR should be requested to assist in finding a durable solution.