6.3 Refugees
Passage is innocent so long as it is not prejudicial to the peace, good order or security
of the coastal State. But if a vessel picks up tens or hundreds of persons enroute,
either recovered from the sea or from other rickety or dilapidated unseaworthy boats
and, thereafter, seeks to disembark them at the next port of call, will the voyage be
rendered non-innocent and is the coastal State entitled to take measures to prevent
disembarkation of those persons or prevent the vessel from calling at its port?
92
The coastal State response is certainly linked to the scale and frequency of the
problem. The Tampa is, perhaps, one of the most famous and often cited case. This
Norwegian-registered container ship rescued 438 asylum seekers from close to
Christmas Island in Australia but within the search and rescue region of Indonesia
on 28 August 2001 and was refused permission to disembark the refugees in
Australia. A long diplomatic standoff between Australia and Indonesia ensued
while the master of the Tampa continued to remain at sea and hold his ground.
Australian military eventually boarded the Tampa, and following quick agreements,
landed the asylum seekers at ‘offshore’ detention centers in Nauru and Papua New
Guinea.
93
But, not every case has a successful conclusion like the Tampa, or the Pinar E.
94
As of 2017, roughly 46,000 asylum seekers and migrants have drowned in the
Mediterranean and another 2000-odd in Australian waters, owing to turnback and
interdiction policies of States enforcing securitarian rather than humanitarian
response.
95 Australia and EU Member States tend to curtail traffic on the premise
that passage may be rendered non-innocent if a vessel loads or unloads persons
contrary to the immigration laws and regulations of the coastal State.
96 However,
article 27
97 of the UNCLOS limits such ‘necessary steps’, and in any case excludes
the exercise of criminal jurisdiction onboard a ship engaged in innocent passage,
92 There is also the case of vessel specifically sailing out to the rescue of refugees and asylum
seekers in distress at sea and bring them to a prior intended port. It would be interesting to examine
the measures taken by a coastal State in such a case from the standpoint of UNCLOS.
93 Matthews (2018), pp. 110–111; Burnside (2002).
94 In April 2009, the master of the Turkish freighter Pinar E faced an ordeal similar the Tampa, after
he picked up 140 migrants in distress at sea and attempted to enter the port of Lampedusa. Italy
refused to grant permission stating that the migrants were rescued in the Maltese search and rescue
region whereas Malta held that international law required that the rescued migrants be disembarked
at the nearest safe port, which happened to be Lampedusa. Human Rights Watch (2009).
95 Moreno-Lax (2017).
96 The United States has been running stringent alien migrant interdiction operations at sea against
refugees and asylum seekers from Haiti, Cuba, Dominican Republic, Bahamas and China (Palmer
n.d.). The European Union has worked to stem the tide of refugees from Cape Verde, Mauritania,
Senegal, Syria and Libya. Specifically, Italy has been involved in handling Libyans, and Thailand in
interdiction and turning back of Rohingyas from Myanmar.
97 UNCLOS Article 27, Criminal jurisdiction onboard a foreign ship.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
245
Passage is innocent so long as it is not prejudicial to the peace, good order or security
of the coastal State. But if a vessel picks up tens or hundreds of persons enroute,
either recovered from the sea or from other rickety or dilapidated unseaworthy boats
and, thereafter, seeks to disembark them at the next port of call, will the voyage be
rendered non-innocent and is the coastal State entitled to take measures to prevent
disembarkation of those persons or prevent the vessel from calling at its port?
92
The coastal State response is certainly linked to the scale and frequency of the
problem. The Tampa is, perhaps, one of the most famous and often cited case. This
Norwegian-registered container ship rescued 438 asylum seekers from close to
Christmas Island in Australia but within the search and rescue region of Indonesia
on 28 August 2001 and was refused permission to disembark the refugees in
Australia. A long diplomatic standoff between Australia and Indonesia ensued
while the master of the Tampa continued to remain at sea and hold his ground.
Australian military eventually boarded the Tampa, and following quick agreements,
landed the asylum seekers at ‘offshore’ detention centers in Nauru and Papua New
Guinea.
93
But, not every case has a successful conclusion like the Tampa, or the Pinar E.
94
As of 2017, roughly 46,000 asylum seekers and migrants have drowned in the
Mediterranean and another 2000-odd in Australian waters, owing to turnback and
interdiction policies of States enforcing securitarian rather than humanitarian
response.
95 Australia and EU Member States tend to curtail traffic on the premise
that passage may be rendered non-innocent if a vessel loads or unloads persons
contrary to the immigration laws and regulations of the coastal State.
96 However,
article 27
97 of the UNCLOS limits such ‘necessary steps’, and in any case excludes
the exercise of criminal jurisdiction onboard a ship engaged in innocent passage,
92 There is also the case of vessel specifically sailing out to the rescue of refugees and asylum
seekers in distress at sea and bring them to a prior intended port. It would be interesting to examine
the measures taken by a coastal State in such a case from the standpoint of UNCLOS.
93 Matthews (2018), pp. 110–111; Burnside (2002).
94 In April 2009, the master of the Turkish freighter Pinar E faced an ordeal similar the Tampa, after
he picked up 140 migrants in distress at sea and attempted to enter the port of Lampedusa. Italy
refused to grant permission stating that the migrants were rescued in the Maltese search and rescue
region whereas Malta held that international law required that the rescued migrants be disembarked
at the nearest safe port, which happened to be Lampedusa. Human Rights Watch (2009).
95 Moreno-Lax (2017).
96 The United States has been running stringent alien migrant interdiction operations at sea against
refugees and asylum seekers from Haiti, Cuba, Dominican Republic, Bahamas and China (Palmer
n.d.). The European Union has worked to stem the tide of refugees from Cape Verde, Mauritania,
Senegal, Syria and Libya. Specifically, Italy has been involved in handling Libyans, and Thailand in
interdiction and turning back of Rohingyas from Myanmar.
97 UNCLOS Article 27, Criminal jurisdiction onboard a foreign ship.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
245