BY Capt. A. K. Bansal
According to the United Nations High Commission for Refugees (UNHCR), if any person in fear of being persecuted for reasons of religion, nationality, race or political opinion, is outside his country and is unable or unwilling to return owing to such fears, he is a refugee. However, before any person becomes a refugee, he has to leave or escape from his country. Apart from land and air routes, which have their own problems depending upon immigration and other restrictions laid down by countries, the easiest way any person can escape is by sea, as it is virtually impossible for any country in the world to fortify every meter of its coast line to prevent its people from taking to boats.
This problem came to the fore on a massive scale with the Vietnamese boat people in the last two decades when thousands of Vietnamese people took to boats to come within sight of ocean going ships on international trade routes in the China Sea. This created many problems for the International Maritime Community. To alleviate some of the hardship to shipping and to such refugees, the UNHCR formulated rules in 1983.
Smuggling people to one country to another by sea has become a well-organised international racket. Even though this episode has retreated to the background, the problem of refugees who take to the seas to escape persecution is on the increase. Smuggling people to one country to another by sea has become a well-organised international racket which has created more problems for the International Maritime Community.
The Norwegian flag, Ro Ro Cum Container Carrier TAMPA rescued about 433 Afghan refugees from a sinking wooden craft in the Indian Ocean. Running such people across the oceans in ill fitted craft not capable to transport them is part of the modus operandi of people who are in the business of illegally transporting prospective immigrants in the guise of refugees. The overloaded wooden boat carrying them was spotted by an Australian helicopter pilot who informed the captain of the Tampa and guided his ship to the wooden boat. The master picked up these men, women, and children and headed to the Christmas Islands as directed by the helicopter pilot.
But the Australians prohibited their landing on Christmas Island . After 3 days of inaction, the master sent a distress call stating that he as running out of medical supplies, food and water and a lot of refugees were on the verge of death. The master further claimed that he could not make the voyage to his original destination with so many people on board.
Owners made every effort, including appeals to UNHCR and using the media, to help unload the refugees, but without success. The ship was given medical help and told to leave without allowing anyone to leave the ship. The owners suffered heavy losses but fully supported the master’s actions.
Under the Maritime Convention Act 1911 and regulation 10-1 of Chapter V of the Safety Of Life At Sea Convention (SOLAS), The Master of every ship has an overriding duty to save life at sea. This is also a tradition of the sea that has been followed by all seamen as a matter of course without question, for centuries. Art. 98 of the United Nations Convention on Law of the Sea (UNCLOS) obliges every state to require the master of every ship under their flag to render assistance to any person found at sea in danger of being lost. Therefore, in effect and in Law, if a master fails to save life when he could do so without endangering his own ship and lives on board, he could be guilty of an offence. Even his Master’s Certificate can be questioned in accordance with Laws of the Flag State as stipulated under Art. 98 of UNCLOS, subject to some basic requirements and considerations. Therefore the master acted legitimately.
But under 1983 rules of the United Nations High Commission (UNHCR), for Vietnamese refugees, it was obligatory on the master not to deviate to any other port but to his original destination port.
This made it obligatory on all member countries of United Nations to disembark such refugees without undue delay to the ship, regardless of what ever immigration rules they may have had and whatever formalities they may have had to conduct, provided the ship was originally bound for THAT country. Therefore, even though this was a key question, for many days after the incident neither the shipowners nor the western media let it be known where the ship was actually bound when she picked up these refugees. From an article written by Mr. Michael White, Q.C, in Seaways magazine, it was learnt that the ship was in fact bound from Freemantle to Singapore.
Traditionally, till the Maritime Conventions Act 1911, duty to go to the rescue of life at sea of any nationality was not a legal responsibility but a moral one. Yet no seafarer ever flouted it. Today, even with written laws, seafarers flout the law with impunity to save detentions to their ships, to avoid compliance with formalities, and answer questions.
Obviously the UNHCR rules were intended to encourage shipmasters and owners to SAVE life without fear that their ship would be unduly detained at her port of destination by immigration authorities, etc.
Thus the burden of catering to the Vietnamese refugees fell on the country to which the ship was bound, when she did not even know that she was going to pick up refugees. These rules were framed for rescue of Vietnamese refugees in the 1980’s. But there is no reason why the International community should change the requirements just because the refugees are of different nationality or were picked up in a different part of the world.
Thus the burden of catering to the Vietnamese refugees fell on the country to which the ship was bound. The situation was no different in the case of this rescue except that there was a complication for Tampa because an Australian helicopter not only guided the ship to the sinking boat, but also directed the master to take them to Christmas Island. In law this order to go to Christmas Island can be attributed to the Australian government the master is deemed to have complied with instructions of the government.
Since the Australians did not want the Afghans, it may have been a lapse on the part of the helicopter pilot to direct the ship to Christmas Islands, especially if the Tampa was originally bound for Singapore. It was also reported that the 433 refugee threatened the captain to take them to a western country. The master said, on television, that since the refugees threatened him and since they were only 28 crew on board as against 433 refugee, he had no choice but to put into Christmas Islands.
This amounts to commandeering the ship and the master had to go where the refugees wanted him to go. This is the law of the jungle. Civilised societies abide by international law in the larger interests, even if it is inconvenient to do so. In accordance with UNHCR rules for Vietnam refugees, the master should not have deviated to Australia. This way he imposed the duty and burden to disembark the refugees on a DIFFERENT country than the one he was bound for.
Australia is a party to the 1951 refugee convention and the 1967 protocol relating to the status of refugees. Therefore sending the refugees away may amount to Australia being in breach of Art 33 of this convention. An Australian Court has since declared that the action of Australian government not to disembark the refugees was illegal. But the Australian government has appealed against this decision.
Also, Australia’s refusal to cooperate with the UNHCR after being requested to do so may amount to a breach of Art. 11(1) of the 1967 protocol. It may be that Australian authorities should have complied with their international obligations first. They could go through with whatever formalities were required in accordance with their international obligations. Once that was done, they were not bound to keep the refugees in Australia permanently. They could deport them to the parent country and/ or send them elsewhere if any other country will accept them.
The Australian Shipowners Association has already written to the Australian government asking them to clarify what would be their position if master of one of their ships BOUND for an Australian port, picked up refugees. This is because in accordance with his obligation under SOLAS and UNCLOS, he is bound to do so. This puts the Australian government in a spot as Australia is signatory both these conventions.
Another argument usually put forward by the masters and owners is that even when their ships fully comply with International Maritime Law, the masters and officers are harassed by immigration officers and their ships detained on arrival at the next port till question are answered and inquires made. Even when their ships fully comply with International Maritime Law, the masters and officers are harassed by immigration officers. But that is inevitable. Immigration authorities have every right to find out whether it is a genuine case of rescue and not a case of smuggling people to their country under the guise of rescue. It does happen. Sailors do it for money nowadays. Immigration authorities can’t be blamed for it. Incidentally, UNHCR rules do reimburse owners certain sums of money for such rescues and the resultant detention to the ship. P & I club, direct costs such as loss of hire, or chartering another vessel, are not covered. In the case of the Tampa, to meet commercial obligations, the owners were forced to divert one ship and charter another.
P & I Clubs also usually cover cost of diversion to search for and pick up refugees and for any personal injuries, illness or death among the refugees when carried on board, where such a claim arises from owner’s negligence. If a ship had to divert to seek medical treatment for any refugee, this would also be covered. Local authorities may attempt to impose fines or penalties on ships for bringing refugees to have suitable health documents. P & I Clubs usually reimburse any immigration or health regulation fines.
To that extent shipowners and the masters should feel gratified not only because they will get some compensation, however small, but also that their acts to save lives will be duly recognised by the international community.