Maritime rescue operations in the Mediterranean
By Erik Røsæg.
The public debate about ongoing volunteer rescue operations of migrants from northern Africa heading for Europe has been rather confused. This is an attempt to clarify the legal framework for European states’ ethical and political decisions in this respect.
There is a duty pursuant to international law for a ship to attempt the rescue of persons at danger at sea1, based on a long-standing and strongly felt moral obligation among seafarers. International law applies to states but not, for example, to masters of vessels. The obligation of states pursuant to international law must in many states therefore be fulfilled by implementing said international duty into national law, for example in the criminal code2.
One implication of this rule is that a state cannot legally prohibit its vessels from rescuing persons at sea since that would be a violation of the duty to rescue accepted by that state in the United Nations Convention of the Law of the Sea (UNCLOS). States must accept that their vessels engage in rescue operations. More practically, sanctions such as disqualifying a vessel from a flag or ship registry because it has or will engage in rescue operations would be a violation of the relevant duties under international law3.
It is sometimes submitted that migrant vessels heading from Africa to Europe are so unseaworthy, that is they are so overloaded and in such bad shape, that they are unlikely to make it and that the rules of maritime rescue therefore do not apply4. I can see no legal basis for this whatsoever. Most likely, the majority of such ships that are in need of rescue have ended up in this situation because they are unseaworthy, and it would be remarkable if passengers should pay with their lives for not having ensured the seaworthiness of the vessel they are on. On land, persons in danger are assisted if they have driven too fast, been the passenger of 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 purpose other than 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, or the conventions of salvage. These rules provide that professional salvors should receive extra remuneration to compensate for their preparedness5. These provisions would be meaningless if the rules did not apply to vessels designated purely to salvage.
In the International Convention on Maritime Search and Rescue (SAR), coastal states undertake to coordinate SAR in respect of persons in specified areas6, and the Mediterranean is divided between coastal states for this purpose7. However, there are no provisions in the SAR convention that the particular state in charge of an area can direct foreign vessels how to or not to assist. Within the 12 nautical miles of territorial sea, the state does have some jurisdiction to give such instruction, but even this does not extend to ships in innocent passage, including those assisting other vessels8.
The EU coast guard, Frontex, operates under the same conditions9, and EU law does not extend the international competence of EU states. The EU states could agree that ships flying their flags should operate under the orders of Frontex, for example when performing salvage in international waters, but they have not done so.
In sum, there is a duty and a right to render assistance to persons in danger at sea which also applies to volunteer vessels expressly designated to rescue persons in fragile vessels attempting to cross from Africa to Europe.
Rescuees on board
When rescuees are on board a rescue vessel, they are not in a legal vacuum. It is generally recognized that they should be treated well and with dignity and that their safety must be ensured10. However, one cannot expect cruise ship accommodation in an emergency. Rescuees on board a rescue vessel may have to remain there in crowded conditions with few supplies for a long time because no state will allow disembarkation. In such extreme situations, their rights will often be violated.
Rescuers assume primary responsibility for taking care of the rescuees, but there are limits to what they can do, and, in such cases, the relevant authorities must intervene. A state has a duty activity to secure fundamental rights11, and appropriate action may include providing supplies, medical teams, and shelter as well as negotiating and facilitating disembarkation in a safe port.
The relevant authority is principally the state with jurisdiction, which has the opportunity to take legal as well as practical action. The flag state has jurisdiction over a vessel wherever it is12, while coastal states have jurisdiction pursuant to the ordinary rules of the law of the sea over vessels in their internal waters, and over those in their territorial waters if not in innocent passage13.
Politicians sometimes maintain that the flag or coastal state has no responsibility for rescuees on board vessels and leave the rescue vessel to resolve the problem14. However, the norms of rescuee treatment are the norms of international law by which the states are bound. For example, the flag state’s responsibilities, and those of any other state with jurisdiction, are very clear if the human rights of the rescuees are violated. The European Convention on Human Rights (ECHR) applies within the jurisdiction of the states parties15, and states parties must protect human rights if they have the jurisdiction to do so16. To illustrate this by means of an extreme example: a state cannot legally accept an interrogation center that implements torture on board one of its vessels.
Even if the ECHR applies according to flag state jurisdiction, this does not necessarily mean that a vessel should be considered in all respects in the same way as the territory of the state party, as explored in section 3 below. However, it is difficult to see why a flag state should not use its jurisdiction to ensure that rescuees’ human rights are protected. 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 which the States have undertaken to secure to everyone within their jurisdiction”17.
It may be difficult for a state to see and control what occurs on board its vessels in remote locations, and there is a limit to the efforts a state can make to discover and prevent human rights abuses even within its jurisdiction. However, in the situations here discussed, the problem is not a lack of knowledge or ability. In cases of crowded rescue vessels, the rescuees have certain rights under international law; it is for the flag state, and any other state with jurisdiction, to ensure that these rights are protected.
A suitable port for disembaration
For those on board, it is desirable to disembark the rescuees as soon as possible. However, they cannot be disembarked anywhere. Details will not be discussed here, but the general rule is that rescuees should be disembarked in a safe port18. For example, disembarkation cannot occur in a war zone or a place where rescuees will be incarcerated due to their attempted migration. There is, however, no requirement that rescuees have to be disembarked in a prosperous, well-organized, or democratic state.
In addition, the rules of non-refoulement apply to rescuees on board a rescue ship by which the return of a refugee (in a wide sense) to a place where he or she risks further prosecution is prohibited. Alternatively, one could consider the position of rescuees as similar, for example, to that of air passengers rejected at embarkation because they have no visa, regardless of whether they intend to apply for asylum and of the fate that awaits them. However, in maritime rescue, the European Court of Human Rights has ruled that persons cannot simply be pushed back to where they came from without ascertaining that there will be no further prosecution19.
The rules of non-refoulement therefore prohibit governments from disembarking rescuees in ports unless it is ascertained that they will not suffer further prosecution. Does this also prevent non-government rescuers from doing the same, and do the rules require the flag state to intervene if this happens? The efficacy of the rules require that a government with jurisdiction, typically the flag state, prevents such disembarkations and certainly that such governments do not advise vessels to disembark rescuees where they could not have done so themselves20.
In sum, the range of ports suitable for disembarkation under international law is restricted.
Finding a port of disembarkation
When a suitable port of disembarkation has been identified, the coastal state must yet allow or disallow the disembarkation of any persons, including migrants. After the Tampa incident in 2001 where a Norwegian ship was not allowed to disembark rescuees in Australia, the International Maritime Organization addressed the issue. It was then clarified that there was no agreement that a right of disembarkation existed21.
In addition, although a state has a duty to accept the return of its own citizens, its ports may not be suitable pursuant to the criteria discussed above.
If a rescue vessel is within the jurisdiction of a state, such human rights considerations as those previously discussed may require the coastal state to allow disembarkation of the rescuees there.
It is often difficult to find a suitable disembarkation port in a state that is willing to receive rescuees. The coastal state designated by the SAR convention to oversee the rescue operations must find a safe place where the rescuees can be disembarked22. However, there is no rule that such a port must be in that same state or the one closest to the place of rescue23.
In the same way as the designated SAR state has no obligation to provide optimal rescue preparedness within its zone, it has no absolute obligation to provide a suitable port of safety. If it is not able to do so, or chooses not to comply with its obligations, the problem rests with the vessel’s flag state (see section 2)24.
Rescue vessels are not obliged to disembark migrants where advised by the SAR state that oversees the rescue in much the same way as the ship is not bound to take instructions in the first phase of rescue operations (see section 1). If a port is not safe, the rescue vessel is under obligation not to disembark the migrants there as it has an independent duty to respect human rights25.
If no suitable port of disembarkation is advised by the authorities, a rescue vessel may be unable to take more migrants on board for some time. The effect of this may be that persons in danger are not rescued at all or are rescued by vessels that return them to unsafe ports.
In sum, it is for the vessel, the flag state, and the designated SAR state to find a safe port where the rescuees can be disembarked.
Ports of emergency
While disembarkation is a matter for the coastal state, entry into territorial waters is not. It is the case that even a ship with migrants on board may be in innocent passage and therefore have a right of entry. This is important because a rescue ship in innocent passage is under (limited) jurisdiction of the coastal state, and the coastal state then has some duty to protect the human rights of those on board (see section 2). This is even more so if the vessel for some reasons stops and is no longer in passage; then the rules of innocent passage no longer limit the jurisdiction of the coastal state.
The rescue ship can enter the internal waters of a coastal state as a port of emergency or distress. This is a customary right regardless of whether the emergency is nautical in nature or due, for example, to life-threatening conditions on board26. This right to a port of emergency prevents the vessel from being expelled by force, and the master and crew cannot be prosecuted for the entry. Furthermore, the humanitarian purpose of the rule also prevents the coastal state from taking advantage of its jurisdiction based on the persons present there, for example by initiating criminal prosecution for violating rules requiring the ship not to participate in rescue operations. Press reports from Italy suggest that these rules of international law regarding ports of emergency have not been complied with27.
Formerly, EU law left the the ports of emergency rules to national courts28. However, since the EU ratified the UNCLOS29, such matters may be considered as within the competence of the European Court of Justice, although there are no explicit rules on ports of emergency in the UNCLOS itself.
In sum, the rules of ports of emergency may enable the rescue vessel to approach closer to the shoreline, thereby triggering the coastal state’s duty to intervene and protect the human rights of those on board.
Volunteers engaging in rescue operations in the Mediterranean act in line with honorable traditions and legal obligations. When rescuees are on board, they have certain rights and have to be treated with dignity; this is the responsibility of the flag state (and others). Rescuees can only be disembarked in a safe port that is willing to receive them, and the rules of non-refoulement must be respected. It is for the vessel, the flag state, and the designated SAR state to find a safe port where the rescuees can be disembarked. In some situations, particularly in an emergency, the rescue vessel can move toward a coastal state and trigger the duty of that state to protect the human rights of those on board.
1. The United Nations Convention of the Law of the Sea (UNCLOS), 1982, Article 98 and Regulation V-33 of the International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended. For all practical purposes, all European states are parties to UNCLOS. This rule is most likely, in all events, customary international law.
On the duty to rescue, see The duty to rescue at sea, in peacetime and in war: A general overview by Irini Papanicolopulu in International Review of the Red Cross 902, 491-514 (2016).
On the politics, see Sovereignty at sea: The law and politics of saving lives in the Mare Liberum by Tanja E. Aalberts and Thomas Gammeltoft-Hansen in Journal of International Relations and Development 17:4, 439-468 (2014).
For statistics, see Missing Migrants and UNHCR refugee briefs.
3. For an example of this problem, see this CNN article from 14 August 2018.
4. For example, see Skipsfart gjør Middelhavet og Persiabukten til norsk politikk by Kjetil Wiedswang on DN from 15 July 2019.
5. International Convention on Salvage, 1989, Article 13 and Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea, 1910, Article 8. The salvage rules do not apply if persons only, and not property or freight, are salved, but this does not affect my point here.
6. International Convention on Maritime Search and Rescue (SAR), 1979, as amended, Article 2.3. There is a duty to organize such services; see UNCLOS, Article 98 and SOLAS, Regulation V-7.
8. UNCLOS, Articles 17-18.
9. Basic documents for Frontex include
- Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC
- Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.
In the present context, Operation Themis, under the command of the Italian Ministry of the Interior, is important.
10. See, for example, the Charter of Fundamental Rights of the European Union (2012/C 326/02), Article 1 on the protection of dignity and SOLAS, Regulation V-33(6)
11. See the UN’s Guiding Principles on Business and Human Rights (HR/PUB/11/04, 2011), Principle 1.
12. UNCLOS, Article 92.
13. Ibid., Article 17f. Italian efforts to keep vessels with rescuees on board outside of their territorial sea is in light of this rational, and their right to do so is discussed by Efthymios Papastavridis in The Aquarius incident and the law of the sea: Is Italy in violation of the relevant rules? on EJIL: Talk! from June 2018.
14. For example, the Norwegian Prime Minster Erna Solberg was quoted in Aftenposten as saying that “Norway has no particular responsibility” for a Norwegian-flagged rescue ship that could not disembark its rescuees.
15. See Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1.
16. As in paragraph 77 of the judgment in Hirsi Jamaa v. Italy.
17. Ibid., para. 178.
18. For detailed discussion, see Part II of Martin Ratowich, International Law and Rescue of Refugees by Sea (Stockholm, 2019).
19. As seen in Hirsi Jamaa and Others v. Italy, Application No 27765/09. This principle is also recognized by a number of other sources, including the basic Frontex documents identified in footnote 8.
20. See footnotes 11 and 17.
21. Guidelines on the Treatment of Persons Rescued at Sea, IMO Resolution MSC.167(78) (adopted 20 May 2004).
22. SAR, Articles 3.1.9 and 1.3.2.
23. However, if the closest port or the next port of call is safe, the rule is that rescuees should be brought to it and not be kept on board for the benefit of all involved.
24. Paragraph 26 of United Nations High Commissioner for Refugees (UNHCR), Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea (18 March 2002) suggests flag-state responsibility in this respect in additional situations.
25. See footnote 11.
26. As discussed in Vaughan Lowe’s The right of entry into maritime ports in international law in San Diego Law Review 14:3, 597-622 (1977) and Yoshifumi Tanaka’s The International Law of the Sea (2nd ed., Cambridge, 2015) 81-84.
27. See, for example, this Deutsche Welle article.
28. As seen in the judgment of ECJ Anklagemyndigheden v. Poulsen and Diva Navigation (Case C-286/90), 24 November 1992.
29.See UN Treaty Collection.