The Aquarius and its historic precedents: rescue at sea and the politics of disembarkation
Shortly after dawn on Sunday morning (17 June 2018), the 629 people rescued in the Mediterranean by the Aquarius were disembarked in the Spanish port of Valencia. The survivors, including 123 unaccompanied minors and seven pregnant women, had spent more than a week at sea. Muhammad* explains that his journey began on Friday night (8 June 2018) as his overcrowded dinghy was launched from Libya with instructions to ‘head straight’ and follow the stars. The passengers were told that it would take just three to four hours to reach Europe, but nearly 24 hours later their boat had filled with water and many of its passengers had fallen overboard. In the rescue operation that followed on Saturday night (9 June 2018), two young men drowned. Had it not been for the SOS Mediterranee / MSF operated Aquarius there is no doubt that many more would have died. But while such incidents are now rarely deemed newsworthy by Europe’s media, the political and diplomatic drama of the next leg of their journey drew unprecedented coverage and conjecture.
By the end of Saturday night, the Aquarius had carried out 5 further rescues, all of which had been coordinated by the Italian search and rescue coordination centre in Rome. But, as the ship headed north to a safe harbour, reports came in that the new Italian interior minister Matteo Salvini, leader of the anti-immigration Lega Nord, had announced that he was ‘shutting the ports’. Rome therefore instructed the Aquarius to stop in international waters, where it remained for three days, just 35 nautical miles from Italy and 27 nautical miles from Malta. With Italy and Malta continuing to argue that other states (including the flag states of vessels in the area) should take responsibility for accepting the rescued refugees, it was not until Tuesday morning (12 June 2018) that the Aquarius was offered safe harbour when the leader of the new socialist Spanish government Pedro Sanchez invited the ship to disembark at the port of Valencia, some 760 nautical miles and a six-day journey away.
The refusal of the Italian and Maltese governments to accept the rescuees exposes the increasingly exclusionary attitude of some European governments and the inadequacies of a European asylum system which disproportionately impacts Mediterranean coastal states. But it also illustrates the impotence of the international law on rescue at the sea in the face of politicking by national governments, in that while there is an explicit legal obligation upon the captains of ships to provide assistance to those in distress at sea, there is no complementary obligation for coastal states to disembark rescuees.
Sadly not a new phenomenon, the negative - and often tragic - implications of this paradox have been visible for decades.
On 21 May 1979, the master of the UK-flagged commercial ship the Sibonga oversaw the rescue of 1003 people from the two fishing boats in which they had sought to escape Vietnam. Approximately 700,000 people were to leave Vietnam by boat in the aftermath of the failed US intervention, in what was described as the Indochina Refugee Crisis. Having survived for four days in tightly packed conditions, many of the refugees rescued by the Sibonga struggled to stand or climb and so the ship’s crew used cargo gear to hoist people aboard. The captain, Healey Martin, described it as a ‘heartbreaking scene and one I shall never forget’ (Grant, 1980). As the Sibonga approached Hong Kong (then under British colonial control), the Marine Department there refused it entry and instructed it to remain in international waters. It was not until the UK government agreed to resettle the survivors two weeks later that they were disembarked and the Sibonga was able to continue her journey. In the meantime, her sister ship the Roachbank had rescued 293 people - mostly children - in similar circumstances, and on 25 May was refused entry to the Taiwanese port of Kaohsiung. It was to be over a month until the Roachbank’s rescued refugees were finally disembarked.
A note of a meeting at 10 Downing Street on 29 May 1979 reveals that the British Prime Minister Margaret Thatcher argued to abandon the convention adopted by the previous Labour administration that refugees rescued by UK-flagged ships and refused entry by coastal states would be accepted for resettlement in the UK. A note from the Home Secretary submitted ahead of that meeting concluded that accepting the refugees would ‘be seen as leading to an influx of immigrants which we could not control’ and warned that a resettlement policy ‘could be exploited by racketeers’. The Downing Street note records Thatcher as saying that ‘there would be political trouble if the UK accepted the Roachbank refugees, immediately after accepting 982 from the Sibonga’. Instead, she insisted, the British Government must be seen ‘to have made a real effort to stand them off’ and to have taken a ‘firm stand’. While other cabinet ministers argued that the Roachbank refugees should be accepted given of the high number of children on board, Thatcher was determined to be seen to take a stand against the Taiwanese authorities and against refugee resettlement more generally. It was therefore not until the 26 June 1979, after the refugees had spent a month in wholly inadequate and precarious conditions, that an agreement was reached whereby they could be disembarked in Taiwan with a promise that they would be resettled in the UK.
A letter from Bank Line, which owned and operated the two ships, estimated that the delay in disembarkation was costing them £3,000 a day, illustrating the conflict between the commitment to rescue at sea and the commercial imperatives of shipping companies. And by the late 1970s that tension had reportedly led to certain shipping companies instructing their captains not to stop for refugees, leading to refugee boats being bypassed and lives being lost (Grant, 1980). While the situation was resolved to some extent by the establishment of a UNHCR resettlement programme, it was later abandoned amid (depressingly familiar) arguments that it was encouraging people to take to the sea.
The tensions in the law of the sea remained unresolved. This became acutely visible in August 2001 when the Norwegian-flagged ship the Tampa rescued 433 people under the direction of the Australian search and rescue authorities. Following the rescue, the Australian government refused to allow the vessel entry to its territorial waters and instructed it to anchor 14 miles offshore. But two days later the captain issued a distress signal stating that there was a significant risk of loss of life due to conditions on board and a lack of supplies. As he sought to enter their territorial waters, however, the Australian government responded by dispatching a 45 person Special Armed Services (SAS) unit to seize control of the vessel and return it to international waters. There the Tampa was held at anchor for a further eight days while negotiations took place between Norway and Australia, with the former arguing that the latter had created a ‘most unwelcome obstacle to prevent [people] from being rescued when they are in distress or shipwrecked’ (Kenney and Tasikas, 2003). While the international community was startled by Australia’s actions, little progress was made in resolving the inconsistencies in the law of the sea framework around rescue and disembarkation.
More recently, some of the coastal states (in particular Thailand and Malaysia) that refused to allow the disembarkation of Vietnamese refugees are reportedly conducting ‘push-backs’ by preventing boats carrying Rohingya refugees from landing on their shores.
And back in the Mediterranean, unwarranted delays for commercial ships unable to disembark people have been a regular feature of the rescue of refugees at sea (see for example the Francisco Catalina in 2006, the Pinar E in 2009, and the Salamis in 2013). In 2011, the reluctance of commercial, fishing and naval ships to provide assistance to people in distress at sea contributed to the tragic failure to rescue the 72 people on board a dinghy that drifted in the Mediterranean for two weeks. By the time it was washed back onto the coast of Libya all but nine of the people on board had died. One of the few survivors described attempts to secure assistance from passing vessels by holding up the dead babies, sick women and empty fuel tanks. But ‘gradually, they just disappeared, and we realised that they were not responding, replying to our distress calls at all’. The accounts of the survivors were drawn on by the Forensic Oceanography team at Goldsmiths University to develop a reconstruction of the incident which demonstrates that the boat’s distress calls were also ignored by the Italian and Maltese search and rescue authorities, and by NATO despite the presence of substantial military assets in the area.
The refusal of Italy and Malta to allow the disembarkation of the people rescued by the Aquarius will inevitably lead to more such incidents. Squabbles between coastal states have already resulted in the unnecessary death of refugees at sea, as in 2013 when 34 people died after the Italian authorities told a caller from a sinking boat to ‘call Malta’ despite the presence of an Italian Navy vessel nearby. And as a number of search and rescue organisations choose to relocate from the Mediterranean - as their assets are seized, their crews are subjected to criminal proceedings and their operations are increasingly undermined by European cooperation agreements with the Libyan ‘coastguard’ - commercial ships will play an increasingly important role in rescuing those in distress. But the failure of the international law of the sea regime to protect the integrity of the principle of rescue at sea will mean that national politics, justified by arguments about immigration control, smuggling, ‘pull factors’ and ‘burden-sharing’, will inevitably lead to more deaths at sea.
Grant (1980) The Boat People: an ‘Age’ investigation; Penguin Books
Kenney and Tasikas (2003) The Tampa Incident: IMO perspectives and responses on the treatment of persons rescued at sea; Pacific Rim Law and Policy Journal