Indian Council of World Affairs

Many individuals embark on dangerous sea journeys as their last resort to seek refuge and opportunity beyond borders. This phenomenon is majorly observed in the Mediterranean migration corridors. For instance, the latest data from the International Organization of Migration (IOM) reveals that out of the 42,606 refugees and migrants who arrived in Europe this year, 41,076 used the Mediterranean Sea as their route, with Italy, Greece and Spain being the main destinations. The primary nations of origin for these migrants were Mali, Senegal and Bangladesh. [i]

The protection of migrants and asylum seekers at sea is governed by various international laws, aimed at ensuring their safety and well-being. Actors (both state and non-state actors) involved in maritime operations are entrusted with the responsibility of upholding these legal obligations and providing humane treatment to those in distress. However, despite the existence of such legal frameworks, there are often gaps in their implementation, leading to instances where these individuals' rights are compromised. In September 2023, the Tunisian National Guard collectively expelled over 100 migrants and asylum seekers hailing from different African nations, including children, to the border with Algeria. After intercepting the ship at sea, the Algerian Coast Guard sent them back to Tunisia.[ii] Such incidents highlight the urgent need to strengthen the existing legal safeguards in maritime migration, as they underscore the complexities and human rights violations associated with such actions. 

This paper examines the legal frameworks aimed at protecting migrants and refugees at sea, detailing the roles, responsibilities and operational considerations of mandated actors. Through a comprehensive analysis, the study delves into the provisions aimed at upholding the rights and dignity of sea migrants and refugees amidst the multifaceted challenges of maritime movement. The research seeks to contribute to understanding the intricacies involved and the obligation of collective action in addressing the protection needs of vulnerable populations traversing the world's oceans. 

Understanding the Dynamics and Challenges of Sea Movement for Migrants and Refugees

Movement via sea is a critical phenomenon. In recognising the realities of sea migration, it is crucial to understand a few key terms. “Migrants” refer to individuals who temporarily or permanently relocate from their usual residence, domestically or internationally, for various reasons. This broad category, though it lacks a specific definition in international law, encompasses migrant workers and international students.[iii] The 1951 Refugee Convention clearly defines “refugees” as those who flee their country of origin due to a well-founded fear of persecution based on factors like race, religion or political opinion and are unable or unwilling to return.[iv]

Sea migrants and refugees come from diverse backgrounds, including those fleeing conflict, seeking better economic opportunities and facing environmental crises. They find themselves aboard vessels in search of safety and opportunity across international waters. 

Despite their diverse backgrounds and distinct needs, sea migrants and refugees experience perilous journey fraught with risks and uncertainties. The people on board face grave dangers at every stage of their voyage. They may be using unseaworthy vessels, navigate with inadequate supplies and suffer exploitation and abuse at the hands of smugglers and traffickers. Also, there is the constant risk of drowning at sea. It is estimated that at least 25,313 people have died in the Mediterranean Sea since 2014.[v]

Despite these dangers, the pull towards sea migration persists. According to data compiled by the United Nations High Commissioner for Refugees (UNHCR) and the International Maritime Organization (IMO), approximately 144,200 attempts by migrants and refugees to cross the Central Mediterranean Sea from Algeria, Libya and Tunisia to Europe were documented in 2022. This figure reflects a 33% rise compared to recorded departures in 2021 and represents the highest number of attempts since 2017.[vi]

In recognition of this reality, there exists international legal frameworks aimed at safeguarding the rights and well-being of these individuals at sea. These laws mandate various actors, including states, international organisations and humanitarian agencies, to intervene and provide assistance to those in distress at sea. 

The Legal Protection Available for the People in Seas 

The protection of migrants and refugees at sea is governed by a complex interplay of international human rights laws, maritime laws and humanitarian law. These legal frameworks aim to ensure the safety, security and dignity of those undertaking dangerous sea journeys in search of refuge and opportunity. 

At the core of their legal protection are international human rights laws, like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).[vii] The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families prohibits collective expulsion by the states, emphasizing that each case of expulsion shall be examined and decided individually.[viii]

For refugees specifically, international humanitarian law, including the 1951 Refugee Convention and its 1967 Protocol[ix], offers additional protections. These legal instruments define the rights and obligations of states concerning refugees, including the principle of non-refoulement, which prohibits states from returning refugees to territories where their life or freedom would be at risk.[x] Additionally, international humanitarian law mandates the provision of humanitarian assistance and protection to refugees, including access to legal services.[xi] These laws mandate the protection of personal information regarding asylum-seekers or refugees to prevent potential harm. [xii]

International maritime laws impose clear obligations on shipmasters to render assistance to those in distress at sea. The International Convention for the Safety of Life at Sea (SOLAS) mandates its shipmasters to assist individuals in distress regardless of their nationality, status, or the circumstances in which they are found.[xiii] The UNCLOS requires the flag state of any vessel to ensure that the master renders assistance “in so far as he can do so without serious danger to the ship, the crew, or the passengers.”[xiv] The International Convention on Maritime Search and Rescue (SAR) requires states to establish SAR regions to coordinate the conduct of SAR operations.[xv]

The Protocol against the Smuggling of Migrants by Land, Sea and Air[xvi], an integral part of the United Nations Convention against Transnational Organized Crime (UNTOC), specifically addresses the criminal aspect of migrant smuggling. The protocol obligates States Parties to take appropriate measures to safeguard smuggled migrants and provide protection against violence, with special consideration for the needs of women and children.[xvii] Importantly, it recognises that asylum seekers may resort to smuggling means to cross borders[xviii] and emphasises that individuals should not be penalised for seeking asylum through such channels[xix]. These provisions are aligned with the principles of the 1951 Refugee Convention and its Protocol, particularly regarding the principle of non-refoulement, which safeguards the rights of asylum-seekers and refugees. 

Overall, the implementation and enforcement of these legal frameworks require the collaboration and cooperation of various actors, including states, international organisations and humanitarian agencies. States bear primary responsibility for upholding the rights and well-being of sea migrants and refugees within their jurisdiction, while civil society organisations provide support and assistance, including search and rescue operations, humanitarian aid and protection services. 

Which Entities Provide Assistance to the Distressed Persons at Sea? 

States, both as flag states of vessels and coastal states, play a crucial role in ensuring the safety and well-being of individuals in distress at sea. Flag states are required to exercise jurisdiction and control over ships flying their flags in administrative, technical and social matters, consistent with their international obligations under maritime, refugee and human rights law.[xx] Coastal states are obligated to promote the establishment, operation and maintenance of effective search and rescue services.[xxi] These states must ensure necessary arrangements for distress communication and coordination in their respective areas of responsibility.[xxii] States are required to provide assistance to any person in distress at sea, regardless of their nationality or status, and ensure their initial medical or other needs are met, delivering them to a place of safety.[xxiii] On December 2023, the Indian authorities at Andaman and Nicobar Islands rescued 142 Rohingya refugees whose boat was intercepted near Shaheed Dweep. The refugees, including 47 women and 59 minors, had left Bangladesh, aiming for Indonesia. After the boat developed technical issues, it was towed to Shaheed Dweep, and the refugees were taken to Port Blair for temporary shelter and care by local authorities.[xxiv]

Shipmasters, as representatives of vessels, bear significant responsibilities in assisting individuals in distress at sea. Shipmasters are mandated to render assistance to any person found at sea in danger of being lost and to proceed with all possible speed to the rescue of persons in distress upon receiving information of their need for assistance.[xxv] In the 2001 MV Tampa case, where a Norwegian cargo ship rescued over hundreds of refugees from a sinking boat in the Indian Ocean, the captain, crew and owner of the vessel exemplified this duty with remarkable courage and dedication, earning them the prestigious Nansen Refugee Award from UNHCR.[xxvi] This incident significantly altered the discourse on protection of lives at sea. 

Operational Considerations for Assisting People at Sea 

Operational considerations are vital in addressing the safety and welfare of individuals already in precarious situations. Three key operational aspects are crucial in this regard: search and rescue operations, disembarkation to a place of safety and identification of needs and responses. 

Search and Rescue (SAR) operations are fundamental in responding to distressed situations at sea. Under International Maritime Law, states are obligated to cooperate in establishing, operating and maintaining effective SAR services.[xxvii] Guidelines under the SAR Convention outline the responsibilities regarding the treatment and provision of assistance to persons rescued at sea. These include ensuring access to a place of safety where survivors' safety is no longer threatened, basic needs are met, and transportation arrangements can be made for their next destination. While an assisting ship may serve temporarily as a place of safety, it should be relieved of this responsibility as soon as alternative arrangements are available.[xxviii]

Maritime law assigns primary responsibility for disembarkation to a place of safety to the state within whose SAR zone the rescue occurs. However, challenges arise when there is a lack of consensus over responsibility, particularly regarding asylum-seekers and refugees who cannot be returned to their country of origin. In such cases, coordination with the United Nations High Commissioner for Refugees (UNHCR) is essential in ensuring appropriate treatment and assistance for rescued individuals. A “place of safety” under international maritime law refers to a location where the safety and well-being of survivors are assured and where their fundamental human requirements, including food, shelter and medical care, can be provided. It also serves as a point from which arrangements can be made for the survivors' onward or final journey.[xxix] In 2001, the MV Tampa, a cargo ship flying the Norwegian flag, rescued more than 400 refugees from a sinking boat in the Indian Ocean. Initially heading towards Indonesia, the ship changed course to Christmas Island at the insistence of the rescued individuals. Australian authorities refused entry to territorial waters, but the shipmaster entered Australian waters, resulting in the ship's seizure.[xxx] After a seven-day standoff, the rescued individuals were taken to Papua New Guinea under the “Pacific Solution,”[xxxi] a controversial Australian policy that involved transferring asylum seekers to offshore processing centres in Pacific island nations. This incident underscored the insufficiency of the then-existing laws for cases involving large-scale rescues and unwilling states.[xxxii] Consequently, the IMO initiated reforms, amending the SAR Convention and SOLAS Convention and adopting the Guidelines on the Treatment of Persons Rescued at Sea to address such situations, making it difficult for coastal states to deny a place of safety. [xxxiii] By refusing to provide a place of safety in due time, states are misusing SAR rules for the purpose of border and migration control. 

Identifying the needs of rescued individuals and providing an appropriate response are vital components of humanitarian assistance. International Maritime Law and Human Rights Law mandate the provision of initial medical and other essential needs, the right to seek asylum and protection from persecution or death. Identification efforts include screening for vulnerabilities, while responses encompass immediate assistance and referral to specialised services provided by the government agencies, UN agencies and Civil Society Organizations (CSOs). Despite the legal frameworks in place, challenges persist due to the diverse needs, profiles and rights of individuals rescued at sea, as well as the involvement of multiple specialised agencies and CSOs. Addressing these challenges requires ongoing cooperation and coordination among stakeholders to ensure the effective protection of vulnerable populations traversing the world's oceans. 

Conclusion 

In conclusion, the protection of sea migrants and refugees is a multifaceted issue governed by a complex web of international laws and agreements. Despite the dangers and challenges associated with sea migration, individuals continue to embark on perilous journeys in search of safety and opportunity. While international legal frameworks exist to safeguard the rights and well-being of individuals at sea, their implementation requires collaborative efforts among states, international organisations and humanitarian agencies. Operational considerations, including search and rescue operations, disembarkation to a place of safety, and identification of needs and responses, are crucial in addressing the safety and welfare of individuals in distress at sea. However, challenges persist in ensuring effective protection due to the diverse needs and profiles of rescued individuals and the involvement of multiple specialised agencies and civil society organisations. Embracing a future-oriented approach grounded in solidarity and respect for human dignity will enable us to navigate the complexities of maritime migration with security and compassion.

*****

*Nithyakalyani Narayanan. V, Research Intern, Indian Council of World Affairs, New Delhi
Disclaimer: Views expressed are personal.

Endnotes

[i] Migration Flow to Europe: Arrivals. (n.d.). International Organisation for Migration. Retrieved April 19, 2024, from https://dtm.iom.int/europe/arrivals.

[ii] Tunisia: African Migrants Intercepted at Sea, Expelled. (2023, October 10). Human Rights Watch. https://www.hrw.org/news/2023/10/10/tunisia-african-migrants-intercepted-sea-expelled.

[iii] Who is a Migrant? | International Organization for Migration. (n.d.). International Organization for Migration. https://www.iom.int/who-migrant-0.

[iv] Article I (A(2)), 1951 Convention Relating to the Status of Refugees.

[v] Already Complicit in Libya Migrant Abuse, EU Doubles Down on Support. (2023, February 8). Human Rights Watch. Retrieved April 15, 2024, from https://www.hrw.org/news/2023/02/08/already-complicit-libya-migrant-abuse-eu-doubles-down-support.

[vi] Migrant and refugee movements through the Central Mediterranean sea - Joint Annual Overview 2022 | Displacement Tracking Matrix. (2024, March 27). https://dtm.iom.int/reports/migrant-and-refugee-movements-through-central-mediterranean-sea-joint-annual-overview-2022.

[vii] Article 6, Article 9 and Article 7, ICCPR.

[viii] Article 22, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

[ix] Convention and Protocol relating to the Status of Refugees, UNGA Resolution 2198 (XXI).

[x] Article 33 (1), 1951 Convention Relating to the Status of Refugees.

[xi] Article 16, 1951 Convention Relating to the Status of Refugees.

[xii] UNHCR Advisory Opinion on the Rules of Confidentiality Regarding Asylum Information. (2024, February 12). Refworld. https://www.refworld.org/jurisprudence/amicus/unhcr/2005/en/93151.

[xiii] Chapter V, Regulation 33(1), SOLAS Convention, 1974.

[xiv] Article 98, UNCLOS, 1982.

[xv] Chapter 2, SAR Convention, 1979.

[xvi] UNGA resolution 55/25.

[xvii] Article 16 (2) and (4), Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000.

[xviii] Preamble, Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000.

[xix] Article 5, Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000.

[xx] Article 94, UNCLOS, 1982.

[xxi] SAR Convention, 1979.

[xxii] Chapter V, Regulation 7 SOLAS Convention, 1974.

[xxiii] Annex para 1.3.2, SAR Convention.

[xxiv] UNHCR thanks India for taking care of 142 Rohingyas intercepted in Andaman. (2023, December 26). The Hindu. Retrieved April 15, 2024, from https://www.thehindu.com/news/national/unhcr-thanks-india-for-taking-care-of-142-rohingyas-intercepted-in-andaman/article67674873.ece.

[xxv] Article 98(1) UNCLOS, 1982.

[xxvi] Norwegian sailors, refugee women honoured on World Refugee Day. (2002, June 20). United Nations High Commissioner for Refugees. Retrieved April 15, 2024, from https://www.unhcr.org/in/news/norwegian-sailors-refugee-women-honoured-world-refugee-day.

[xxvii] SAR Convention, 1979.

[xxviii] Guidelines to the Treatment of Persons Rescued at Sea, Resolution MSC. 167 (78).

[xxix] International Maritime Organization (IMO), Resolution MSC.167(78), Guidelines on the Treatment of Persons Rescued At Sea, -, 20 May 2004, https://www.refworld.org/legal/resolution/imo/2004/en/32272 [accessed 16 April 2024]

[xxx] Victorian Council for Civil Liberties Inc. v. Minister for Immigration & Multicultural Affairs (& Summary) ("Tampa Decision"), [2001] FCA 1297, Australia: Federal Court, 11 September 2001, https://www.refworld.org/jurisprudence/caselaw/ausfc/2001/en/19206 [accessed 15 April 2024].

[xxxi] Barnes, R. (2004). Refugee Law at Sea. The International and Comparative Law Quarterly, 53(1), 47–77. http://www.jstor.org/stable/3663136.

[xxxii] Bailliet, C. (2003). The “Tampa” Case and Its Impact on Burden Sharing at Sea. Human Rights Quarterly, 25(3), 741–774. http://www.jstor.org/stable/20069685.

[xxxiii] IMO Resolution MSC.155(78), MSC 153 (78), 20.05.2004 and Resolution MSC.167(78) Annex 34.