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RESCUE at SEA, STOWAWAYS and MARITIME INTERCEPTION Selected Reference Materials

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RESCUE at SEA, STOWAWAYS and MARITIME INTERCEPTION Selected Reference Materials RESCUE AT SEA, STOWAWAYS AND MARITIME INTERCEPTION Selected Reference Materials 2nd Edition – December 2011 Cover Photo: ©Alixandra Fazzina/NOOR, Nansen Refugee Award Winner 2010, Shimbiro, Somalia, November 2007 1 Rescue at Sea, Stowaways and Maritime Interception Selected Reference Materials 2nd Edition – December 2011 Division of International Protection (DIP) UNHCR Geneva 2 Acknowledgments: The second edition of this binder has been prepared with the assistance of Ms. Lena Haap, intern with the Asylum/Migration Unit, DIP. UNHCR also wishes to thank colleagues from the International Maritime Organisation (IMO), the International Committee of the Red Cross (ICRC) and the UN Division for Ocean Affairs and Law of the Sea (DOALS) for their very helpful comments and assistance. 3 INTRODUCTION The phenomenon of people taking to the seas in search of safety, refuge, or simply better economic conditions is not new. The mass exodus from Vietnam throughout the 1980s was followed in the 1990s by large-scale departures from Albania, Cuba and Haiti. More recently, international attention has focused on the movement of Somalis and Ethiopians across the Gulf of Aden, increasing numbers of sea arrivals in Australia, and the outflow of people from North Africa to Europe in the aftermath of the Libya crisis. But beyond these situations, irregular maritime movements are a reality in all regions of the world and raise a number of specific protection challenges, notably in the context of rescue at sea, stowaway incidents and maritime interception. Most irregular maritime movements today are “mixed movements”, involving people with various profiles and needs, as opposed to being primarily refugee outflows. However, almost all of these movements include at least some refugees, asylum-seekers or other people of concern to UNHCR. Rescue at Sea The vessels used for irregular maritime movements are frequently overcrowded, un- seaworthy and not commanded by professional seamen. Distress at sea situations are common, raising grave humanitarian concerns for those involved. Search and rescue operations, disembarkation, processing and the identification of solutions for those rescued are re-occurring challenges for States, international organizations, and the shipping industry. Recent amendments to the International Convention for the Safety of Life at Sea (SOLAS Convention) and the International Convention on Maritime Search and Rescue (SAR Convention), as well as associated International Maritime Organization (IMO) Guidelines, underline the duty of all State Parties to co-ordinate and co-operate in rescue at sea operations.1 However a number of key challenges remain, especially when search and rescue (SAR) operations involve people without proper travel documentation. These challenges include, fundamentally, ensuring the safety of human life at sea, the timely identification of a place of safety for disembarkation, and providing access to asylum and other appropriate procedures, and as well as outcomes for all rescued persons depending on their profiles and needs. Stowaways Refugees and asylum-seekers also travel as stowaways.2 Once discovered, it can be difficult to obtain permission from coastal States for their disembarkation, forcing shipmasters to maintain them on board for prolonged periods of time, often under difficult conditions. When selecting a place of disembarkation, it is important to ensure that refugees and asylum-seekers will be referred to appropriate follow-up processes where their international protection needs can be assessed and addressed. 1 1974 International Convention for the Safety of Life at Sea (SOLAS), entered into force 25 May 1980, as amended, Regulation 33, 1-1; 1979 International Convention on Maritime Search and Rescue (SAR), entered into force 25 March 1980, as amended, Chapter 3.1.9; IMO Resolution MSC.167(78), Annex 34, Guidelines on the Treatment of Persons Rescued at Sea, 2004; IMO Circular FAL.3/Circ. 194, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, 2009, paragraph 2.3. 2 A stowaway is a person who secretly boards a vehicle, such as an aircraft, bus, ship, cargo truck or train, to travel without paying. 4 Maritime Interception States are increasingly taking measures to stop or prevent the arrival of vessels carrying undocumented people through maritime interception operations. Interception operations, particularly those carried out on the high seas or in the territorial waters of other States, do not always include sufficient protection safeguards to ensure that the principle of non- refoulement3 is upheld. This raises concerns that refugees and other people in need of international protection may be returned to situations where they are at risk of persecution or other serious harm. ****** The involvement of refugees and other persons of concern to UNHCR in mixed maritime movements can implicate different areas of international law, including the international law of the sea, international refugee law, international human rights law, international humanitarian law and international criminal law. This binder compiles selected provisions from each of these bodies of law to assist governments, UNHCR colleagues and other interested professionals to identify the legal framework applicable to refugees and asylum- seekers travelling irregularly by sea. The binder is not exhaustive, and only key provisions have been chosen. In addition to international law, the binder includes selected guidelines, recommendations, submissions, advisory opinions and policy papers issued by UNHCR and the International Maritime Organization (IMO). These materials provide further guidance on how relevant standards may be operationalized in practice. The binder also contains selected materials from a number of meetings and conferences convened by UNHCR on these issues. For each document the United Nations Treaty Series reference has been included, where applicable. In addition, to the extent possible a weblink has been provided to enable easy access to the complete text. For most documents, reference is provided to an official UN website. Where this was not available, another website has been indicated. Although such external websites have been carefully chosen, their content and quality cannot be guaranteed by UNHCR. Some modifications have been made with regard to the format of the original documents for consistency reasons. UNHCR is grateful for any comments on the binder or recommendations for the inclusion of further material in the next edition. All comments may be sent to the Asylum/Migration Unit at [email protected]. Anja Klug and Claire Inder Asylum/Migration Unit Division of International Protection (DIP) UNHCR Geneva December 2011 3 1951 Convention relating to the Status of Refugees, entered into force 22 April 1954, Article 33. 5 TABLE OF CONTENTS A. INTERNATIONAL LAW OF THE SEA ....................................................................... 10 I. INTERNATIONAL INSTRUMENTS.......................................................................................... 12 1. United Nations Convention on the Law of the Sea (UNCLOS).................................... 12 2. International Convention on Salvage........................................................................... 23 3. International Convention on Maritime Search and Rescue (SAR) .............................. 25 4. International Convention for the Safety of Life at Sea (SOLAS).................................. 30 5. Convention on Facilitation of International Maritime Traffic (FAL).......................... 34 6. Convention on the High Seas ....................................................................................... 45 II. IMO GUIDELINES ............................................................................................................. 46 1. Revised Guidelines on the Prevention of Access by Stowaways and the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases........................... 46 2. Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea................................................................................................................................ 61 3. Guidelines on the Treatment of Persons Rescued at Sea............................................. 63 4. Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea........................................................................................... 75 B. INTERNATIONAL REFUGEE LAW ............................................................................ 82 I. INTERNATIONAL INSTRUMENTS.......................................................................................... 84 1. 1951 Convention Relating to the Status of Refugees and its 1967 Protocol................ 84 II. CONCLUSIONS ON INTERNATIONAL PROTECTION ADOPTED BY THE UNHCR EXECUTIVE COMMITTEE (EXCOM)........................................................................................................... 86 1. Asylum-Seekers at Sea/Rescue at Sea ......................................................................... 86 a.) No. 97 (LIV) Conclusion on Protection Safeguards in Interception Measures (2003) ........................................................................................................................... 86 b.) No. 38 (XXXVI) Rescue of Asylum-Seekers in Distress at Sea (1985) ................ 86 c.) No. 31 (XXXIV)
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