Email from Aquarius to Tunisian Navy, copying French MRCC

“Dear Sirs,

I acknowledge receipt of your email of 13:34, 12:31 and 11:35. My current position is 37 46.8N 010 43.3E and I keep standing-by in this position. The vessel P610 is close to my position and I am in VHF contact with it. Please be advised that all 5 survivors have stated a real fear of being returned to Tunisia and have declared their intention to seek asylum. We are concerned that returning these people to Tunisia could be in breach of international refugee law. We are currently seeking guidance with UNHCR regarding this matter who have already informed us they are willing to support the situation and are we awaiting their further instructions.

For your information, the government in charge of the designation of a place of safety where the survivors will disembark from the assisting ship (M/V Aquarius) should take in consideration “The need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened is a consideration in the case of asylum-seekers and refugees recovered at sea.” (IMO Resolution MSC.167(78) Art. 6.17).

We will need some time to be able to clarify these point and to be able to explain to the 5 people on board the situation. Aquarius is configured for Search and Rescue and we are not in any way capable or willing to forcefully put someone on another vessel against their will. Please allow us the time to come to an understanding with all parties before proceeding.

In this regards, I kindly ask you to keep the vessel P610 in standby, the time needed for this clarification.

As per your request, we’ll keep this RCC informed. Thank you for your cooperation.
Best Regards”

Legal references:

1951 Refugee Convention

Article 33: Prohibition of expulsion or return (“refoulement”)

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” [Click here for legal reference]

UNHCR Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
Paragraph 24:
For the reasons set out below, UNHCR is of the view that the purpose, intent and meaning of Article 33(1) of the 1951 Convention are unambiguous and establish an obligation not to return a refugee or asylum-seeker to a country where he or she would be risk of persecution  or other serious harm, which applies wherever a State exercises jurisdiction, including at the frontier, on the high seas or on the territory of another State. [Click here for legal reference]
Paragraph 5.Shipmaster:
“Shipmaster should […] comply with any relevant requirements of the Government responsible for the SAR region where the survivors were recovered, or of another responding coastal State, and seek additional guidance from those authorities where difficulties arise in complying with such requirements.” [Click here for legal reference]