This blog series first appeared on the Border Criminologies blog, and is re-posted here. Erik Røsæg is professor at the Scandinavian Institute of Maritime Law and member of PluriCourts. This is the third instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective.
The search and rescue activities are a subject of long-standing legal obligations and frameworks which often become muddled and entangled in the intense political debates surrounding the issue. In this post I discuss legal obligations of states related to the search and rescue. From a legal point of view, nation states can control their borders and refuse migrants to enter under certain conditions. However, states have clear obligations towards refugees and migrants before they cross the border, including assistance at sea. Even if assistance at sea may function as a “pull factor” and encourage refugees and migrants to attempt to cross the Mediterranean, there is no legal avenue for states to avoid such assistance. Moreover, if assistance is rendered, this entails further obligations towards refugees and migrants.
The duty to rescue
There is a duty pursuant to international law for a ship to attempt the rescue of persons at danger at sea. This duty is based on a long-standing and strongly felt moral obligation among seafarers. This is stated, for example, in the United Nations Convention of the Law of the Sea (UNCLOS) Article 98 the International Convention for the Safety of Life at Sea (SOLAS), Regulation V-33. All states recognize this duty.
One implication of this rule is that a state cannot legally prohibit its vessels from rescuing persons at sea: states must accept that their vessels engage in rescue operations. In the International Convention on Maritime Search and Rescue (SAR), coastal states undertake the role to coordinate the SAR in respect of persons in specified areas (Article 2.3). There is a duty to organize such services (UNCLOS Article 98 and SOLAS, Regulation V-7). There are no provisions in the SAR convention that the particular state in charge of a specific area can direct foreign vessels whether to assist or not. Within the 12 nautical miles of territorial waters, the state has general jurisdiction on other grounds (including the right to direct vessels how to assist or not to assist), but this jurisdiction does not extend to ships in passage assisting other vessels (UNCLOS Articles 17-18).
It is sometimes suggested that migrant vessels heading from Africa to Europe are so unseaworthy, overloaded and in such bad shape, that they are unlikely to make it to the destination. It is thus suggested that the rules of maritime rescue do not apply. I can see no legal basis for this argument. Most likely, the majority of ships in the need of a rescue have ended up in this situation because they are unseaworthy, and it would be quite harsh that passengers should pay with their lives for not having ensured the seaworthiness of the vessel. On land, persons in danger are assisted if they have driven too fast, been the passenger of a car driven by a drunk driver, had thoughts of suicide, or caused themselves illness through bad lifestyle choices.
The maritime rules of rescue also apply to stand-by rescuers, and not solely to rescue operations initiated by, for example, freighters coincidentally passing by. As such, even the ships of humanitarian organizations deployed to the Mediterranean with no other purpose than to rescue, can invoke the rules of maritime rescue. There is a long tradition of such specialized rescuers, and this is clearly reflected in the international law of remuneration for rescue. These rules stipulate that professional salvors should receive extra remuneration to compensate for their preparedness (see for example International Convention on Salvage Article 13). These provisions would be meaningless if the rules did not apply to vessels designated purely to salvage.
In sum, there is a duty and a right to render assistance to persons in danger at sea. This duty applies regardless of whether the rescue operations are believed to have an undesired pull effect, motivating refugees and migrants to travel.
Rescuees on board
Rescuers assume primary responsibility for taking care of the rescuees, but there are limits to what they can do. If necessary, the relevant authorities must intervene. At sea, nation states have the duty to actively secure fundamental human rights. This duty was reiterated by The European Court of Human Rights, which stated in Hirsi Jamaa v Italy that the
“special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention [the European Convention on Human Rights] which the States have undertaken to secure to everyone within their jurisdiction” (Hirsi Jamaa v. Italy para. 178).
The relevant authority is principally the state with jurisdiction, which has the opportunity to take legal as well as practical actions. This is primarily the state in which the ship with the rescuees is registered, the flag state (UNCLOS, Article 92). Coastal states have such powers pursuant to the rules of the law of the sea over vessels in their internal waters (very near the coast), and (with some exceptions) over those in their territorial waters (typically within 12 nautical miles from their coast). Thus, these states can and must take action and have some responsibility for securing human rights on board.
It may be difficult to find a port that is willing to receive the rescuees. If no such port is found, the responsibility for the rescuees remains for the rescue vessels and the states having jurisdiction over it. It can be tempting in such cases to disembark the rescuees in any willing port. However, international law requires that rescuees should only be disembarked in a safe port (see Martin Ratowich, International Law and Rescue of Refugees by Sea (Stockholm, 2019)). This does not have to be a Western European port, but for example, Libyan ports are not considered safe ports in this respect (see UNHCR and IOM joint statement). Persons who may be political refugees are even better protected (via the principle of “non-refoulement”). If no willing, safe port can be found, the European coastal states and the flag states cannot pass the buck further and must take care of the rescuees.
Non-assistance to refugees and migrants at sea is not a legal option. When they are rescued, this entails some obligations for the rescuer and the states having jurisdiction over the rescuer. These obligations prevent disembarkation in an unsafe port and include a responsibility for protecting human rights of the rescuees. This is essential for the protection of migrants.
Unfortunately, even states that generally take human rights seriously often fail to honor these obligations. They ignore their responsibilities to make sure that migrants are rescued and that human rights are respected on board their vessels or visiting vessels. Furthermore, they may allow or even encourage rescuees to de disembarked in a port that is unsafe for them. This is a shameful breach of the best of humanitarian and maritime traditions.