The Particular Problems of Migrants and Asylum Seekers Arriving by Sea
In the last years too many people have put at risk their lives in attempts to cross a border. They are driven by the desire to enter into a country where they will be safe from persecution, poverty, conflicts, natural disasters or other calamities and where they will try to spend a decent life. They are also ready to face social discrimination and vulnerability, after arriving somewhere and living there irregularly.
The hope to migrate is the reason why the waters of some semi-enclosed seas, such as the Mediterranean or the Red Sea, have become the graveyard of thousands of human beings, including children, who are moving from some African countries to reach, respectively, the European Union or Saudi Arabia.1 Does it really matter if, in many cases, the attempts to migrate are illegal from the point of view of a national legislation?2 Is the fight against illegal migration the main concern under the perspective of international law where also rules on human rights and refugees’ rights should have a role to play? This chapter gives a negative answer to both questions.
The special case of migration by sea is addressed by different, but interlinked, sectors of international law relating to the law of the sea, human rights law and refugee law.3 Depending on the specific circumstances, migrants at sea can also be people whose life is threatened, or people who run the risk of being tortured or killed, if deported to certain countries, or people seeking asylum.
The Asymmetrical Right to Emigrate
By definition, a migrant (or immigrant or emigrant, depending on the point of view) is a person who wants to cross one or more borders to leave the territory of a state and to settle in the territory of another state. Immigration is illegal if the crossing of the border occurs without complying with the legislation of the state of destination or the state of transit.
Para. 2, of the 1948 Universal Declaration of Human Rights provides that every individual has the right to leave any country, including his own. The same right is provided for in Art. 12, para. 2, of the International Covenant on Civil and Political Rights (New York, 1966). However, while the human right to emigrate is generally recognized, it remains an asymmetrical right, as it is not complemented by a corresponding right to immigrate.4 Under customary international law and unless different provisions are applicable because of treaties in force, any state has the sovereign right to allow or not to allow migrant aliens to enter its territory and can adopt legislation governing the entry of aliens.
Today legislation restricting or prohibiting immigration is in force in many states for different reasons. In cases of a massive flows of migrants, some states may be concerned for national security or the welfare of their residents or for the preservation of the cultural identity of the country. It is a matter of fact that the human right to mobility is not fully protected by international law. In the present situation of so-called globalization, goods and capital move freely or almost freely, but not human beings. If they want to escape from persecution, poverty or conflict, humans are often forced to cross borders clandestinely at the cost of great human suffering. Looking at the question from the point of view of the migrant, one may ask what is the meaning of a right to emigrate without a corresponding right to immigrate. Where are migrants entitled to settle if they are rejected by the states of destination? On the high seas? In the unclaimed sector of the Antarctic continent? On the Moon or in outer space?
Immigration and International Law of the Sea
A number of rules of international law of the sea are relevant for migration at sea. They belong to customary international law and are reflected in the United Nations Convention on the Law of the Sea (Montego Bay, 1982; UNCLOS)5 and other treaties. Also as regards migration the typical approach of international law of the sea is based on the question of the so-called jurisdiction, that is the determination of the state that can exercise powers over ships navigating in the different areas into which the sea is divided for legal purposes.
The Territorial Sea
Beyond land, the territory of a state includes a belt of coastal waters, called territorial sea (Art. 2, para. 1), whose breadth cannot exceed 12 nautical miles from the baselines from which the territorial sea is measured (Art. 3).6 The territorial sea exists ipso iure, as a natural prolongation of the land territory of a state. For all matters, including immigration at sea, the territory of a coastal state goes as far as the breadth it has established for its territorial sea.
Within the territorial sea there is a right of innocent passage for ships flying the flag of all states (Art. 17). No violation to the immigration legislation of a coastal state occurs if a foreign ship transporting migrants merely passes through that state’s territorial sea, without engaging in any activity that is prejudicial to the peace, good order or security of such state (Art. 19, para. 1). However, passage cannot be considered as innocent if, while in the territorial sea, the foreign ship engages in ‘the loading or unloading of any … person contrary to the … immigration … laws and regulations of the coastal State’ (Art. 19, para. 2). The coastal state may also take necessary steps in its territorial sea to prevent passage which is not innocent (Art. 25, para. 1). It may also adopt laws and regulations, in conformity with the provisions of UNCLOS and other rules of international law, relating to the prevention of infringements of its immigration laws and regulations during innocent passage through the territorial sea (Art. 21, para. 1, h). Foreign ships exercising the right of innocent passage through the territorial sea must comply with all such laws and regulations (Art. 21, para. 4).7
As regards criminal matters, Art. 27, para. 1, provides that ‘the criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage’. While the conditional mood (‘should not be exercised’) does not contribute to the clarity of this provision, there are four exceptional cases where the criminal jurisdiction of the coastal state can be exercised. Two of them (‘if the consequences of the crime extend to the coastal State’ and ‘if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea’) can apply to cases where illegal immigrants are disembarked within the territorial sea.
The Contiguous Zone
In a zone that is contiguous to the territorial sea and cannot extend beyond 24 nautical miles from the baseline the coastal state may exercise the control necessary to:
… (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its territory or territorial sea (Art. 33, para. 1).8
Under the UNCLOS, the control that the state can exercise in the contiguous zone is limited to the purpose of preventing or punishing infringements of its immigration laws and regulations that, respectively, are likely to occur or have already occurred within its territory or territorial sea. For instance, the coastal state can board a foreign ship that is navigating in its contiguous zone if the ship has already committed an infringement to the state’s immigration rules by disembarking illegal immigrants into its territory or territorial sea.9 People on board suspected of smuggling migrants can be arrested and brought to trial. Boarding can also take place if there are clear grounds for believing that the ship is going to infringe the coastal state’s immigration rules by disembarking illegal immigrants into its territory or territorial sea. To be sufficiently effective, the term ‘to prevent’, used in Art. 33, para. 1, b, should imply also the exercise of criminal jurisdiction by the coastal state against those suspected of smuggling migrants, even though they have not yet entered into the territorial sea. But the UNCLOS could have been clearer in this regard,
The Exclusive Economic Zone
Within the exclusive economic zone the UNCLOS does not grant to the coastal state rights relating to immigration. This zone, that cannot extend beyond 200 nautical miles from the baselines, can be established for purposes mostly relating to the exploitation of natural resources (see Art. 56). As far as immigration is concerned, the regime applying in the exclusive economic zone is the same that applies on the high seas in general.10
The High Seas
The high seas is located beyond national jurisdiction and is open to all ships. On the high seas ships are subject to the exclusive jurisdiction of the flag state, this being the state that has granted them its nationality (Art. 92, para. 1). A ship which sails under the flags of two or more states, using them according to convenience, may not claim any of the nationalities in question and is assimilated to a ship without nationality (Art. 92, para. 2).
Among the freedoms pertaining to all states on the high seas, the main one is freedom of navigation (Art. 87, para. 1, a). The so-called interception at sea11 to prevent a ship from smuggling migrants can take place on the high seas only with the consent of the flag state.
In exceptional cases, a warship can board a foreign private ship on the high seas (so-called right of visit):
Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship (Art. 110, para. 1).
As ships engaged in migrant smuggling do not fall into any of the cases listed in Art. 110, they cannot be visited on the high seas.12 In most cases smugglers of migrants cannot be considered as slave traders, since migrants travel voluntarily and are not deprived of their freedom.
The Smuggling of Migrants at Sea as a Transnational Crime
The Protocol against the Smuggling of Migrants by Land, Sea and Air (Palermo, 2000),13 supplementing the United Nations Convention against Transnational Organized Crime (Palermo, 2000), provides for a specific international regime against the activities of organized criminal groups engaged in the smuggling of migrants. It entered into force on 28 January 2004 and is today binding on 140 states.
Art. 3, para. a, of the Migrants Protocol, defines ‘smuggling of migrants’ as follows:
… the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.
The definition shows that a clear distinction is made between the smuggler and the migrant. The latter is not the criminal against whom the Migrants Protocol has been adopted. An illegal immigrant is not the smuggler of himself.14 This explains why the Migrants Protocol also has the purpose of ensuring the protection of the rights of the illegal migrant who is considered the victim of the smugglers.15
The Migrants Protocol aims at promoting international cooperation for the prevention, investigation and prosecution of certain offences, provided that they are transnational in nature16 and involve an organized criminal group. The States Parties are bound to establish as criminal offences the smuggling of migrants and a number of acts which facilitate smuggling (Art. 6, para. 1).
As regards the smuggling of migrants at sea, the Migrants Protocol follows the same approach taken by UNCLOS, based on the principle of freedom of navigation on the high seas and in the exclusive economic zone and on the jurisdiction of the flag state.17 In particular, as regards the question of jurisdiction beyond the territorial sea, it provides as follows:
A State Party that has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law and flying the flag or displaying the marks of registry of another State Party is engaged in the smuggling of migrants by sea may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures with regard to that vessel. The flag State may authorize the requesting State, inter alia:
(a) To board the vessel;
(b) To search the vessel; and
(c) If evidence is found that the vessel is engaged in the smuggling of migrants by sea, to take appropriate measures with respect to the vessel and persons and cargo on board, as authorized by the flag State (Art. 8, para. 2).
On the basis of freedom of navigation on the high seas, it is only after having received the authorization by the flag state that the boarding and searching of a suspected foreign ship can take place. In this case, Art. 8, para. 2, allows the boarding state also to take ‘appropriate measures with respect to the vessel and persons and cargo on board’. Although the Migrants Protocol does not provide precise indications, measures such as the seizure of the ship and the arrest of the smugglers to be subsequently surrendered to the authorities of the flag state for criminal prosecution can be envisaged in this regard.
During the negotiations for the Migrants Protocol, Austria and Italy proposed to include a provision allowing a state to intervene on the high seas if a vessel having no nationality is involved in the trafficking of migrants and ‘based on its route, the vessel is undoubtedly bound for its coasts’ or if ‘the vessel is armed or governed or manned by nationals’.18 The proposal was not adopted.
Art. 8, para. 4, of the Migrants Protocol enters into the question of the communications between the states concerned, providing for an obligation of the flag state to ‘respond expeditiously’ to a request for authorization to interfere with a suspected ship:
A State Party shall respond expeditiously to a request from another State Party to determine whether a vessel that is claiming its registry or flying its flag is entitled to do so and to a request for authorization made in accordance with paragraph 2 of this article.
This means that informal and quick means of communication, such as telephone calls, facsimile letters or electronic mail can be used.
Another practical question of communication addressed by the Migrants Protocol is how to know the name, address (possibly, electronic address) or telephone number of the foreign authority bound to respond expeditiously:
Each State Party shall designate an authority or, where necessary, authorities to receive and respond to requests for assistance, for confirmation of registry or of the right of a vessel to fly its flag and for authorization to take appropriate measures. Such designation shall be notified through the Secretary-General to all other State Parties within one month of the designation (Art. 8, para. 6).
The Migrants Protocol provides that ships without nationality smuggling migrants can be boarded and searched. However – and this is a major gap – it does not clearly specify what the visiting state can do thereafter:
A State Party that has reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea and is without nationality or may be assimilated to a vessel without nationality may board and search the vessel. If evidence confirming the suspicion is found, that State Party shall take appropriate measures in accordance with relevant domestic and international law (Art. 8, para. 7).
The reference to the right to ‘take appropriate measures in accordance with relevant domestic and international law’ is of little help, considering that neither the UNCLOS, nor general international law provide for any specific action and that domestic law can only be in conformity with rules of international law. In the absence of a flag state, does this cryptic wording mean that the boarding state can arrest those who are suspected of migrant smuggling if there are clear grounds for believing that the ship is going to infringe the state’s immigration rules by disembarking illegal immigrants into its territory or territorial sea? The answer is far from clear.
The conclusion may be drawn that the drafters of the Migrants Protocol, being too concerned with the preservation of the freedom of the high seas, did not give sufficiently effective tools to states to fight against smuggling of migrants by sea. The emphasis put on communication between the States Parties involved, which seems to be the major innovation of the Protocol, has so far achieved modest results. Despite the already recalled Art. 8, para. 6, only 26 out of all the States Parties have announced the name of the authority bound to respond expeditiously to the requests by other States Parties.19 It seems that, with or without the Migrants Protocol, the legal framework to tackle illegal migration by sea does not substantively change. The main merit of the Migrants Protocol is to be found elsewhere, that is in the specification of the rights that must be granted to illegal migrants.20
Some Bilateral Agreements against the Smuggling of Migrants by Sea
Both the UNCLOS (Art. 311, paras 2 and 3) and the Migrants Protocol (Art. 17) allow for special agreements on a regional or bilateral basis. Such agreements have been concluded, although they are less numerous than those aimed at fighting other crimes at sea, such as drug or weapons trafficking. Due to the fact that the flow of migrants normally goes only in one direction, the agreements in question do not have a reciprocal content but provide for different rights and obligations with respect to either party. Some examples are provided hereunder.
Haiti and the United States
On 23 September 1981, in a period of massive flow of undocumented migrants towards the south-eastern part of the United States, Haiti and the United States of America concluded in Port-au-Prince an Agreement to Stop Clandestine Migration of Residents of Haiti to the United States.21 It aims at establishing ‘a cooperative program of interdiction and selective return to Haiti of certain Haitian migrants and vessels involved in illegal transport of persons coming from Haiti’ (preamble). The Agreement derogated to the rules of the international law of the sea on the exercise of jurisdiction by the flag state on the high seas. Haiti consented to boarding on the high seas by the United States authorities of private vessels flying the Haitian flag which may be involved in the irregular carriage of passengers from Haiti. After the boarding, further action, including the detention of people on board, could follow:
Upon boarding a Haitian flag vessel, in accordance with this agreement, the authorities of the United States Government may address inquiries, examine documents and take such measures as are necessary to establish the registry, condition and destination of the vessel and the status of those on board the vessel. When these measures suggest that an offense against United States immigration laws or appropriate Haitian laws has been or is being committed, the Government of the Republic of Haiti consents to the detention on the high seas by the United States Coast Guard of the vessels and persons found on board.
The United States had the right to return to Haiti the persons and vessels detained or to surrender them to the Haitian authorities.
The Government of Haiti agrees to permit upon prior notification the return of detained vessels and persons to a Haitian port, or if circumstances permit, the United States Government will release such vessels and migrants on the high seas to representatives of the Government of the Republic of Haiti.
Haiti was under an obligation to prosecute those who are suspected of illegal trafficking and to confiscate the vessels involved in it:
The Government of the Republic of Haiti agrees, to the extent permitted by Haitian law, to prosecute illegal traffickers of Haitian migrants who do not have requisite permission to enter the country of the vessel’s destination and to confiscate Haitian vessels or stateless vessels involved in such trafficking.22
Haiti was entitled to have a representative on board the American vessels engaged in the implementation of the Agreement:
The Government of the United States agrees to the presence of a representative of the Navy of the Republic of Haiti as liaison aboard any United States vessel engaged in the implementation of this cooperative program.
The Agreement was followed on 29 September 1981 by a Proclamation by the President of the United States on interdiction of illegal aliens23 and by Executive Order 12324, applying to ships carrying undocumented aliens and flying the flag of the United States, to ships without nationality and to ships flying the flag of a state with which the United States has arrangements authorizing the stopping and boarding.24
By an Exchange of Notes concluded on 25 March 1997,25 Albania and Italy pointed out that, due to the massive illegal flow of Albanian migrants to other countries, they had agreed ‘to strengthen their collaboration in the legal and humanitarian fields’. In particular, Albania agreed that Italy provided ‘its collaboration and its assistance in the control and the restraint at sea of illegal expatriations by Albanian nationals’. For an initial and renewable period of 30 days, Albania authorized Italy, through the Italian Navy,
to stop in international waters and to divert to Albanian ports ships flying the Albanian flag or in any way referable to the Albanian State, as well as to stop in Albanian territorial waters ships of any flag, which are engaged in the transport of Albania nationals who have escaped the controls carried out by the competent authorities in Albanian territory.
However, the ‘necessary technical procedures to implement this collaboration in Albanian territorial waters and in international waters’ were to be established as soon as possible through an ad hoc protocol. This was done under an Implementation Protocol adopted in Rome on 2 April 1997.
The Exchange of Notes set forth derogations to both the rule of the exclusive jurisdiction of the flag state on the high seas and the rule of the exclusive jurisdiction of the coastal state in its territorial sea, as far as Albania is concerned. Moreover, Albania was granted no control over what Italian ships were doing in the implementation of the Exchange of Notes. In this case, the intercepting party was entitled not to board, but to stop and divert the ships flying the flag of the other party. In fact, a ship can be stopped and diverted even without the need to board it. But this consideration would bring about very sinister consequences in the implementation of the Exchange of Notes, as will later be seen.26
Dominican Republic and the United States
On 20 May 2003, the Dominican Republic and the United States concluded an Agreement Concerning Cooperation in Maritime Law Enforcement.27 As stated in the preamble, it is based on the need for international cooperation in suppressing the smuggling of migrants, as reflected, inter alia, in the Migrants Protocol,28 in the principles of international law, such as the sovereign equality of states and ‘the principle of the right of freedom of navigation’.29 The parties bound themselves to
cooperate in combating the unsafe transport of migrants by sea and smuggling of migrants to the fullest extent possible, consistent with international law and available law enforcement resources and priorities related thereto (Art. 2).
As the Agreement is not limited to the smuggling of migrants, but covers also their unsafe transport, it would in principle apply also in the rather unlikely case where the migrants are entitled to legally enter the country of destination, but are transported in unsafe conditions. The Agreement establishes ‘a combined law enforcement shiprider program’ between the law enforcement authorities of the parties (Art. 4), where
‘shiprider’ means a law enforcement official of one Party authorized to embark on a law enforcement vessel or aircraft of the other Party (Art. 1, para. 14).30
The Agreement sets forth derogations to the rule of exclusive jurisdiction of the flag state on the high seas and of exclusive jurisdiction in its territorial sea of the coastal state from which the flow of illegal migrants originates. In addition, it provides for the use of shipriders, who can be embarked on the ships of either party. The shipriders not only ensure the most expeditious means of communication between the parties, but are also in charge of carrying out the enforcement measures. They are given quite broad powers:
When a shiprider is embarked on the other Party’s law enforcement vessel …, any law enforcement measure, including boardings, search or seizure of property, any detention of a person, and any use of force pursuant to this Agreement, whether or not involving weapons, shall be carried out by the shiprider.
a. Crew members of the other Party’s vessel may assist in any such action if expressly requested to do so by the shiprider, and only within the limits of such request and in the manner requested. Such request, including any request for the use of force, may only be made, agreed to, and acted upon in accordance with the law and policies of both Parties.
With regard to suspect ships flying the flag of the Dominican Republic, maritime migration law enforcement operations can take place in ‘Dominican waters’ (Art. 5, para. 1), meaning the internal waters and the territorial sea of the Dominican Republic, as well as ‘seaward of any State’s territorial sea’, meaning the high seas and the exclusive economic zone (Art. 8, para. 1). In the first case, the Dominican Republic allows maritime migration law enforcement operations by the United States if, as provided for in Art. 5, para. 2, there is the authorization by an embarked Dominican shiprider to enter into Dominican waters. In the second case, the Dominican Republic authorizes the United States to board, address enquiries, inspect the documents of and search the suspect vessel and the persons found on board (Art. 8, para. 1). If evidence of unsafe transport of migrants by sea or smuggling of migrants is found, the United States may detain the vessel and the persons on board, pending expeditious disposition of instructions from the Dominican Republic (Art. 8, para. 2).
The right to exercise jurisdiction, which is primarily granted to the Dominican Republic, can be waived in favour of the United States:
In all cases arising in Dominican waters, or concerning Dominican flag vessels seaward of any State’s territorial sea the Government of the Dominican Republic shall have the primary right to exercise jurisdiction over a detained vessel, cargo and/or, subject to Article 10 of this Agreement, persons on board (including repatriation, seizure, forfeiture, arrest, and prosecution), provided, however, that the Government of the Dominican Republic may, subject to its Constitution and laws, waiver its primary right to exercise jurisdiction and authorize the enforcement of United States law against the vessel, cargo and/or persons on board (Art. 9, para. 1).
Italy and Libya
On 29 December 2007 Italy and Libya concluded in Tripoli a Protocol to Face the Phenomenon of Clandestine Immigration.31 It aims at implementing the Agreement on Collaboration in the Fight against Terrorism, Organized Crime, Illegal Trafficking of Drugs and Psychotropic Substances and Clandestine Immigration, previously concluded by the two countries in Rome on 13 December 2000.32 The Protocol acknowledges in the preamble that Libya faces great problems because it is a transit country for migrants and it has to control more than 5,000 km of land borders in the desert and more than 2,200 km of borders at sea.
Under the Protocol, Italy and Libya bind themselves to organize maritime patrolling activities using six ships temporarily ceded by Italy to Libya which have on board a mixed crew. However, the Italian police personnel can only engage in the training and formation of the Libyan crews, as well as in the technical assistance and maintenance of the ships. The activities of control, search and rescue allowed by the Protocol can be undertaken in the localities of departure and transit of ships transporting clandestine migrants, as well as within the Libyan territorial sea33 and on the high seas, in compliance with international treaties in force and according to the operational modalities to be agreed upon.
The Protocol is supplemented by an additional protocol of a technical and operational character, also concluded on 29 December 2007. The additional protocol specifies that the activities to be carried out relate to the ‘prevention and countering of illegal migratory flows’, something that does not fully correspond to the activities of ‘control, search and rescue’ mentioned in the main Protocol. The additional protocol also provides that the command of the ships ceded by Italy to Libya is exercised by Libyan personnel, who are responsible for the actions undertaken. A further Protocol has been concluded on 4 February 2009, stating that the two countries will organize maritime patrols with joint crews, to be conducted in Italian, Libyan and international waters. They also undertake to repatriate clandestine immigrants and to conclude agreements with the countries of origin in order to limit clandestine immigration.34
Unlike the three bilateral treaties described above, the instruments agreed upon by Italy and Libya do not establish any derogations to the rules of the international law of the sea on the exercise of jurisdiction on the high seas or in the territorial sea. They only provide technical assistance by one party to the activities against illegal migration carried out by the other party.
The Safety of Life at Sea
The duty to render assistance to persons in danger at sea is an expression of the principle of protection of human life which has a longstanding tradition in maritime custom. It can be included among the general principles of law, as recalled in Art. 38, para. 1, c, of the Statute of the International Court of Justice. It can be understood as a manifestation of the human right to life set forth in the relevant multilateral treaties, such as Art. 2, para. 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 1950; more commonly known as the European Convention on Human Rights) or Art. 6, para. 1, of the International Covenant on Civil and Political Rights (New York, 1966). It is specifically provided for in several treaties applicable to activities taking place at sea.
The beneficiaries of the right to be assisted at sea are all persons who are in distress, irrespective of the nationality of the ship and of the legality of the activity in which they engage, be they stowaways, migrant smugglers, drugs or weapons or slave traffickers, pirates or terrorists. In the case of migration by sea, the right to be assisted is of paramount importance, as migrants are often transported in inhuman conditions by unseaworthy and overcrowded water craft and are exposed to the dangers caused by bad weather, starvation, dehydration and illness. In too many cases, the illegal migrant is at the same time a person in distress at sea.
Rescue under the UNCLOS Regime
The duty to render assistance to persons in danger at sea, is provided for in the UNCLOS. It is not limited to rescuing and taking on board persons in distress, but has a broader scope and includes the obligation of coastal states to organize a search and rescue service:
1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;
(c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.
2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose (Art. 98).
Even though Art. 98 is included in UNCLOS Part VII (high seas), the duty to render assistance at sea has a broader application and covers any kind of marine waters, irrespective of their legal status. This is confirmed by Article 18, para. 2, UNCLOS, which provides that the right of innocent passage through the territorial sea of foreign states is compatible with a stop to render assistance to people in distress.35
While every state is bound to assist people in distress at sea, the flag state is bound to ensure that ships having its nationality navigate under appropriate safety conditions. This is also a manifestation of the duty to protect human life at sea. Under Article 94, para. 3, UNCLOS,
every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:
(a) the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments;
(c) the use of signals, the maintenance of communications and the prevention of collisions.
Art. 94, para. 4, further specifies what kind of measures, relating to surveys of ships and qualification of masters and crews, are required to ensure safety at sea. Under Art. 94, para. 5, the measures in question must comply with generally accepted standards, in particular those resulting from the multilateral treaties adopted within the framework of the competent international organization (that is the International Maritime Organization36). In this way the treaties in question indirectly acquire a binding character on all UNCLOS parties.
In fact, too many tragic events show that often ships transporting illegal migrants do not meet the required safety conditions. If migrants travel in conditions that endanger their lives, every state can intervene on the ships in question to rescue and assist the people in peril. Such an action is justified under customary international law as an application of the rule on distress, because there is no other reasonable way to save human life.37
A number of treaties adopted within the IMO framework aim at ensuring safety at sea.38 They include the 1972 Convention on the International Regulations for Preventing Collisions at Sea, the 1974 Convention for the Safety of Life at Sea (amended several times),39 the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, the 1979 International Convention on Maritime Search and Rescue (amended in 1998 and 2004)40 and the 1989 International Convention on Salvage.
Search and rescue activities must be carried out not only by dedicated shore-based rescue units, but also by any ships that navigate in the vicinity of the ship and persons in distress. Under Art. 10, para. 1, of the International Convention on Salvage,
every master is bound, so far as he can do so without serious danger to his vessel and persons thereof, to render assistance to any person in danger of being lost at sea.
The main obligation established by the SAR Convention is that
Parties shall ensure that assistance is provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found (Chap. 2.1.10).
The definition of the term ‘search’ given by the Annex to the SAR Convention show that the parties are called to establish rescue centres in charge of the co-ordination of search operations:
‘Search’. An operation, normally co-ordinated by a rescue co-ordination centre or rescue sub-centre, using available personnel and facilities to locate persons in distress (Chap. 1.3.1).
Under the SAR Convention, the Parties are also called to establish by agreement search and rescue regions (Chap. 2.1.4), intended as areas ‘of defined dimension associated with a rescue co-ordination centre within which search and rescue services are provided’ (Chap. 1.2.4).41 The party accepting the responsibility to provide search and rescue services for a specified area is bound to ‘use search and rescue units and other available facilities for providing assistance to a person who is, or appears to be, in distress at sea’ (Chap. 2.1.9).42
The obligations incumbent on parties are not limited to the retrieving of persons in distress, but extend to their delivery to ‘a place of safety’, as confirmed by the definition of ‘rescue’ given by the Annex to the SAR Convention:
‘Rescue’. An operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety (Chap. 1.3.2).
The thorny question left open by the SAR Convention, and by other treaties providing for assistance at sea as well, is how to determine where the place of safety is located and consequently where the rescued persons are to be delivered. In fact, after being taken on board, the rescued people do not dematerialize, but they continue to exist and should be delivered somewhere. The presence on board of many people may raise problems of overcrowding, lack of food and water or spreading of infectious diseases that make the disembarking of the rescued persons an urgent need. If the operation has been carried out by a private ship, the master may have an interest in not further delaying the voyage, considering that the ship-owner has already incurred the burden of searching and rescuing people in distress.43 The rescued people may have some good reasons, such as the fear of persecution, to ask not to be disembarked in a certain state. In the absence of precise legal provisions, different views as to the location of the place of safety can be held by the several states that may be involved in the rescue operation, namely the flag state, the state responsible for the search and rescue region, the state in whose exclusive economic zone or territorial sea the search and rescue operations have taken place, the states of nationality of the rescued persons, the state from where the rescued ship has sailed and perhaps also other states.
The SAR Convention, as amended in 2004, does address the question of the location of the place of safety. But it does not provide a clear-cut answer to it:
Each Party should authorize its rescue co-ordination centres: …
Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ intended voyage, provided that releasing the ship from these obligations does not further endanger the safety of life at sea. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably possible (Chap. 3.1.9).
The rescue co-ordination centre or rescue sub-centre concerned shall initiate the process of identifying the most appropriate place(s) for disembarking persons found in distress at sea. It shall inform the ship or ships and other relevant parties concerned thereof (Chap. 4.8.5).
From these provisions it appears that all parties to the SAR Convention, depending on the circumstances, are called upon to coordinate themselves and cooperate in order that the rescued persons are disembarked and delivered to a place of safety. However, the party responsible for the search and rescue region is not bound to disembark the persons in its own territory. Nor, at least if the provisions are understood literally, is it bound to find another state where they can be disembarked. It must only exercise a ‘primary responsibility’ to ensure that the expected coordination and cooperation among parties occur in order to deliver the rescued people to a place of safety, taking into account the interest of minimizing any further deviation from the assisting ships’ intended voyage. Such a convoluted wording can only imply that, at the moment of amending the Annex to the SAR Convention, the parties were not able to reach a sufficiently clear and generally agreed solution to the thorny problem of the location of the place of safety.
As stated by the International Court of Justice, an obligation to cooperate implies a duty to act in good faith in order to reach an agreement on matters of common interest or concern.44 If the states concerned comply with the obligation to act in good faith, it is likely that an agreement will be reached. However, there cannot be a legal guarantee that such a result will be achieved in any single case.
The SOLAS Convention provides as follows for cases of distress:
The master of a ship at sea which is in a position to be able to provide assistance, on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so. This obligation to provide assistance applies regardless of the nationality or status of such persons or the circumstances in which they are found (Regulation 33-1).
Masters of ships who have embarked persons in distress at sea shall treat them with humanity, within the capabilities and limitations of the ship (Regulation 33-6).
A provision has been included in the 2004 SOLAS amendments to relieve the master from the risk of personal liability:
The owner, the charterer, the company operating the ship … or any other person shall not prevent or restrict the master of the ship from taking or executing any decision which, in the master’s professional judgement, is necessary for safety of life at sea and protection of the marine environment (Regulation 34-1).
Again, on the thorny question of the determination of the place of safety, the SOLAS Convention, as amended in 2004, provides for a regime quite close to the regime established under the SAR Convention. The remarks made above can consequently be repeated also for the SOLAS Convention.
Taking into account the amendments to the SAR and SOLAS Conventions, in 2004 the Maritime Safety Committee of IMO adopted under Resolution MSC.167(78) a set of Guidelines on the Treatment of Persons Rescued at Sea. This was done ‘realizing the need for clarification of existing procedures to guarantee that persons rescued at sea will be provided a place of safety regardless of their nationality, status or the circumstances in which they are found’. Without having a mandatory character, the Guidelines aim at providing guidance to governments and shipmasters, based on the assumption that the master who rescues people at sea, as he is bound to do, should not be left alone by the states concerned.45
According to Guideline 2.5, the intent of the 2004 amendments to the SAR and SOLAS Conventions is to ensure that in every case a place of safety is provided within a reasonable time’. The responsibility to provide such a place or to ensure that it is provided ‘falls on the Government responsible for the search and rescue region in which the survivors were recovered’. As each case involves different circumstances, states should be given enough flexibility to address each situation (Guideline 2.6).
The Guidelines specify the behaviour that is expected from the shipmaster and the states concerned. The former should, inter alia,
understand and heed obligations under international law to assist persons in distress at sea (such assistance should always be carried out without regard to the nationality or status of the persons in distress, or to the circumstances in which they are found);
do everything possible, within the capabilities and limitations of the ship, to treat the survivors humanely and to meet their immediate needs; …
keep the RCC [rescue coordination centre] informed about conditions, assistance needed, and actions taken or planned for the survivors …;
seek to ensure that survivors are not disembarked to a place where their safety would be further jeopardized; and
comply with any relevant requirements of the Government responsible for the SAR [search and rescue] region where the survivors where recovered, or of another responding coastal State, and seek additional guidance from those authorities where difficulties arise in complying with such requirements (Guideline 5.1).
As to the states concerned, the state responsible for the search and rescue region is called upon to exercise a sort of primary responsibility to arrange for a place of safety:
When the RCC responsible for the SAR region in which assistance is needed is informed about the situation, that RCC should immediately accept responsibility for co-ordinating the rescue efforts, since related responsibilities, including arrangements for a place of safety, fall primarily on the Government responsible for that region (Guideline 6.7).
All States Parties are called upon to co-operate to achieve the objective of promptly disembarking the rescued people:
Governments and the responsible RCC should make every effort to minimize the time survivors remain on board the assisting ship (Guideline 6.8).
Responsible State authorities should make every effort to expedite arrangements to disembark survivors from the ship; however, the master should understand that in some cases necessary co-ordination may result in unavoidable delays (Guideline 6.9).
The type of information that should be provided by the master to the rescue and coordination centre shows that the concerns of the assisting ship should also be taken into account, as well as the master’s preference about the disembarkation of the survivors. But it is sufficiently clear that it is not for the master of the assisting ship alone to decide where the survivors shall be disembarked:46
The RCC should seek to obtain the following information from the master of the assisting ship:
information about the survivors, including name, age, gender, apparent health and medical condition and any special medical needs;
the master’s judgment about the continuing safety of the assisting ship;
actions completed or intended to be taken by the master;
assisting ship’s current endurance with the additional persons on board;
assisting ship’s next intended port of call;
the master’s preferred arrangements for disembarking the survivors;
any help that assisting ship may need during or after the recovery operation; and any special factors (e.g., prevailing weather, time sensitive cargo) (Guideline 6.10).
Potential health and safety concerns aboard a ship that has recovered persons in distress include insufficient lifesaving equipment, water, provisions, medical care, and accommodations for the number of persons on board, and the safety of the crew and passengers if persons on board might become aggressive or violent. … (Guideline 6.11).
The Guidelines explain that the assisting ship cannot be understood as a place of safety47 and that such a place is to be considered as an intermediate location between the assisting ship and the final destination of the rescued persons:
A place of safety … is a location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination (Guideline 6.12).
A place of safety may be on land, or it may be aboard a rescue unit or other suitable vessel or facility at sea that can serve as a place of safety until the survivors are disembarked to their next destination (Guideline 6.14).
However, despite all the efforts to address the question, the Guidelines could not clearly specify what the SAR and SOLAS Conventions were not able to specify, that is which state is under the obligation to provide a place of safety and where such place is located. Hopefully, the problem would be solved through international cooperation, taking into account a number of relevant circumstances:
Governments should co-operate with each other with regard to providing suitable places of safety for survivors after considering relevant factors and risks (Guideline 6.16).