Some comments on relevant international law
- A shipmaster’s obligation to render assistance at sea is a longstanding maritime tradition. It is an obligation that is recognized by international law. Article 98 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) codifies this obligation in that 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 … to render assistance to any person found at sea in danger of being lost …”. in addition to imposing an obligation on States to “promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea …”.
- The SAR Convention defines rescue as “an operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety.” SAR services are defined as “the performance of distress monitoring, communication, co-ordination and search and rescue functions, including provision of medical advice, initial medical assistance, or medical evacuation, through the use of public and private resources including co-operating aircraft, vessels and other craft and installations.” SAR services include making arrangements for disembarkation of survivors from assisting ships. The SAR Convention establishes the principle that States delegate to their rescue co-ordination centres (RCCs) the responsibility and authority to be the main point of contact for ships, rescue units, other RCCs, and other authorities for co-ordination of SAR operations. The SAR Convention also discusses, with regard to obligations of States, the need for making arrangements for SAR services, establishment of RCCs, international co-operation, RCC operating procedures, and use of ship reporting systems for SAR.
- The SAR Convention does not define “place of safety”. However, it would be inconsistent with the intent of the SAR Convention to define a place of safety solely by reference to geographical location. For example, a place of safety may not necessarily be on land. Rather, a place of safety should be determined by reference to its characteristics and by what it can provide for the survivors. It is a location where the rescue operation is 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.
- The SOLAS Convention regulation V/33.1 provides that 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.” Comparable obligations are contained in other international instruments. Nothing in these guidelines is intended in any way to affect those obligations. Compliance with this obligation is essential in order to preserve the integrity of search and rescue services. The SOLAS Convention, Article IV (cases of force majeure) protects the shipmaster insofar as the existence of persons on board the ship by reason of force majeure or due to the obligation for the master to carry shipwrecked or other persons, will not be a basis for determining application of the Convention’s provisions to the ship. The SOLAS Convention also addresses in chapter V, regulation 7, the responsibility of Governments to arrange rescue services.
- As a general principle of international law, a State’s sovereignty allows that State to control its borders, to exclude aliens from its territory and to prescribe laws governing the entry
of aliens into its territory. A State’s sovereignty extends beyond its land territory and internal waters to the territorial sea, subject to the provisions of UNCLOS and other rules of international law. Further, as provided in Article 21 of UNCLOS, a coastal State may adopt laws and regulations relating to innocent passage in the territorial sea to prevent, among other things, the infringement of that coastal State’s immigration laws.
- Pursuant to Article 18 of UNCLOS, a ship exercising innocent passage may stop or anchor in the coastal State’s territorial sea “only in so far as the same are incidental to ordinary navigation or are rendered by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.” UNCLOS does not specifically address the question of whether there exists a right to enter a port in cases of distress, although under customary international law, there may be a universal, albeit not absolute, right for a ship in distress to enter a port or harbour when there exists a clear threat to safety of persons aboard the ship. Such threats often worsen with time and immediate port entry is needed to ensure the safety of the vessel and those onboard. Nevertheless, the right of the ship in distress to enter a port involves a balancing of the nature and immediacy of the threat to the ship’s safety against the risks to the port that such entry may pose. Thus, a coastal State might refuse access to its ports where the ship poses a serious and unacceptable safety, environmental, health or security threat to that coastal State after the safety of persons onboard is assured.
- The Refugee Convention’s prohibition of expulsion or return “refoulement” contained in Article 33.1 prohibits Contracting States from expelling or returning a refugee to the frontiers of territories where his or her life or freedom would be threatened on account of the person’s race, religion, nationality, membership of a particular social group or political opinion. Other relevant international law also contains prohibition on return to a place where there are substantial grounds for believing that the person would be in danger of being subjected to torture.
- Other relevant provisions, not all of which are under the competence of IMO, inter alia, include the following:
International Convention on Maritime Search and Rescue, 1979, as amended, in entirety
International Convention for the Safety of Life at Sea, 1974, as amended, chapter V, regulation 33
Convention on Facilitation of International Maritime Traffic, 1965, in particular Section 6.C, Standards 6.8-6.10 International Convention on Salvage, 1983, Article 1
United Nations Convention on the Law of the Sea, 1982, Article 98
Resolution A.773(18) on Enhancement of safety of life at sea by the prevention and suppression of unsafe practices associated with alien smuggling by ships
Resolution A.871(20) on Guidelines on the allocation of responsibilities to seek the successful resolution of stowaway cases
Resolution A.867(20) on Combating unsafe practices associated with the trafficking or transport of migrants by sea IMO Global SAR Plan – SAR.8/Circ.1 and addenda addresses (the Admiralty List of Radio Signals, Volume 5, is a practical alternative)
United Nations Convention relating to the Status of Refugees, 1951 and its 1967 Protocol
UN Convention against Transnational Organized Crime, 2000 and its Protocols, Protocol against the smuggling of migrants by land, sea and air; and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
MSC/Circ.896/Rev.1 on Interim measures for combating unsafe practices associated with the trafficking or transport of immigrants by sea