International Law and the duty of rescue at sea

Ley internacional de rescate en el mar

1. INTERNATIONAL LAW AND
THE DUTY OF RESCUE AT SEA
Craig H. Allen
Judson Falknor Professor of Law
University of Washington
Seattle, Washington USA

2. INFORMAL MEETING AGENDA
1.The legal definition of "distress."
2.Is there / should there be a legal difference between search and rescue
and mass migration? If so, are any amendments to Conventions
required?
3.Are requirements for coastal state monitoring of vessels during a mass
migration adequate?
4.Are procedures and guidelines for merchant vessels conducting mass
migration operations at sea adequate?
5.Are policies and procedures for disembarkation of migrants adequate? If
not, are amendments to Conventions required?
6.What costs, if any, should merchant vessels assisting in mass migration
operations recover? Are amendments to Conventions required?
7.Are the legal immunities for private ships, companies and personnel
conducting mass migration operations adequate? Are amendments to
Conventions required?
Source: IMO Circular Letter No. 3572 Annex I.

3. GOALS OF THE INTERNATIONAL
REGIME
Protect State
Sovereignty and
Border Security
Protect
Individual
Rights/Dignity
Maritime Safety
and Security
Prevent/Combat
Transnational
Crime
Facilitate
Maritime
Commerce
IMO Res. MSC.167(78) (2004) ¶ 6.21: “issues other than rescue relating to
asylum seekers, refugees and migratory status are beyond the remit of the
IMO, and beyond the scope of the SOLAS and SAR Conventions.”

4. LOCATING THE MIXED MIGRATION
PROBLEM
•State of Origin/Nationality Concerns/Obligations
•Intermediate States’ Concerns/Duties
1. Flee/Emigrate
•Port of Embarkation State’s Concerns/Obligations
•Carrying Vessel’s Flag State’s Concerns/Duties
2. Embark Vessel
•Search and Rescue Region (SRR) State’s Duties/Concerns
•Carrying Vessel’s Flag States’ Concerns/Duties
3. Distress at Sea
•Search and Rescue Region (SRR) State’s Duties
•Assisting Vessel’s Flag States’ Concerns/Duties
4. Rescue
•Assisting Vessel’s Flag States’ Concerns/Duties
•Receiving State’s Concerns/Duties
5. Disembark
•Processing States’ Concerns/Duties
•“Cooperating” States’ Concerns/Duties
6. Process
•Intermediate States’ Concerns/Duties
•State of Eventual Settlement Concerns/Duties
7. Settlement
The incident might also lead to an interdiction and prosecution.

5. UNCLOS
SOLAS SAR SALCON FAL
UN
CHARTER
As amended effective 2006, following
Res. A.920(22)(2002) review and issuance of MSC.167(78),
Guidelines on the treatment of persons rescued at sea.
INTERNATIONAL
HUMAN RIGHTS AND
REFUGEE LAW
TOC CONVENTION
MIGRANT
SMUGGLING
PROTOCOL
APPLICABLE INTERNATIONAL LAW

6. 1982 UN CONVENTION ON
THE LAW OF THE SEA (UNCLOS)
•Entered into force in 1994; 166 states-parties.
•Not easily amended.
•UNCLOS is a framework; it does not displace:
–Customary international law.
–Other treaties compatible with UNCLOS (e.g., SOLAS, SAR).
•UNCLOS SAR Related Duties:*
–Article 98(1): Flag State shall require master to render
assistance and to rescue persons in distress at sea.
–Article 98(2): Coastal State shall “promote” SAR.
* Note: the SAR and SOLAS Conventions predate the 1982 UNCLOS Convention
but the UNCLOS Article 98 duties were carried forward from the 1958 CHS.

7. SELECTED REFERENCES TO “DISTRESS”
•UNCLOS Articles 18, 39, 98, 109 (and incorporated by
reference in Articles 45, 54).
•SOLAS, Ch. III, Reg. 3; Ch. IV, Reg. 2(2), 4; and Ch. V, Regs. 7,
8, 29, 33, 35.
•SAR Convention (Annex and IAMSAR Manual).
•Chicago Convention on Civil Aviation, Art. 25.
•Int’l Law Comm’n Articles on State Responsibility, Art. 24.
•Various Bilateral Friendship, Commerce and Nav. Treaties.
•See also Cargo Liability Conventions (generally excluding
liability for cargo damage resulting from “saving or
attempting to save life or property at sea.”).
See Walker, Definitions for the Law of the Sea (Terms Not Defined by 1982 UNCLOS)
(NijHoff Publ. 2012), at 169-175 (American Branch of Int’l Bar Association).

8. UNCLOS ARTICLE 98(1)
DUTY TO RENDER ASSISTANCE
•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;
Carried forward, with some changes, from
Article 12(1) of the 1958 Convention on the High Seas.
See also SOLAS Regulation V/33.

9. UNCLOS ARTICLE 98(2)
DUTY TO RENDER ASSISTANCE
•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 neighboring
States for this purpose.
Carried forward, with some changes, from
Article 12(2) of the 1958 Convention on the High Seas.
See also SOLAS Regulation V/7.1.

10. UN CONVENTION AGAINST
TRANSNATIONAL ORGANIZED CRIME
(CTOC)
•185 Parties to CTOC; 141 Parties to Protocol (EU, Libya, Syria, Turkey).
•Protocol against the Smuggling of Migrants by Land, Sea and Air (adopted in
2000) only applies if the incident involves transnational organized crime.
–Calls on states-parties to criminalize the “smuggling of migrants” (but not the act of
illegal entry by the migrant).
–Aggravated offense if the smugglers’ acts endanger, or are likely to endanger, the lives
or safety of the migrants concerned.
–Calls upon states-parties to cooperate to the fullest extent possible to prevent and
suppress the smuggling of migrants by sea, in accordance with the international law of
the sea. Also addresses at-sea interdiction (but confers no new boarding authority).
–Calls upon states-parties to strengthen, to the extent possible, such border controls as
may be necessary to prevent and detect the smuggling of migrants [this duty extends
to embarkation states].
See also IMO Circular MSC/Circ.896/Rev.1 (duty of cooperation)

11. UN CONVENTION RELATING TO THE
STATUS OF REFUGEES (1951)
•70 States are party to Convention or Protocol.
•Defines criteria for refugee status (Art. 1A(2)), rights
of refugees and asylum seekers, and the legal
obligations of states.
•Article 33 Non-refoulement rule:
–"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.”

12. EUROPEAN HUMAN RIGHTS
CONVENTION
•Hirsi v. Italy (ECHR 2012) facts: In 2009, during the Libyan armed
conflict, Italian government vessels intercepted vessels on the high
seas carrying migrants (mostly Somalis and Eritreans) off the coast
of Libya and returned them to Libya. None had claimed asylum.
•Holding by the European Court of Human Rights:
–Italy had ‘jurisdiction’ over the migrants aboard the Italian vessels in
international waters under Article 1 of the EHRC (rejecting a “SAR
exception” to jurisdiction).
–Accordingly, Italy had a duty to uphold human rights of those aboard the
vessels and to protect them from being disembarked in a state where
they risk suffering serious harm.
–Italy was ordered to compensate migrants €15,000 each, but only one
judge would have required Italy to admit them until a asylum
determination could be made.

13. CONVENTION ON FACILITATION OF
INTERNATIONAL MARITIME TRAFFIC
(1965)•115 states-parties representing 90.77 % of the
world's fleet by tonnage.
•See FAL Convention Annex (as amended in 2005):
–Section 2, ¶ H: Special measures of facilitation for ships
calling at ports in order to put ashore … persons rescued
at sea;
–Section 7, ¶ C: Emergency Assistance.
–See also FAL.3/Circ.194 (Jan. 22, 2009) Principles relating
to administrative procedures for disembarking persons
rescued at sea.

14. SOLAS 74/78
•162 states-parties representing 98% of ships.
•Art. VIII tacit acceptance amendment procedure for Chapters II-XII
(not Convention articles or Chapter I).
•Principal Search and Rescue (SAR) related regulations:
–Reg. V/7: Coastal State Search and Rescue Services (see also UNCLOS
art. 98(2)).
–Reg. V/33: Distress Situations; obligations and procedures (see also
UNCLOS art. 98(1)).
–2006 Amendments adopted in IMO Res. MSC.153(78) (2004).
•See also:
–Article IV: Application of SOLAS in cases of force majeure.
–Reg. III/17-1: Recovery of persons from the water.
–Reg. V/21: IAMSAR Manual carriage requirement.

15. SOLAS REGULATION V/7:
SEARCH AND RESCUE SERVICES
•1. Each Contracting Government undertakes to ensure that
necessary arrangements are made for distress
communication and co-ordination in their area of
responsibility and for the rescue of persons in distress at sea
around its coasts.
•These arrangements shall include the establishment,
operation and maintenance of such search and rescue
facilities as are deemed practicable and necessary, having
regard to the density of the seagoing traffic and the
navigational dangers and shall, so far as possible, provide
adequate means of locating and rescuing such persons.
SOLAS Chapter V can be amended by tacit acceptance procedure.
But the corresponding Article 98(2) in UNCLOS cannot.

16. SOLAS REGULATION V/33: DISTRESS
SITUATIONS; OBLIGATIONS AND
PROCEDURES •¶ 1: Master’s obligation to assist.
•¶ 1.1: Contracting Governments’ obligations.
•¶ 2. Requisitioning other SAR assets.
•¶ 3. Release of assisting vessel.
•¶ 6. Masters of ships who have embarked persons in
distress at sea shall treat them with humanity, within
the capabilities and limitations of the ship.*
* See IMO Res. MSC.167(78): Guidelines on the treatment of persons
rescued at sea–adopted by the MSC on 20 May 2004.

17. SOLAS REGULATION V/33
•1. 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.
SOLAS Chapter V can be amended by tacit acceptance procedure.
But the corresponding Article 98(1) in UNCLOS cannot.

18. ADEQUACY OF PROCEDURES AND
GUIDELINES FOR MERCHANT VESSELS
•Res. MSC.167(78):
Guidelines on treatment of
persons rescued at sea.
•IAMSAR Manual Volume III.
•IMO/UNHCR/ICS: Rescue at
Sea: A Guide to Principles
and Practice as Applied to
Migrants and Refugees (2015
update).
•ICS: Large Scale Rescue
Operations at Sea (2015).

19. LIMITED CIVIL IMMUNITY OF ASSISTING
VESSELS•Immunity law is a “patchwork”; some examples:
–1989 Salvage Convention, Article 10(3) [owner immunity].
–Hague and Rotterdam Rules [excluding liability for cargo damage
resulting from “saving or attempting to save life at sea.”;
deviations to save life are per se “reasonable.”].
–[United States] 46 U.S.C. § 2303(c): An individual … gratuitously
and in good faith rendering assistance at the scene of a marine
casualty without objection by an individual assisted, is not liable
for damages as a result of rendering assistance or for an act or
omission in providing or arranging salvage, towage, medical
treatment, or other assistance when the individual acts as an
ordinary, reasonable, and prudent individual would have acted
under the circumstances.
National laws on immunity of public vessels are not uniform.

20. SOLAS REGULATION V/33*
•1.1: Contracting Governments 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 master of the ship from the obligations under the
current regulation does not further endanger the safety of life at sea.
•The Contracting Government 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 Contracting Governments shall arrange for
such disembarkation to be effected as soon as reasonably practicable.
* As amended, effective 2006.

21. SOLAS REGULATION V/33
•2. The master of a ship in distress or the search and
rescue service concerned, after consultation, so far as
may be possible, with the masters of ships which answer
the distress alert, has the right to requisition one or more
of those ships as the master of the ship in distress or the
search and rescue service considers best able to render
assistance, and it shall be the duty of the master or
masters of the ship or ships requisitioned to comply with
the requisition by continuing to proceed with all speed to
the assistance of persons in distress.
Ship masters complain that they are sometimes directed by an RCC to
surveil migrant vessels that are not in distress, resulting in significant delays.

22. SOLAS REGULATION V/33*
• 3. Masters of ships shall be released from the obligation
imposed by paragraph 1 on learning that their ships have not
been requisitioned and that one or more other ships have
been requisitioned and are complying with the requisition.
This decision shall, if possible be communicated to the other
requisitioned ships and to the search and rescue service.
•4. The master of a ship shall be released from the obligation
imposed by paragraph 1 and, if his ship has been
requisitioned, from the obligation imposed by paragraph 2 on
being informed by the persons in distress or by the search and
rescue service or by the master of another ship which has
reached such persons that assistance is no longer necessary.
See also SAR Convention ¶ 3.1.9.

23. 1989 SALVAGE CONVENTION
•Article 10: Duty to render assistance
1. Every master is bound, so far as he can do so without
serious danger to his vessel and persons thereon, to
render assistance to any person in danger of being lost
at sea.
2. The States Parties shall adopt the measures necessary
to enforce the duty set out in paragraph 1.
3. The owner of the vessel shall incur no liability for a
breach of the duty of the master under paragraph 1.

24. INTERNATIONAL CONVENTION ON
MARITIME SEARCH & RESCUE (“SAR
CONVENTION”)
•Completed in 1979, entered into force in 1985.
•105 states-parties representing 82% of vessels.
•Article III: Amendments:
–III(f): Selected provisions are subject to amendment by Tacit
Acceptance (however, states that object to the amendment are
not bound. See Art. III(h)).
–III(e): Other amendments require approval by 2/3 of states-
parties.
•The SAR Convention’s details are in the Convention’s Annex.
•Convention must be applied in conjunction with the International
Aeronautical and Maritime Search and Rescue (IAMSAR) Manual.

25. SAR CONVENTION 2006
AMENDMENTS*•Chapter 3: new paragraph 3.1.9 addresses
cooperation relating to assistance to the master in
delivering persons rescued at sea to a place of
safety.**
•Chapter 4: new paragraph 4.8.5 relating to RCC’s
process in identifying the most appropriate place
from disembarking persons found in distress at sea.
•Did not attempt to define “distress” or address
problems of self-inflicted distress.
*See IMO Res. MSC.155(78) (2004).
** See ¶¶ 6.12-6.18 of IMO Res. MSC.167(78) (place of safety).

26. SAR CONVENTION ANNEX
•¶ 2.1.1 Parties shall, as they are able to do so individually or in
co-operation with other States and, as appropriate, with the
Organization, participate in the development of search and
rescue services to ensure that assistance is rendered to any
person in distress at sea.
•(cont.) On receiving information that any person is, or appears
to be, in distress at sea, the responsible authorities of a Party
shall take urgent steps to ensure that the necessary assistance
is provided.
•¶ 2.1.10: They shall do so regardless of the status of such a
person or the circumstances in which that person is found.
This provision may be amended by Tacit Acceptance. See Art. III(f).

27. MEDITERRANEAN SEARCH AND
RESCUE REGIONS (SRR’S)
SRR: An area of defined dimensions associated with an RCC,
within which SAR services are provided.

28. SAR CONVENTION ANNEX
•3.1.9: 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 master of the ship from these
obligations does not further endanger the safety of
life at sea.
¶ 3.1.9 was added to the Annex by tacit acceptance procedure.
See also SOLAS Regulation V/33.3, & .4 (parallel provision).

29. SAR CONVENTION ANNEX
•3.1.9. 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 [International Maritime] Organization.
•In these cases, the relevant Parties shall arrange for such
disembarkation to be effected as soon as reasonably
practicable. What if no disembarkation agreement is reached?
See Guidelines on the Treatment of Persons Rescued at Sea, Res. MSC.167(78) (2004):
Ҧ2.5: The responsibility to provide a place of safety, or to ensure that a place of
Safety is provided, falls on the Government responsible for the SAR region in which
the survivors were recovered.” [Note: this is only a Guideline].

30. POTENTIAL PLACES OF
DISEMBARKATION1.Port in the flag state of rescuing vessel.
2.Closest port to place of rescue.
3.Rescuing vessel’s next port of call or other port selected by rescuing
vessel’s master.
4.Port where rescued persons embarked or state of origin.
5.Port preferred by rescued persons.
6.Port in state responsible for SRR where rescue took place.
7.Port designated by the SRR state, exercising its “primary responsibility”
under SAR Annex ¶ 3.1.9.
8.Other state acting in “co-ordination” and “co-operation” with rescuing
states, following SRR-led process in SAR Annex ¶ 4.8.5.
9.Port pre-designated by prior regional agreement (in conjunction with
processing and resettlement agreement).
Must be a “place of safety.”