The Duty of the Shipmaster to Render Assistance at Sea under International Law [1 ed.] 9789004438255, 9789004435476

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The Duty of the Shipmaster to Render Assistance at Sea under International Law

Queen Mary Studies in International Law Edited by Malgosia Fitzmaurice Sarah Singer

volume 41

The titles published in this series are listed at brill.com/qmil

The Duty of the Shipmaster to Render Assistance at Sea under International Law By

Felicity G. Attard

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Attard, Felicity G., author. Title: The duty of the shipmaster to render assistance at sea under international law / by Felicity G. Attard. Description: Leiden, The Netherlands ; Boston : Brill | Nijhoff, 2020. | Series: Queen Mary studies in international law, 1877-4822 ; volume 41 | Includes bibliographical references and index. | Identifiers: LCCN 2020030044 (print) | LCCN 2020030045 (ebook) | ISBN 9789004435476 (hardback) | ISBN 9789004438255 (ebook) Subjects: LCSH: Ship captains--Legal status, laws, etc. | Maritime law. Classification: LCC K1196 .A98 2021 (print) | LCC K1196 (ebook) | DDC 343.09/62--dc23 LC record available at https://lccn.loc.gov/2020030044 LC ebook record available at https://lccn.loc.gov/2020030045

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 1877-4822 ISBN 978-90-04-43547-6 (hardback) ISBN 978-90-04-43825-5 (e-book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

To all shipmasters, who despite great perils, have rendered assistance at sea

∵

Contents Foreword xi Preface xii Acknowledgements xiii Abbreviations xv Table of Cases xxiv Table of Treaties xxx Table of Legislation xxxiii Table of Selected Instruments xxxviii

General Introduction 1

1

The Shipmaster’s Duty to Render Assistance at Sea: Challenges and Considerations Posed by Irregular Migration by Sea 5 1.1 Introduction 5 1.2 The Shipmaster’s Duty to Render Assistance at Sea in Irregular Migrant Rescue Operations 6 1.3 Safety, Seaworthiness, and Security Challenges 11 1.4 Commercial Challenges 14 1.5 Human Rights and Refugee Rights Considerations 16 1.6 Conclusion 17

2

Historic Development of the Duty to Render Assistance at Sea 18 2.1 Introduction 18 2.2 The Genesis of the Duty to Render Assistance at Sea 18 2.3 Early International Efforts to Regulate the Duty to Render Assistance at Sea 19 2.3.1 The 1910 Salvage Convention 19 2.3.2 The 1910 Collisions Convention 23 2.3.3 The 1914 SOLAS 24 2.4 Conclusion 28

3

The Duty to Render Assistance at Sea under International Law 29 3.1 Introduction 29 3.2 The Duty to Render Assistance at Sea under Treaty Law 29 3.2.1 The Duty to Render Assistance at Sea under the HSC 29 3.2.1.1 The HSC: Introduction 29 3.2.1.2 The Duty to Render Assistance at Sea under the ILC Provisional Articles on the High Seas 30

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Contents

3.2.1.3

The Duty to Render Assistance at Sea: UNCLOS I Deliberations and the HSC 33 3.2.2 The Duty to Render Assistance at Sea under UNCLOS 36 3.2.2.1 The Development of UNCLOS 36 3.2.2.2 The Duty to Render Assistance at Sea: UNCLOS III Deliberations 37 3.2.2.3 The Duty to Render Assistance at Sea under UNCLOS Articles 18(2) and 98 41 3.2.3 The Duty to Render Assistance at Sea under IMO Treaties 50 3.2.3.1 The 1974 SOLAS 50 3.2.3.2 The 1979 SAR 57 3.2.3.3 The 2004 Amendments to the 1974 SOLAS and the 1979 SAR 72 3.2.3.4 The 1989 Salvage Convention 84 3.3 The Duty to Render Assistance at Sea under Customary International Law 92 3.3.1 The Role of Treaties in the Creation of Customary International Law Regulating the Duty to Render Assistance at Sea 93 3.3.2 State Measures to Enforce the Duty to Render Assistance at Sea in State Practice 96 3.4 The Duty to Render Assistance at Sea under Soft Law 109 3.4.1 IMO and ICS Guidelines 110 3.4.1.1 Cooperation and Communication 115 3.4.1.2 Level of Preparedness 117 3.4.1.3 Actions to Be Implemented during and after the Embarkation of Rescued Persons 120 3.4.1.4 Disembarkation of Rescued Persons to a Place of Safety 122 3.4.1.5 Respect for the Human Rights and Refugee Rights of Rescued Persons 125 3.5 Conclusion 126 4

State Measures Relating to the Duty of the Shipmaster to Render Assistance under the Law of the Sea 127 4.1 Introduction 127 4.2 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Treaty Law 127 4.2.1 Flag State Jurisdiction 129

Contents

ix

4.2.1.1 Safety and Seaworthiness 134 4.2.1.2 Crew 145 4.2.1.3 Security 154 4.2.2 Coastal State Jurisdiction 166 4.2.2.1 Internal Waters 166 4.2.2.2 Territorial Sea 168 4.2.2.3 Contiguous Zone 181 4.3 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Customary International Law 183 4.3.1 Customary International Law Rules Relating to the Shipmaster’s Duty to Render Assistance Reflected in Treaty Law 183 4.3.2 Customary International Law Rules Relating to the Shipmaster’s Duty to Render Assistance at Sea Not Found in Treaty Law 186 4.4 Conclusion 190 5

State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Human Rights Law and Refugee Law 192 5.1 Introduction 192 5.2 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Human Rights Law 192 5.2.1 The Interaction between the Law of the Sea and Human Rights Law 192 5.2.2 The Jurisdictional Basis for the Application of Human Rights Law at Sea 196 5.2.2.1 De Jure Jurisdiction 197 5.2.2.2 De Facto Jurisdiction 198 5.2.2.3 De Facto and De Jure Jurisdiction in Rescue at Sea Operations 202 5.2.3 State Duties to Protect Human Rights at Sea 204 5.2.3.1 Right to Life 206 5.2.3.2 Prohibition of Torture and Inhuman and Degrading Treatment or Punishment 212 5.3 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Refugee Law 226 5.3.1 The Extraterritorial Application of Non-refoulement 231 5.3.2 Place of Safety and Respect for Non-refoulement 236 5.3.3 Processing of Asylum Claims 239 5.4 Conclusion 247

x

Contents

6

State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea 248 6.1 Introduction 248 6.2 Doctrine of State Responsibility under International Law 248 6.3 Attribution of State Responsibility under International Law 249 6.3.1 General Principles to Gauge Attribution 249 6.3.2 Conduct of Private Persons Attributable to the State 251 6.3.3 Due Diligence and the Attribution of State Responsibility 253 6.3.3.1 An Obligation of Conduct, Not of Result 254 6.3.3.2 Reasonable Measures 256 6.3.3.3 Relativeness 259 6.3.3.4 The Exercise of Due Diligence Obligation and Violations of International Obligations by Private Persons 260 6.4 State Responsibility and the Shipmaster in Rescue at Sea Operations 262 6.4.1 Flag State Responsibility and the Shipmaster in Rescue at Sea Operations 262 6.4.1.1 Obligations under the Law of the Sea 262 6.4.1.2 Obligations under Human Rights Law and Refugee Law 266 6.4.1.3 Case Studies 267 6.4.2 Coastal or SAR State Responsibility and the Shipmaster in Rescue at Sea Operations 272 6.4.2.1 Obligations under the Law of the Sea 272 6.4.2.2 Obligations under Human Rights Law and Refugee Law 275 6.4.2.3 Case Studies 276 6.5 Conclusion 280



General Conclusions 282

Bibliography 291 Index 325

Foreword It is my great pleasure to introduce the monograph of Dr. Felicity Attard. She has written an in-depth and compelling study on one of the most complex and topical subjects of contemporary international law and politics. i.e. the examination of the shipmaster’s duty to render assistance at sea. She analyses shipmaster’s duties with special emphasis to the shipmaster’s responsibilities in rescue operations in light of his/her role and in the fulfilment of States’ international obligations in the rendering of assistance. Dr. Attard’s analysis is deeply entrenched and firmly grounded in general international law (such as State responsibility; due diligence obligations), which gives the book a very long shelf life. She provides a historical overview of the shipmaster’s duty and also the excellent and very detailed analysis of relevant international instruments binding, non-binding and customary international law. The monograph is very original and innovative as it identifies lacunae in international law, and suggest an innovative interpretation of the shipmaster’s duty to render assistance at sea. Dr. Attard focuses on the shipmaster’s duty in relation to the phenomenon of increased irregular migration by sea. Those duties are not only analysed in light of the relevant law of the sea conventions but as well labour law, human rights law and migration law. The book is also very valuable from the point of view of examining extensively State practice. The author of this book identifies several still unresolved issues regarding the shipmaster’s obligations in rescue operations. Dr. Attard concludes that ‘due to the nature of rescue operations, particularly those involving irregular migrants, the shipmaster needs to consider regimes beyond those strictly regulating the duty to render assistance and other rules found in UNCLOS and conventions adopted by IMO and ILO’. She relies on human rights obligations of shipmaster and is of view that he/she ‘should act as the guardian of human rights throughout a rescue operation, especially when rescuees are boarded’. The monograph of Dr. Felicity Attard is a rich study of one of the most important questions of international law in contemporary world. Her study is a very significant contribution to a scholarly debate regarding this issue. However, due to inclusion of extensive State practice and the relevant case law, her study is of great interest for practitioners. Her book is a great achievement and I recommend it for anyone interested in this subject–matter. Malgosia Fitzmaurice

Preface The primary purpose of this study is to examine the shipmaster’s duty to render assistance at sea under international law. This duty is examined in the light of contemporary challenges and considerations posed by the phenomenon of irregular migration by sea, a problem which has intensified in recent years. The approach undertaken gives special emphasis to the shipmaster’s responsibilities in rescue operations, and his role in the fulfilment of States’ international obligations in the rendering of assistance. Whilst the 1982 United Nations Convention on the Law of the Sea provides the basis for the regulation of the shipmaster’s duty to render assistance, it does not provide adequate guidance in the face of problems caused by irregular migration by sea. This work provides State officials, shipmasters, and other stakeholders with an analysis of the applicable law on the subject. It offers guidance, through an examination of numerous treaties, customary international law, and other international instruments which complement the rules found in the 1982 United Nations Convention on the Law of the Sea. Consideration is given to the prescriptions adopted by the International Maritime Organization and the International Labour Organization. Furthermore, due to the humanitarian ramifications of the rendering of assistance at sea, the study also examines obligations imposed under human rights law and refugee law. The study identifies lacunae in international law, and attempts to set forth an innovative interpretation to develop a more comprehensive legal approach to regulating the shipmaster’s duty to render assistance at sea. Given the dynamic nature of the subject examined, this author has been constrained to report developments occurring up to December 2019. Dr. Felicity Grace Attard University of Malta St. Ives Feast Day 17 December 2019

Acknowledgements I wish to express my gratitude to all those who offered me assistance in the research and writing of this study. In particular, I would like to note my deep appreciation for the assiduous guidance offered by Malgosia Fitzmaurice, Professor of Public International Law at Queen Mary University of London. I am forever grateful for her endless support and encouragement throughout my research. The University of Malta deserves my gratitude for generously providing me access to research facilities and resources which allowed this work to come to fruition. It is appropriate also for me to acknowledge the kind assistance I received from various experts at the Armed Forces of Malta, the Authority for Transport of Malta, the International Maritime Organization, the International Organization for Migration, the Italian Navy, the Norwegian Centre for the Law of the Sea, the United States Coast Guard, the United Nations High Commissioner for Refugees, Protection and Indemnity Clubs, as well as officials from the governments of Malta, Italy, and Cyprus. Furthermore, I would to like to express my appreciation to the shipmasters who have shared their life experiences and shed light on the realities of their job. I also wish to recognise the generous help of Ms Elzbieta Mizerska-Dyba, Head of Library and Archives, International Tribunal for the Law of the Sea; Ms Sharon Grant, Head of IMO’s Maritime Knowledge Centre; Ms Verica Cole, IMO International Maritime Law Institute librarian; and all the staff at the libraries of the University of Malta and the Arctic University of Norway. Similarly, I wish to thank all the staff at the IMO International Maritime Law Institute, especially Ms Josephine Aquilina, who has showed me limitless kindness over the years. This study would not have been possible without the encouragement I have received from my colleagues and friends. I wish to acknowledge the continuous support of several colleagues at the University of Malta: Dr Ivan Mifsud, Dean of the Faculty of Laws, and Professor Kevin Aquilina, Head of the Department of Media, Communications and Technology Law. Likewise, I thank Professor Patricia Vella de Fremeaux, Head of the Department of International Law, who has bestowed on me a wealth of knowledge. I would also like to express my gratitude to colleagues from the different parts of the world for providing me valuable insight into the workings of their domestic legal systems. I am grateful to my brothers for their advice, and my niece, who always brings good cheer!

xiv

Acknowledgements

Finally, I owe this work to parents: to my father for instilling in me a love of the law; to my mother for her constant encouragement and positivity. To both for being inspirational role models, and for giving me unconditional love and support.

Abbreviations 1910 Brussels Conference 1910 Brussels Conference on Maritime Law 1910 Collisions Convention 1910 International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910 Salvage Convention 1910 International Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea 1914 SOLAS 1914 International Convention for the Safety of Life at Sea 1929 SOLAS 1929 International Convention for the Safety of Life at Sea 1948 SOLAS 1948 International Convention for the Safety of Life at Sea 1960 SOLAS 1960 International Convention for the Safety of Life at Sea 1965 FAL 1965 Convention on the Facilitation of International Maritime Traffic, as amended 1974 SOLAS 1974 International Convention for the Safety of Life at Sea, as amended 1978 STCW 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, as amended 1979 SAR 1979 International Convention on Maritime Search and Rescue, as amended 1988 SUA 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Navigation 1989 Salvage Convention 1989 International Convention on Salvage 1989 Salvage Conference 1989 International Conference on Salvage 2004 IMO Guidelines 2004 International Maritime Organization Guidelines on the Treatment of Persons Rescued at Sea 2015 Rescue at Sea Guide 2015 Rescue at Sea: A Guide to Principles and Practice as Applied to Refugees and Migrants 2015 ICS Guidance 2015 International Chamber of Shipping Large Scale Rescue Operations at Sea: Guidance on Ensuring the Safety and Security of Seafarers and Rescued Persons

xvi

Abbreviations

ACHR American Convention on Human Rights ActScandJurisGent Nordic Journal of International Law AFM Armed Forces of Malta AI Amnesty International AJIL American Journal of International Law AkronLR Akron Law Review ASIL American Society of International Law AmUIntlLRev American University International Law Review AnnSurvIntL&CompL Annual Survey of International and Comparative Law Studies Anx Annex App Application APTHHA Articles on the Prevention of Transboundary Harm from Hazardous Activities ARSIWA Articles on Responsibility of States for Internationally Wrongful Acts Art Article Articles on the Law of the Sea Articles on the LOS AULR Auckland University Law Review BBC British Broadcasting Corporation BerkeleyJIntlL Berkeley Journal of International Law Bk Book BMLCR Bahamas Merchant Shipping (Maritime Labour Convention Regulations) BMSA Bahamas Merchant Shipping Act BrookJIntlL Brooklyn Journal of International Law BSPFSR Bahamas Merchant Shipping Act, Ship and Port Facility (Security) Regulations BTCMWR Bahamas Merchant Shipping (Training, Certification, Manning and Watchkeeping) Regulations BYIL British Yearbook of International Law CalWIntlLJ California Western International Law Journal CardozoLRev Cardozo Law Review CAT Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment CEPS Centre for European Policy Studies CFREU Charter of Fundamental Rights of the European Union CFSP Common Foreign and Security Policy

Abbreviations

xvii

Ch Chapter ChiJIntlL Chicago Journal of International Law CIL Customary International Law CMC China Maritime Code CMI Comité Maritime International CML Comparative Maritime Law ColumJTransnatlL Columbia Journal of Transnational Law ColumLRev Columbia Law Review COMSAR Sub-committee on Radiocommunications and Search and Rescue ContempSecurPolicy Contemporary Security Policy CPD Common Pleas Division English Law Reports CSO Company Security Officer CUP Cambridge University Press DOIM Department of Information Malta DOS Declaration of Security EC European Community ECDIS Electronic Chart Display Information Systems ECHR European Convention on Human Rights ECRE European Council on Refugees and Exiles ECSA European Community of Shipowners’ Association ECtHR European Court of Human Rights EEZ Exclusive Economic Zone EHRC European Human Rights Commission EJIL European Journal of International Law EJML European Journal of Migration and Law ER English Reports ETF European Transport Workers’ Federation EU European Union EUROPOL European Police Office FALCOM Facilitation Committee Fn Footnote FordhamIntlLJ Fordham International Law Journal FRA European Union Agency for Fundamental Rights Frontex European Border and Coast Guard Agency GaJIntl&CompL Georgia Journal of International and Comparative Law

xviii

Abbreviations

GC Grand Chamber of the European Court of Human Rights GCPML Greek Code of Public Maritime Law GDHRS Geneva Declaration on Human Rights at Sea GLAN Global Legal Action Network GMDSS Global Maritime Distress and Safety System GoJIL Goettingen Journal of International Law GYIL German Yearbook of International Law HarvIntlLJ Harvard International Law Journal HastingsIntl&CompLRev  Hastings International and Comparative Law Review HCA High Court of Australia HK Hong Kong HKSSPFR Hong Kong Merchant Shipping (Security of Ships and Port Facilities) Rules HKSSPO Hong Kong Merchant Shipping (Security of Ships and Port Facilities) Ordinance HKSSR Hong Kong Merchant Shipping (Safety) (Navigational Equipment and Safety of Navigation) Regulation HRLRev Human Rights Law Review HRW Human Rights Watch HSC Convention on the High Seas IACmHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights IAEHR Inter-American and European Human Rights Journal IAMSAR International Aeronautical and Maritime Search and Rescue Manual ICAO International Civil Aviation Organization ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICJ Rep International Court of Justice Reports ICLQ International and Comparative Law Quarterly ICLR International Community Law Review ICNT Informal Composite Negotiating Text ICS International Chamber of Shipping ICTY International Criminal Tribunal for the former Yugoslavia

Abbreviations

xix

III Sub-Committee on Implementation of IMO Instruments IJECL International Journal of Estuarine and Coastal Law IJHR International Journal of Human Rights IJHRL Interdisciplinary Journal of Human Rights Law IJICL Indonesian Journal of International and Comparative Law IJMCL International Journal of Marine and Coastal Law ILA International Law Association ILC International Law Commission ILM International Law Materials ILO International Labour Organization ILRM Irish Law Reports Monthly IMCO Inter-Governmental Maritime Consultative Organization IMO International Maritime Organization IMRO Irregular Migrant Rescue Operation IndJGlobalLegalStud Indiana Journal of Global Legal Studies INTERPOL International Criminal Police Organization IntLS International Law Studies IOM International Organization for Migration ItaLJ The Italian Law Journal IRRC International Review of the Red Cross ISA International Seabed Authority ISIL The Indian Society of International Law ISIL YBInt’lHuman&RefugeeL The Indian Society of International Law Yearbook of International Humanitarian and Refugee Law ISJ Island Studies Journal ISM Code International Safety Management Code ISNT Informal Single Negotiating Text ISPS Code International Ship and Port Facility Security Code IsraelYBHumRts Israel Yearbook on Human Rights ISU International Salvage Union ITLOS International Tribunal for the Law of the Sea IUU Fishing Illegal, Unreported and Unregulated Fishing JC&SL Journal of Conflict and Security law

xx

Abbreviations

JEthnMigrStud Journal of Ethnic Migration Studies JIBL Journal of International Business and Law JIML Journal of International Maritime Law JIntDev Journal of International Law and Development JIntlLIntlRel Journal of International Law and International Relations JMarL&Com Journal of Maritime Law and Commerce JML Japan Mariners Law JRefugStud Journal of Refugee Studies Law&ContempProbs Law and Contemporary Problems Law&Ineq Law and Inequality LEG Legal Committee LEHR Law and Ethics of Human Rights LJIL Leiden Journal of International Law LMCLQ Lloyd’s Maritime and Commercial Law Quarterly LML Liberian Maritime Law LN Legal Notice Marit Stud Maritime Studies MarPolicy Maritime Policy MarSafeLaw Journal Maritime Safety and Security Law Journal MI The Marshall Islands MichJIntlL Michigan Journal of International Law MIMA The Marshall Islands Maritime Act MIMR The Marshall Islands Maritime Regulations MLC, 2006 Maritime Labour Convention, as amended MMC Merchant Marine Circular MMLCR Malta Merchant Shipping (Maritime Labour Convention) Rules MMSA Malta Merchant Shipping Act MMSSR Malta Merchant Shipping (Safety Convention) Rules MOT Ministry of Transport of the People’s Republic of China MoU Memorandum of Understanding MPEPIL Max Planck Encyclopedia of Public International Law MPSR Malta Port Security Regulations MRO Mass Rescue Operation MSC Maritime Safety Committee

Abbreviations

xxi

MUP Manchester University Press NavalWarCollRev Naval War College Review NGO Non-governmental Organisation NILQ Northern Ireland Legal Quarterly NM Nautical Mile NYIL Netherlands Yearbook of International Law NYUJIntlL&Pol New York University Journal of International Law and Politics NYULRev New York University Law Review OAS Organization of American States OAU Organisation of African Unity Ocean&CoastalLJ Ocean and Coastal Law Journal Ocean YB Ocean Yearbook OECD Organisation for Economic Co-operation and Development OJ Official Journal OSC On-scene Coordinator OUP Oxford University Press PACE Parliamentary Assembly of the Council of Europe PacRim L&P Pacific Rim Law and Policy P&I Protection and Indemnity PCA Permanent Court of Arbitration PETI European Parliament Committee on Petitions PFSO Port Facility Security Officer PFSP Port Facility Security Plan PLMC Panama Law on Maritime Commerce POA Public Order Act Pt Part PubLRev Public Law Review QuestIntlL Questions of International Law RCC Rescue Co-ordination Centre Reg Regulation RGGIP Registro Giudiziario Giudice Preliminari RGNR Registro Generale Notizia di Reato RIAA Reports of International Arbitral Awards RLM Liberian Maritime Law Regulations RMMS Regional Mixed Migration Secretariat RSNT Revised Single Negotiating Text RSQ Refugee Survey Quarterly

xxii

Abbreviations

TulLRev Tulane Law Review TulMarLJ Tulane Maritime Law Journal SanDiegoLRev San Diego Law Review SAR Search and Rescue SC Search and Rescue Coordinator Sch Schedule SDP Status Determination Procedure SI Statutory Instrument SIMPLY Scandinavian Institute of Maritime Law Yearbook SMC Search and Rescue Mission Coordinator SMCA Singapore Maritime Convention Act SMLCA Singapore Merchant Shipping (Maritime Labour Convention) Act SMSA Singapore Merchant Shipping Act SRFC Sub-Regional Fisheries Commission Sri Lanka JIL Sri Lanka Journal of International Law SRR Search and Rescue Region SSO Ship Security Officer SSP Ship Security Plan SSSR Singapore Shipping Safety Regulations SSTCMR Singapore Merchant Shipping (Training, Certification and Manning) Regulations StanJIntlL Stanford Journal of International Law STCW Code International Convention on Standards of Training, Certification and Watchkeeping for Seafarers Code Sub leg Subsidiary Legislation UDHR Universal Declaration of Human Rights UK United Kingdom UKHL United Kingdom House of Lords UKMSA United Kingdom Merchant Shipping Act UKSNR United Kingdom Merchant Shipping (Safety of Navigation) Regulations UKTS United Kingdom Treaty Series UMiamiIntL&ComRev University of Miami International and Comparative Law Review UN United Nations UNCLOS United Nations Convention on the Law of the Sea

Abbreviations

xxiii

UNCLOS I First United Nations Conference on the Law of the Sea UNCLOS III Third United Nations Conference on the Law of the Sea UNGA United Nations General Assembly UNHCR United Nations High Commissioner for Refugees UNHRCOM United Nations Human Rights Committee UNODC United Nations Office on Drugs and Crime UNSC United Nations Security Council UNTS United Nations Treaty Series US United States of America USC United States Code USF MLJ University of San Francisco Maritime Law Journal USNS United States Naval Ship USSC United States Supreme Court USSR Union of Soviet Socialist Republics WashLRev Washington Law Review WJILDR Willamette Journal of International Law and Dispute Resolution YaleLJ Yale Law Journal YBILC Yearbook of the International Law Commission YECommHR Yearbook of the European Convention of Human Rights YInlIHL Yearbook of International Humanitarian Law YIntlEnvL Yearbook of International Environmental Law

Table of Cases International International Court of Justice Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Judgment, Merits [2010] ICJ Rep 639 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment, Merits [2007] ICJ Rep 43 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) Merits, Judgment [2015] ICJ Rep 3 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Merits, Judgment [2005] ICJ Rep 168 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgment [1986] ICJ Rep 14 Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Second Phase, Judgment [1970] ICJ Rep 3 Case concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) Merits, Judgment [1985] ICJ Rep 13 Corfu Channel Case (United Kingdom v Albania) Merits, Judgment [1949] ICJ Rep 4 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62 Fisheries Case (United Kingdom v Norway) Judgment [1951] ICJ Rep 116 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) Merits, Judgment [1992] ICJ Rep 351 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 1996 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Germany/Netherlands) Judgment [1969] ICJ Rep 3 Nottebohm Case (Liechtenstein v Guatemala) Second Phase, Judgment [1955] ICJ Rep 4 Pulp Mills on the River Uruguay (Argentina v Uruguay) Judgment [2010] ICJ Rep 14 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) Judgment [1980] ICJ Rep 3

Table of Cases

xxv

International Tribunal for the Law of the Sea Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v Russian Federation) (Provisional Measures, Order of 25 May 2019) ITLOS Reports 2019 Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC)(Request for Advisory Opinion submitted to the Tribunal) (Advisory Opinion of 2 April 2015) ITLOS Reports 2015 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber) (Advisory Opinion of 2 February 2011) ITLOS Reports 2011 The “Arctic Sunrise” Case (Kingdom of the Netherlands v Russian Federation) (Provisional Measures, Order of 22 November 2013) ITLOS Reports 2013 The “Camouco” Case (Panama v France) (Prompt Release, Judgment of 7 ­February 2000) ITLOS Reports 2000 The “Enrica Lexie” Incident (Italy v India) (Provisional Measures, Order of 24 August 2015) ITLOS Reports 2015 The “Hoshinmaru” Case ( Japan v Russian Federation) (Prompt Release, Judgment of 6 August 2007) ITLOS Reports 2005–2007 The “Juno Trader” Case (Saint Vincent and the Grenadines v Guinea-Bissau) (Prompt Release, Judgment of 18 December 2004) ITLOS Reports 2004 The “Monte Confurco” Case (Seychelles v France) (Prompt Release, Judgment of 18 December 2000) ITLOS Reports 2000 The M/T “San Padre Pio” Case (Switzerland v Nigeria) (Provisional Measures, Order of 6 July 2019) ITLOS Reports 2019 The M/V “Louisa” Case (Saint Vincent and the Grenadines v Kingdom of Spain) (Judgment of 28 May 2013) ITLOS Reports 2013 The M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v Guinea) (Merits, Judgment of July 1 1999) ITLOS Reports 1999 The M/V “Virginia G” Case (Panama/Guinea-Bissau) (Merits, Judgment of 14 April 2014) ITLOS Reports 2014 International Arbitration Case of the Creole (Creole v Great Britain) (1854) 24 RIAA 26 Home Frontier and Foreign Missionary Society of the United Brethren in Christ (United States) v Great Britain (1920) 6 RIAA 42 Kate A Hoff, Administratrix of the Estate of Samuel B Allisson, Deceased (USA) v United Mexican States (1929) VI RIAA 444 Laura M B Janes et al. (U.S.A.) v United Mexican States (1925) 4 RIAA 82

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Table of Cases

Mixed Claims Commission, Sambiaggio Case (Italy-Venezuela) (1903) 10 RIAA 499 Rainbow Warrior Affair Case (New Zealand v France) (1990) 20 RIAA 217 The South China Sea Arbitration (The Republic of Philippines v The People’s Republic of China), PCA Case No 2013-19, Award, 12th July 2016 International Criminal Tribunal for the Former Yugoslavia Prosecutor v Anto Furundžija (Judgment) ICTY IT-95-17/1-T (10 December 1998) Prosecutor v Duško Tádic (Judgment) Appeals Chamber of ICTY IT- 94-1-A (15 July 1999) United Nations Committee against Torture Aemei v Switzerland CAT/C/18/D/34/1995, UN Committee Against Torture, 29 May 1995 Cecilia Rosana Núñez Chipana v Venezuela CAT/C/21/D/110/1998, UN Committee Against Torture, 16 December 1998 Gorki Ernesto Tapia Paez v Sweden CAT/C/18/D/39/1996, UN Committee Against Torture, 28 April 1997 JHA v Spain CAT/C/41/D/323/2007, UN Committee Against Torture, 21 November 2008 Sonko v Spain CAT/C/41/D/323/2007, UN Committee Against Torture, 25 November 2011 Regional European Court of Human Rights Abaker Abdi Ahmed and Others v Malta App no 43985/13 (ECtHR, Decision of 16 September 2014) Abdi Mahamud v Malta App no 56796/13 (ECtHR, Judgment of 3 May 2016) Aden Ahmed v Malta App no 55352/12 (ECtHR, Judgment of 23 July 2013) Akkoç v Turkey App nos 22947/93 & 22948/93 (ECtHR, Judgment of 10 October 2000) Aksoy v Turkey App no 21987/93 (ECtHR, Judgment of 18 December 1996) Al-Saadoon and Mufdhi v the United Kingdom App no 61498/08 (ECtHR, Decision of 30 June 2009) Angelova and Iliev v Bulgaria App no 55523/00 (ECtHR, Judgment of 26 July 2007) Assanidze v Georgia App no 71503/01 (ECtHR, Judgment (GC) of 8 April 2004)

Table of Cases

xxvii

Aydin v Turkey App no 57/1996/676/866 (ECtHR, Judgment (GC) of 25 September 1997) Bader and Kanbor v Sweden App no 13284/04 (ECtHR, Judgment of 8 November 2005) Bakanova v Lithuania App no 11167/12 (ECtHR, Judgment of 31 May 2016) Banković and Others v Belgium and 16 Other Contracting States App no 52207/99 (ECtHR, Decision (GC) of 12 December 2001) Bati and Others v Turkey App nos 33097/96 and 57834/00 (ECtHR, Judgment of 3 June 2004) Chahal v the United Kingdom App no 70/1995/576/662 (ECtHR, Judgment (GC) of 11 November 1996) Cruz Varas and Others v Sweden App no 15576/89 (ECtHR, Judgment of 20 March 1991) Dikme v Turkey App no 20869/92 (ECtHR, Judgment of 11 July 2000) Dougoz v Greece App no 40907/98 (ECtHR, Judgment of 6 June 2001) Furdík v Slovakia App no 42994/05 (ECtHR, Decision of 2 December 2008) Gäfgen v Germany App no 22978/05 (ECtHR, Judgment (GC) of 1 June 2010) Hirsi Jamaa and Others v Italy App no 27765/09 (ECtHR, Judgment (GC) of 23 February 2012) Ilaşcu and Others v Moldova and Russia App no 48787/99 (ECtHR, Judgment (GC) 8 July 2004) Ireland v the United Kingdom App no 5310/71 (ECtHR, Judgment of 18 January 1978) Kiliç v Turkey App no 22492/93 (ECtHR, Judgment of 28 March 2000) Korobov v Ukraine App no 39598/03 (ECtHR, Judgment of 21 October 2011) LCB v the United Kingdom App no 14/1997/798/1001 (ECtHR, Judgment of 9 June 1998) Mahmut Kaya v Turkey App no 225535/93 (ECtHR, Judgment of 28 March 2000) Matthews v the United Kingdom App no 24833/94 (ECtHR, Judgment (GC) of 18 February 1999) Medvedyev and Others v France App no 3394/03 (ECtHR, Judgment (GC) of 29 March 2010) MSS v Belgium and Greece App no 30696/09 (ECtHR, Judgment (GC) of 21 January 2011) Öneryildiz v Turkey App no 48939/99 (ECtHR, Judgment (GC) of 30 November 2004) Osman v the United Kingdom App no 87/1997/871/1083 (ECtHR, Judgment (GC) of 28 October 1998) Peers v Greece App no 28524/95 (ECtHR, Judgment of 19 April 2001)

xxviii

Table of Cases

Pretty v the United Kingdom App no 2346/02 (ECtHR, Judgment of 29 April 2002) Salman v Turkey App no 21986/93 (ECtHR, Judgment (GC) of 27 June 2000) SD v Greece App no 53541 (ECtHR, Judgment of 11 June 2009) Selmouni v France App no 25803/94 (ECtHR, Judgment (GC) of 28 July 1999) SF and Others v Bulgaria App no 8138/16 (ECtHR, Judgment of 7 December 2017) Sharifi and Others v Italy and Greece App no 16643/09 (ECtHR, Judgment of 21 October 2014) Soering v the United Kingdom App no 14038/88 (ECtHR, Judgment of 7 July 1989) Streletz, Kessler and Krenz v Germany App nos 34044/96, 35532/97 and 44801/98 (ECtHR, Judgment (GC) of 22 March 2001) Tekin v Turkey App no 52/1997/836/1042 (ECtHR, Judgment of 9 June 1998) V v the United Kingdom App no 24888/94 (ECtHR, Judgment (GC) of 16 December 1999) European Human Rights Commission Denmark v Greece App no 3321/67 (EHRC, 1969) Norway v Greece App no 3322/67 (EHRC, 1969) Sweden v Greece App no 3323/67 (EHRC, 1969) Inter-American Commission on Human Rights Raquel Martin de Mejía v Peru Case 10.970, Report No. 5/96, IACmHR, OEA/ Ser.L/V/II.91 Doc. 7 at 157 (1996) The Haitian Centre for Human Rights v United States, IACmHR Report No 51/96, Case No 10.675 (13 March 1997) Inter-American Court of Human Rights Case of Caesar v Trinidad and Tobago (Judgment, Merits, Reparations, and Costs) IACtHR Series C No 123 (11 March 2005) Case of Cantoral-Benavides v Peru (Judgment, Merits) IACtHR Series C No 69 (18 August 2000) Case of Juan Humberto Sánchez v Honduras (Judgment, Preliminary Objects, Merits, Reparations and Costs) IACtHR Series C No 99 (7 June 2003) Case of the Pueblo Bello Massacre v Colombia (Judgment, Merits, Reparations and Costs) IACtHR Series C No 140 (31 January 2006) Case of the Sawhoyamaxa Indigenous Community v Paraguay (Judgment, Merits, Reparations and Costs) IACtHR Series C No 146 (29 March 2006) Case of Tibi v Ecuador (Judgment, Preliminary Objections, Merits, Reparations, and Costs) IACtHR Series C No 114 (7 September 2004)

Table of Cases

xxix

Case of Velásquez-Rodríguez v Honduras (Judgment, Merits) IACtHR Series C No 4 (29 July 1988) Domestic Australia CPCF v Minister for Immigration and Border Protection (28 January 2015) [2015] HCA 1, S169/2014 Italy Bayoud and Zenzeri, Tribunale di Agrigento, Sezione Penale Feriale, 1107/2009 Cap Anamur, Tribunale di Agrigento, I Sezione Penale, I Collegio, 954/2009 Ireland ACT Shipping (OTE) Ltd v Minister of Marine (The MV Toledo) [1995] 2 ILRM 30 United Kingdom Eleanor, the (1809) Edwards’ Admiralty Reports 135 Regina v Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others [2004] UKHL 55 Scaramanga v Stamp (1880) 5 CPD 295 United States of America Brig Concord (The), 13 US 387, 9 Cranch 387 (1815) Chris Sale, Acting Commissioner, Immigration and Naturalization Service et al. v. Haitian Centers Council, Inc. et al. (USSC, June 21 1993) 509 US 155

Table of Treaties International Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 28 July 1996) 1836 UNTS 42 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 27 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (adopted 10 March 1988, entered into force 1 March 1992) 1678 UNTS 201 Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295 Convention on the Facilitation of International Maritime Traffic (adopted 9 April 1965, entered into force 5 March 1967) 591 UNTS 265 Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 Convention on the Protection of the Marine Environment of the Baltic Sea Area (adopted 9 April 1992, entered into force 17 January 2000) 1507 UNTS 167 Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10 September 1964) 516 UNTS 205 Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 International Convention for the Safety of Life at Sea (adopted 20 January 1914, not in force) International Convention for the Safety of Life at Sea (adopted 31 May 1929, entered into force 1933) UKTS 43 (1932) International Convention for the Safety of Life at Sea (adopted 10 June 1948, entered into force 19 November 1952) UKTS 1 (1953)

Table of Treaties

xxxi

International Convention for the Safety of Life at Sea (adopted 31 May 1960, entered into force 26 May 1965) UKTS 60 (1965) International Convention for the Safety of Life at Sea (adopted November 1974, entered into force 1 May 1991) 1184 UNTS 3 International Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea (adopted 23 September 1910, entered into force 1 March 1913) UKTS 4 (1913) International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels (adopted 23 September 1910, entered into force 1 March 1913) UKTS 4 (1913) International Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 97 International Convention on Salvage (adopted 28 April 1989, entered into force 14 July 1996) 1953 UNTS 165 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (adopted 7 July 1978, entered into force 28 April 1984) 1361 UNTS 190 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 Maritime Labour Convention (adopted 23 February 2006, entered into force 20 August 2013) 2952 UNTS Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (adopted 14 October 2005, entered into force 28 July 2010) IMO Doc.LEG/CONF.15/21 Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (adopted 20 December 1988, entered into force 11 November 1990) 1582 UNTS 164 United Nations Convention on Conditions for Registration of Ships (7 February 1989, not yet in force) 26 ILM 1229 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331

xxxii

Table of Treaties

Regional African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 218 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (adopted 12 May 2011, entered into force 19 January 2013) 50 ILM 1119 (2011) American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 Charter of Fundamental Rights of the European Union (adopted 7 December 2000, entered into force 1 December 2009) OJ 2012/C 326/02 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (adopted 26 November 1987, entered into force 1 February 1989) ETS 126 Inter-American Convention to Prevent and Punish Torture (adopted 9 December 1985, entered into force 28 February 1987) OAS Treaty Series No 67 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45

Table of Legislation

European Union

Decisions Council Decision (CFSP) 2016/993 of 20 June 2016 amending Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED operation SOPHIA) [2016] OJ L162/18 Directives Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence [2002] OJ L287/17 Regulations Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea ­borders in the context of operational cooperation coordinated by the ­European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2014] OJ L189/93 Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 [2019] OJ L 295/1 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180/31 National Australia Migration Act 1958 (No 62, 1958) Bahamas Merchant Shipping Act, 1976, Chapter 268 Merchant Shipping (Maritime Labour Convention Regulations), 2012

xxxiv

Table of Legislation

Merchant Shipping (Training, Certification, Manning and Watchkeeping) Regulations, 2011 Merchant Shipping, Ship and Port Facility (Security) Regulations, 2016 Canada Canada Shipping Act, Statutes of Canada 2001, c 26 China Maritime Code of the People’s Republic of China (Adopted at the 28th Meeting of the Standing Committee of the Seventh National People’s Congress on November 7, 1992 and promulgated by Order No 64 of the President of the People’s Republic of China on November 7, 1992) Maritime Traffic Safety Law of the People’s Republic of China (Adopted at the Second Meeting of the Standing Committee of the Sixth National People’s Congress, and effective as of January 1, 1984) Port Facility Security Rules of the People’s Republic of China (issued by the Ministry of Transport on December 17, 2007 and amended via the Decision of the Ministry of Transport on Amending the Port Facility Security Rules of the People’s Republic of China (No 68 [2016], MOT) on September 2, 2016) Regulations on Watchkeeping for Seafarers on Seagoing Ships of the People’s Republic of China (Enacted by order of the Ministry of Transportation and Communications No (73) Jiao-Hang-Zi-02484 dated January 31, 1984) Cyprus Constitution of Cyprus of 4 October 1958 France Criminal Code (Ordinance No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September into force 1 January 2002) Gibraltar Merchant Shipping (Safety etc) Act (Act No 1995-13) Greece Code of Public Maritime Law (Legislative Decree 187/1973, ‘K.Δ.Ν.Δ’) Hong Kong Criminal Procedure Ordinance (Cap 221, T-2) Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (Cap 508, LN 322 of 1997)

Table of Legislation

xxxv

Merchant Shipping (Safety) Ordinance (Cap 369, LN 366 of 1981) Merchant Shipping (Safety) (Safety Management) Regulation (sub.leg.AX, Cap 369) Merchant Shipping (Safety) (Ship’s Manning Regulation) (LN, 123 of 2016, Cap 369) Merchant Shipping (Safety) (Navigational Equipment and Safety of Navigation) Regulation (sub leg BA, Cap 369) Merchant Shipping Safety (Radiocommunications) Regulation (LN 86 of 2017, Cap 369) Merchant Shipping (Seafarers) (Certification and Watch-keeping Regulation), Chapter 478, Subsidiary Legislation T-2 Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation, Chapter 478, Sub leg R Merchant Shipping (Seafarers) (Safety, Security and Designated Duties Training) Regulation (Sub leg AJ Cap 478) Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, Chapter 478 Sub leg AF Merchant Shipping (Security of Ships and Port Facilities) Ordinance, Chapter 582 Merchant Shipping (Security of Ships and Port Facilities) Rules, Chapter 582, section 6 Italy Code of Navigation, Legislative Decree 16 October 2017, No 148 Criminal Code, Royal Decree 19 October 1930, n 1398, revised by Law 28 July 2016, No 153 Migration Law of 1998, Legislative Decree of 18 July 1998, No 286 Japan Mariners Law, Law No 100 of 1 Sep 1947, last amended by Act No 45 of 2 June 2017 Liberia Maritime Law, Title 21 of the Liberian Code of Law of 1956 (RLM-107 Series 2018) Penal Code, Title 26, Chapter 14

xxxvi

Table of Legislation

Malta Criminal Code, Chapter 9 of the Laws of Malta European Convention Act (1987), Chapter 319 of the Laws of Malta Immigration Act, Chapter 217 of the Laws of Malta Merchant Shipping Act, Chapter 234 of the Laws of Malta Merchant Shipping (Maritime Labour Convention) Rules, Subsidiary Legislation 234.51 Merchant Shipping (Safety Convention) Rules, Subsidiary Legislation 234.30 Merchant Shipping (Training and Certification) Regulations, Subsidiary Legislation 234.17 Port Security Regulations, Subsidiary Legislation 499.35 Panama Commercial Code (Law No 2 of August 1916), Maritime Commerce (Law No 55 of 2008) Russia Federal Act on the internal maritime waters, territorial sea and contiguous zone of the Russian Federation (adopted by the State Duma on 16 July 1998) Singapore Maritime Conventions Act (Cap IA3, Rev Ed 2004) Maritime Offences Act (Chapter 170B, 2003) Merchant Shipping Act (Cap 179, Rev Ed 1995) Merchant Shipping (Maritime Labour Convention) Act 2014 (No.6 of 2014) Merchant Shipping (Safety Convention) Regulations (Cap 179, Rev Ed 1999) s.100 Merchant Shipping (Training, Certification and Manning Regulations) (Chapter 179, Section 74, 100 and 216) (31st January 2001) The Marshall Islands Maritime Act, Title 47 of the Marshall Islands Revised Code of Laws of 1990 (MI-07 October 2016) Maritime Regulations (MI-108, August 2018) United Kingdom Public Order Act 1986, Chapter 64 (POA, 1986) Merchant Shipping Act 1995, Chapter 21 (MSA, 1995) Merchant Shipping (International Safety Management (ISM) Code) Regulations 2014 (2014, No 1512)

Table of Legislation

xxxvii

Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (2018, No 58) Merchant Shipping (Safety of Navigation) Regulations 2002 (2002, No 1473) Merchant Shipping (Standards of Training, Certification and Watchkeeping) Regulations 2015 (2015, No 782) Merchant Shipping, The Ship and Port Facility (Security) Regulations 2004 (2004, No 1495) United States of America 46 USC § 4.03 (2006) 46 USC § 2304 (2006) 46 USC § 2303 (2006) 46 USC § 80107 (2006) The Immigration and Nationality Act of 1952 (Pub L 82–414, 66 Stat. 163, enacted June 27, 1952) Vietnam The Law of the Sea of Vietnam (adopted on 21 June 2012, by the XIIIth National Assembly of the Socialist Republic of Vietnam at its 3rd session)

Table of Selected Instruments Codes Code of Conduct for NGOs Undertaking Activities in Migrants’ Rescue Operations at Sea, July 2017, Rome The International Management Code for the Safe Operation of Ships and for Pollution Prevention, adopted by IMO on 23 November 1995, by Resolution A.788(19) on Guidelines on implementation of the International Safety Management (ISM) Code by Administrations The International Ship and Port Facility Security Code, adopted by IMO as an amendment to the Annex of SOLAS on 17 December 2002 as by Conference Resolution 2 Declarations Declaration of the United Nations Conference on the Human Environment (Stockholm, 16 June 1972) UN Doc.A/Conf.48/14/Rev. 1(1973) Geneva Declaration on Human Rights at Sea, Version 1 (5 April 2019) Rio Declaration on Environment and Development, UN Doc.A/CONF.151/26 (Vol. I), 31 ILM 874 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) Decrees Tribunale di Catania, Sezione del Giudice per le Indagini Preliminari, Decreto di Convalida e di Sequestro Preventivo, N 3476/18 RGNR, N 2474/18 RGGIP Tribunale di Ragusa, Ufficio del Giudice per le Indagini Preliminari, Decreto di Rigetto di Richiesta di Sequestro Preventivo, N 1216 -1282/18 RGNR, N 1182/18 RGGIP Guidelines Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy Framework” (2011) UN Doc HR/ PUB/11/04

Table of Selected Instruments

xxxix

ICS, ‘Large Scale Rescue Operations at Sea: Guidance on Ensuring the Safety and Security of Seafarers and Rescued Persons’ (2014) ICS, ‘Large Scale Rescue Operations at Sea: Guidance on Ensuring the Safety and Security of Seafarers and Rescued Persons’ (2nd Edition, 2015) IMO, ‘Rules and Guidelines for Consultative Status of Non-Governmental International Organizations with the International Maritime Organization’ (2012) IMO/UNHCR, ‘Rescue at Sea: A Guide to Principles and Practice as Applied to Refugees and Migrants’ (2006) IMO/UNHCR/ICS, ‘Rescue at Sea: A Guide to Principles and Practice as applied to Refugees and Migrants’ (2015) Orders Executive Order 12807, Interdiction of Illegal Aliens, 24 May 1992 Proclamations Proclamation 5298 (27 December) 103 Stat. 2981

Notices and Bulletins

Bahamas Bahamas Maritime Authority, ‘ECDIS, Nautical Charts and Publications’ (14 November 2017) Bulletin 51 Bahamas Maritime Authority, ‘International Safety Management (ISM Code) (issued 23 April, effective from 2 May 2018) Bulletin No 23 Liberia Liberia Maritime Authority, ‘Health and safety protection, accident prevention, medical care, welfare and social security protection of seafarer’s under the Maritime Labour Convention (MLC), 2006’, MLC-005 Rev 04/18 Liberia Maritime Authority, ‘International Safety Management Code (ISM Code)’, Marine Notice ISM-001, Rev 06/12 Liberian Maritime Authority, ‘International Ship & Port Facility Security Code (ISPS Code)’, Marine Notice ISP-001, 06/12 Liberia Maritime Authority, ‘Safety of Navigation – Nautical Charts and Publications and Notices to Mariners’, Marine Notice NAV-001, Rev 06/12

xl

Table of Selected Instruments

Liberia Maritime Authority, ‘Terms and Conditions for employment of seafarers under the Maritime Labour Convention’, Marine Notice MLC-003, Rev 2/17 Malta Malta Maritime Authority, Merchant Shipping Directorate, ‘Implementation of the International Safety Management (ISM) Code for the Safe Operation of Ships and for Pollution Prevention’ (14 March 2001) MSD Notice No 42 Transport Malta, Merchant Shipping Directorate, ‘Publications to be Carried Onboard Malta flagged Vessels’ Technical Notice SLS.33 Panama Panama Maritime Authority, ‘Compliance with Mandatory Ship Reporting Systems’ (September 2001) Merchant Marine Circular No 113 Panama Maritime Authority, ‘Electronic Charts and Publications in regards to the Carriage Requirements and Crew Training on board Panama Flagged vessels’ (24 July 2012) Merchant Marine Circular MMC-218 Panama Maritime Authority, ‘Implementation of ISM Code’, Merchant Marine Circular No 100 (September 1996) Panama Merchant Authority, Merchant Marine Circular No 268 on Maritime Labour Convention, 2006 (MLC, 2006) – Minimum Rest Hours Panama Maritime Authority, ‘Principles of Minimum Safe Manning’ Merchant Marine Circular MMC-285 Panama Maritime Authority, ‘Watchkeeping at Sea’ Merchant Marine Circular No 188 Singapore Maritime and Port Authority of Singapore Shipping Circular to Shipowners, ‘Revised Safe Manning Requirements for Singapore Ships’ (19 December 2013) No 22 of 2013 The Marshall Islands The Marshall Islands, ‘International Safety Management (ISM) Code’, Marine Notice, No 2-011-13, Rev July/2019 The Marshall Islands, ‘International Ship and Port Facility Security (ISPS) Code’ Marine Notice, No 2-011-16 The Marshall Islands, ‘Minimum Hours of Rest’, Marine Notice, No 7-0-051, Rev 11/13 The Marshall Islands, ‘Principles of Watchkeeping’, Marine Notice No 7-038-4

Table of Selected Instruments

xli

Manuals International Maritime Organization and International Civil Aviation Organization, International Aeronautical and Maritime Search and Rescue Manual Volume I (2019 Edition, International Maritime Organization/International Civil Aviation Organization) International Maritime Organization and International Civil Aviation Organization, International Aeronautical and Maritime Search and Rescue Manual Volume II (2019 Edition, International Maritime Organization/International Civil Aviation Organization) International Maritime Organization and International Civil Aviation Organization, International Aeronautical and Maritime Search and Rescue Manual Volume III, (2019 Edition, International Maritime Organization/International Civil Aviation Organization)

Memorandum of Understandings

Memorandum of Understanding between the Armed Forces of Malta and the Libyan Maritime Transport and Ports Administration in the field of Search and Rescue (Libya, 18 March 2009) Memorandum of Understanding for Cooperation between the Armed Forces of Malta and the United States Coast Guard Concerning Aeronautical and Maritime Search and Rescue (United States, 11 July 2009, entered into force 11 July 2009)

International Maritime Organization

Resolutions IMO Assembly, ‘Principles of Minimum Safe Manning’ (30 November 2011) Res A.1047 (27) IMO Assembly, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (29 November 2001) Res A.920 (22) IMO Assembly, ‘Special Recognition for Merchant Vessels and their Crew involved in the Rescue of Mixed Migrants at Sea’ (17 December 2015) Res A.1093 (29) IMO Maritime Safety Committee, ‘Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended’ (20 May 2004) Res MSC.153 (78)

xlii

Table of Selected Instruments

IMO Maritime Safety Committee, ‘Adoption of Amendments to the International Convention on Maritime Search and Rescue, 1979, as amended’ (20 May 2004) Res MSC.155 (78) IMO Maritime Safety Committee, ‘Guidelines on the Treatment of Person Rescued at Sea’ (20 May 2004) Res MSC.167 (78) Facilitation Committee IMO Facilitation Committee, ‘Measures and Procedures for the Treatment of Persons Rescued at Sea: Facilitation aspects. Outcome of MSC 76’ (24 October 2002) FAL 30/9 IMO Facilitation Committee, ‘Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea’ (22 January 2009) FAL 3/Circ.194 IMO Facilitation Committee, ‘Report of the Facilitation Committee on its Thirty-fifth Session of Persons’ (19 March 2009) FAL 35/17 IMO Facilitation Committee, ‘Report of the Twenty-ninth Session of the Facilitation Committee’ (30 January 2002) FAL 29/18 Maritime Safety Committee IMO Maritime Safety Committee, ‘Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea’ (12 June 2001) MSC/Circ.896/Rev.1 IMO Maritime Safety Committee, ‘Outcome of informal meeting on “Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (27 September 2002) MSC 76/22/11 IMO Maritime Safety Committee, ‘Outcomes of the Twenty-Second Session of the Assembly – Note by the Secretariat’ (7 January 2002) MSC 75/2/2 IMO Maritime Safety Committee, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (9 October 2002) MSC 76/22/10 IMO Maritime Safety Committee, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea – Note by the Secretariat’ (31 July 2002) MSC 76/22/8 Sub-committee on Implementation of IMO Instruments Sub-committee on Flag State Implementation, ‘Measures to Protect the Safety of Persons Rescued at Sea. Comments on document FSI 17/15/1. Submitted by Malta’ (27 February 2009) IMO Doc. FSI 17/15/2 Sub-committee on Flag State Implementation, ‘Measures to Protect the Safety of Persons Rescued at Sea. Comments on document FSI 17/15/1. Submitted by Spain and Italy’ (13 February 2009) IMO Doc. FSI 17/15/1

Table of Selected Instruments



xliii

United Nations General Assembly Resolutions

United Nations General Assembly Res 1307 (XIII) (10 December 1958) United Nations General Assembly Res 2570C (XXV) (17 December 1970) Rules Gard Rules 2019 European Court of Human Rights (Rules of the Court, Registry of the Court, 16 April 2018) Skuld 2019 P&I Rules Standard Club, P&I and Defence Rules and Correspondents, 2019/20 The American Club By-Laws, Rules, List of Correspondents 2019 The London P&I Club, Class 5 The Protection and Indemnity Rules 2019/2020 West of England, Rules of Classes 1 & 2, 2019

General Introduction The shipmaster’s legal status has evolved over centuries of practice, custom, and law.1 One of his2 important duties is to render assistance at sea.3 This obligation has its origins in the moral and legal duty to protect and save human life. When confronted with dangers at sea, seafarers turned to others navigating the oceans to provide assistance.4 This usage developed into a rule of customary international law5 and was codified in a number of treaties, culminating in Article 98 of the 1982 United Nations Convention on the Law of the Sea.6 The main aim of this study is to provide a comprehensive examination of the shipmaster’s duty to render assistance at sea under international law, particularly in light of the problems posed by the phenomenon of irregular migration by sea. It focuses on the position of the shipmaster of a commercial v­ essel.7 In this respect, it addresses the unique interaction between the shipmaster and States to ensure full compliance with the latter’s international obligations in fulfilling the duty to render assistance, particularly in irregular migrant rescue operations.8 This interaction is examined by analysing the duty to render assistance as enshrined in unclos and complemented by rules found in other international instruments, particularly International Maritime Organization9

1 John A C Cartner, Richard P Fiske, and Tara L Leiter, The International Law of the Shipmaster (Informa 2009) 3–17; Kenneth J Carruthers, ‘The Law and the Shipmaster in the 21st Century’ (1991) 60 Marit Stud 1, 2; Douglas Stevenson, ‘Maritime Labour Law’ in David Joseph Attard (ed), The imli Manual on International Maritime Law Volume ii: Shipping Law (Oxford University Press 2016) 212–213. 2 This author has attempted to maintain, wherever possible, gender neutrality. When referring to the shipmaster, the masculine gender has largely been used, as this is consistent with the relevant texts of treaties and national legislation. This approach is used to avoid awkwardness of expression and to reflect this author’s intention to be faithful to the legal texts. No discrimination is intended, nor should it be construed. 3 In this study, references to the duty to render assistance at sea should be construed, unless the context suggests otherwise, to also include the duty to rescue at sea. 4 Sam Willis, Shipwreck: A History of Disasters at Sea (Quercus 2009) 6–15; Philippe Boisson, Safety at Sea: Policies, Regulations & International Law (Bureau Veritas 1999) 31–32. 5 Bernard H Oxman, ‘Human Rights and the United Nations Convention on the Law of the Sea’ (1997) 36 ColumJTransnatlL 399, 414; Irini Papanicolopulu, ‘The Duty to Rescue at Sea, in Peacetime and in War: A General Overview’ (2016) 98(2) irrc 491, 494. 6 (adopted 10 December 1982, entered into force 16 November 1994) 1833 unts 3 (unclos). 7 In this study, the terms ‘commercial vessel’ and ‘merchant vessel’ are used interchangeably. 8 Hereafter referred to as imro. 9 Hereafter referred to as imo.

© koninklijke brill nv, leiden, ��20 | doi:10.1163/9789004438255_002

2

General Introduction

conventions. In fact, this study establishes that it is not possible to rely on unclos Article 98 to assess the full extent of the shipmaster’s duty to render assistance at sea. Important obligations are also found in, for example, the 1974 International Convention for the Safety of Life at Sea, as amended,10 the 1979 International Convention on Maritime Search and Rescue, as amended,11 and the 1989 International Convention on Salvage.12 Another contribution of this study is the examination of said duty under branches of international law beyond the law of the sea, particularly human rights law and refugee law. Finally, this research examines to what extent, if at all, violations of international obligations carried out by the shipmaster in rescue operations attract international State responsibility. Chapter 1 of the study provides an overview of the problems raised by irregular migration by sea and the shipmaster’s duty to render assistance. Furthermore, this chapter refers to the specific challenges faced by the shipmaster when conducting imros. This is followed by a review of the historic development of the duty to render assistance at sea in Chapter 2, commencing with an analysis of the genesis of the duty. It then focuses on the international efforts to regulate the duty in the early twentieth century, as reflected in the 1910 International Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea,13 the 1910 International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels,14 and the 1914 International Convention for the Safety of Life at Sea.15 This analysis demonstrates how the main features of the duty under the specified treaties have strongly influenced the contemporary international regime regulating the shipmaster’s duty to render assistance. The legal status of the duty to render assistance at sea in international law is examined in Chapter 3. The chapter commences with an analysis of the codification of the duty as reflected in Article 12 of the 1958 Convention on the High Seas,16 and subsequently in unclos Article 98. It then examines how this duty has been elaborated in other international treaties, in particular those 10 11 12 13 14 15 16

(adopted 1 November 1974, entered into force 1 May 1991) 1184 unts 3 (1974 solas). (adopted 27 April 1979, entered into force 22 June 1985) 1405 unts 97 (1979 sar). (adopted 28 April 1989, entered into force 14 July 1996) 1953 unts 165 (1989 Salvage Convention). (adopted 23 September 1910, entered into force 1 March 1913) ukts 4 (1910 Salvage Convention). (adopted 23 September 1910, entered into force 1 March 1913) ukts 4 (1910 Collisions Convention). (adopted 20 January 1914, not in force) (1914 solas). (adopted 29 April 1958, entered into force 30 September 1962) 450 unts 11 (hsc).

General Introduction

3

adopted under the auspices of the imo: the 1974 solas, the 1979 sar, and the 1989 Salvage Convention. In this analysis, the rules relating to the implementation of the duty under discussion when rendering assistance in imros are emphasised. Chapter 3 also examines the duty to render assistance at sea under customary international law. Special attention is given to establishing to what extent, if at all, major flag States are enforcing the duty to render assistance at sea under national laws. In this respect, the study reviews the practice of specially affected States, particularly those with the largest world tonnage. The chapter concludes by examining the duty to render assistance under soft law,17 notably instruments which aim to address the challenges associated with executing the duty in imros. Chapter 4 examines State measures relating to the duty of the shipmaster to render assistance under the law of the sea. Whilst the previous chapter provides an analysis of the general duty to render assistance under the law of the sea, this chapter demonstrates how the implementation of this shipmaster’s obligation in imros is regulated by rules established by the imo and the International Labour Organization.18 The chapter assesses how the shipmaster’s duty is affected by (i) flag State measures concerning the safety and seaworthiness, crew, and security of the vessel and management of the crew; and (ii) coastal State measures which may be implemented in the internal waters, territorial sea, and contiguous zone. The chapter concludes by examining to what extent, if at all, the rules contained in the relevant treaties reflect customary international law. Chapter 5 evaluates State measures relating to the duty of the shipmaster to render assistance at sea under human rights law and refugee law. The chapter commences by examining the ever-expanding intricate relationship between the law of the sea and human rights law. It focuses on the unique jurisdictional rules found under human rights law and applies them to the shipmaster’s rendering of assistance. The chapter then considers flag, coastal, and search and rescue19 State measures which are required to ensure that the shipmaster protects human rights. It concludes by examining the State measures taken to 17

18 19

In this study, the term soft law is used to describe a variety of written provisions which are non-binding, but deserve the reader’s attention as they may have a catalytic role in developing rules of international law; see generally Alan Boyle, ‘Soft Law in International LawMaking’ in Malcolm D Evans (ed), International Law (5th edn, oup 2018) 119–135; Dinah Shelton, ‘Law, Non-Law and the Problem of Soft Law’ in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (oup 2000) 1–4. Hereafter referred to as ilo. Hereafter referred to as sar.

4

General Introduction

e­ nsure that shipmasters respect the rights of rescued asylum seekers and the principle of non-refoulement at sea. Chapter 6 considers to what extent, if at all, violations of the law of the sea, human rights law, and refugee law by the shipmaster attract State responsibility. The chapter commences by examining general principles of State responsibility under international law. Special attention is given to the rules relevant to the position of the shipmaster in exercising the duty to render assistance, in particular (i) attribution to the State of violations of international obligations committed by private persons and (ii) the exercise of due diligence by the State to prevent such violations. Reference is also made to case studies which attempt to illustrate potential exposure to State responsibility in imros via actions or omissions of the shipmaster. Finally, the work concludes by providing an overview of the main findings of this study.

Chapter 1

The Shipmaster’s Duty to Render Assistance at Sea: Challenges and Considerations Posed by Irregular Migration by Sea 1.1 Introduction Throughout history, political and social changes in various parts of the world have contributed to the phenomenon of irregular migration by sea. The majority of these clandestine mixed migration1 crossings are organised by human smugglers2 and generally take place in small, overcrowded, and unseaworthy vessels.3 As a result, distress situations have become a regular occurrence resulting in numerous human tragedies4 and negatively affecting the safety of navigation.5 Shipmasters are regularly requested to respond to d­ istress at sea

1 According to the International Organization for Migration (iom), mixed migration refers to ‘complex population movements including refugees, asylum seekers, economic migrants and other migrants’; see iom, ‘International Dialogue on Migration 2008 – Challenges of Irregular Migration: Addressing Mixed Migration Flows Discussion Note’ (7 November 2008) MC/INF/294, para 6. 2 The European Police Office (europol) and the International Criminal Police Organization (interpol) estimate that people smuggling operations facilitate more than 90 per cent of the migrant influx coming to Europe; see europol-interpol, ‘Migrant Smuggling Networks: Executive Summary’ (May 2016) 2. 3 United Nations General Assembly (unga), ‘Report of the Secretary-General on Oceans and the Law of the Sea’ (10 March 2008) UN Doc A/63/63, paras 39, 89–97; imo msc, ‘Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea’ (12 June 2001) MSC/Circ.896/Rev.1; United Nations Office on Drugs and Crime (unodc), Issue Paper: Smuggling of Migrants by Sea (unodc 2011) accessed 5 August 2019, 26–32. 4 Particularly in the Mediterranean Sea which has been labelled by various international ora­ nisations as the world’s most dangerous destination for irregular migrants; see Philippe Fargues, ‘Four Decades of Cross-Mediterranean Undocumented Migration to Europe – A Review of the Evidence’ (iom 2017) 1. The United Nations High Commissioner for Refugees (unhcr) reported that between 2014 and 2019, more than 19,000 have died or gone missing in the Mediterranean; see unhcr Operational Portal, ‘Situations’ accessed 6 May 2019. 5 Natalie Klein, Maritime Security and the Law of the Sea (oup 2012) 123; James Kraska and Raul Pedrozo, International Maritime Security Law (Martinus Nijhoff Publishers 2013) 658–659; Anne T Gallagher and Fiona David, The International Law of Migrant Smuggling (cup 2014) 446. © koninklijke brill nv, leiden, ���0 | doi:10.1163/9789004438255_003

6

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situations, which often occur on the high seas. This generally places them in a better position to provide a rapid and effective response than sar State vessels, which may take longer to arrive at sites of distress. This Chapter provides the reader with an overview of developments relating to the shipmaster’s duty to render assistance in the face of irregular migration by sea. It identifies and examines challenges and considerations faced by the shipmaster when conducting imros, and how these burden further the shipmaster’s duty to render assistance at sea. 1.2

The Shipmaster’s Duty to Render Assistance at Sea in Irregular Migrant Rescue Operations

The practice of shipmasters rendering assistance to migrants in distress is not new. During the 1970s Indochinese crisis,6 the establishment of communist governments in Vietnam, Cambodia, and Laos led to more than 1.6 million migrants fleeing by sea to neighbouring States such as Hong Kong,7 Thailand, and Singapore.8 These individuals were labelled ‘boat people’, a term now commonly used to describe migrants who flee countries by sea in small and overloaded boats.9 During this period, thousands of migrants were rescued by shipmasters of passing commercial vessels.10 Overwhelmed by the growing numbers of arrivals by sea, many of the governments of Southeast Asian States refused to allow disembarkation of rescuees.11 The crisis was solved by joint efforts of various nations. Certain countries in Southeast Asian region provided ‘boat persons’ temporary asylum, whilst the United States of America,12 Australia, and other European States offered refugees resettlement.13 Vietnamese officials also took measures to halt ‘boat people’ fleeing the country, p ­ reventing many migrant crossings.14 Whilst the irregular maritime routes in the 1970s

6 7 8 9

Barry Wain, ‘The Indochina Refugee Crisis’ (1979) 58 Foreign Affairs 160, 160–180. Hereafter referred to as HK. Wain (n 6) 116. Mark Cutts, The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action (oup 2000) 79. 10 unga ‘Report of the Secretary-General on Oceans and the Law of the Sea’ (7 November 1979) UN Doc A/34/627 (1979 Report on the Oceans and the Law of the Sea), anx i para 19. 11 Ibid para 21. 12 Hereafter referred to as the US. 13 William Courtland Robinson, ‘The Comprehensive Plan of Action for Indochinese Refugees, 1989–1997: Sharing the Burden and Passing the Buck’ (2004) 17 JRefugStud 319, 319–332. 14 Ibid.

The Shipmaster’s Duty to Render Assistance at Sea

7

a­ ppeared to be largely confined to Southeast Asia, today they can be found in other regions such as the Mediterranean.15 The mv Tampa incident reignited international concerns with respect to the shipmaster’s problems emanating from the duty to render assistance in cases of imros. On 22 August 2001, the Norwegian-registered container ship,16 manned by a twenty-seven member crew,17 commenced its voyage, sailing from Australia to Singapore.18 After four days at sea, the Australian authorities instructed the vessel to assist an Indonesian boat carrying more than 400 migrants in distress.19 The mv Tampa’s shipmaster diverted course and successfully brought on board all migrants, despite exceeding the vessel’s capacity. The situation was further complicated by the fact that a number of rescuees required urgent medical attention.20 In light of these circumstances, the shipmaster felt compelled to request to disembark the migrants at the closest port in Christmas Island.21 The Australian government denied access to the port, and the mv Tampa remained anchored 14 nautical miles22 off the coast for several days.23 After tense diplomatic negotiations, a solution was eventually announced in terms of which Australia, New Zealand, and Nauru agreed on a process of resettlement of the migrants,24 allowing the mv Tampa to proceed with its original voyage.25 The delay was estimated to have cost the shipowner thousands of dollars.26 15 16

See pages 8–11. Jessica E Tauman, ‘Rescued at Sea, But Nowhere to Go: The Cloudy Legal Waters of the Tampa Crisis’ (2002) 11 PacRimL&PolyJ 478, 476. 17 Ibid. 18 Paul Myburgh, ‘We Request You to Take Mercy: Human Flotsam and Inhumane Jettison in the Tampa Incident’, Maritime Law Association of Australia and New Zealand Branch Seminar (Wairakei, 15–17 March 2002) 2. 19 Myburgh (n 18) 1; Frederick J Kenney Jr and Vasilios Tasikas, ‘The Tampa Incident: imo Responses and Perspectives on the Treatment of Persons Rescued at Sea’ (2003) 12 Pacific Rim L&P J 144, 146; Tauman (n 16) 462; Erik Røsæg, ‘Refugees as Rescuees – the Tampa Problem’ (2002) 295 simply 43, 45. 20 Rolf E Fife, ‘The Duty to Render Assistance at Sea: Some Reflections after Tampa’ in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Martinus Nijhoff Publishers 2003) 471–472; Tauman (n 16) 464; Kenney and Tasikas (n 19) 146–147. 21 Fife (n 20) 472. 22 Hereafter referred to as nm. 23 Kenney and Tasikas (n 19) 147. 24 Fife (n 20) 473; Tauman (n 16) 466. 25 Myburgh (n 18) 3; Tauman (n 16) 466. 26 The shipping company, Wallenius Wilhelmsen, had to hire two freighters to replace the mv Tampa during its eight-day delay. It also suffered additional losses as a result of diverting the vessel and provisioning it while it was anchored off Christmas Island; see Tauman (n 16) 476.

8

Chapter 1

In more recent years, the conflict and instability in different regions of the world have led to a dramatic increase in mixed migration by sea, and consequently increased requests for shipmasters to carry out imros. As noted above,27 generally maritime migration routes are determined by the source of problems and political realities in various countries. Turmoil in African States has led to increased irregular migration by sea through the central Mediterranean towards Europe. The problem intensified with the commencement of the Libyan crisis.28 Likewise, mixed migration flows to Europe increased via the eastern Mediterranean route as a result of the Syrian conflict,29 and irregular maritime migration resurfaced in Southeast Asia following heightened tensions and persecution of Rohingya minorities in Myanmar’s northern Rakhine State.30 Irregular maritime migration has also been documented in other regions, including in West Africa,31 the Horn of Africa,32 the Caribbean,33 the Black Sea,34 and the English Channel.35 27 28 29 30

31 32

33

34

35

See pages 5–7. See further Martin Baldwin-Edwards and Derek Lutterbeck, ‘Coping with the Libyan Migration Crisis’ (2018) JEthnMigrStud 1, 4–11. According to statistics provided by unhcr, between 2014 and 2019 more than 1 million refugees and migrants arrived in Europe by sea; see unhcr Operational Portal, ‘Situations’ accessed 27 May 2019. See generally unhcr, ‘Mixed Maritime Movements in South-East Asia in 2015’ (unhcr 2015); see also Sebastien Moretti, ‘Protection in the Context of Mixed Migratory Movements by Sea: The Case of the Bay of Bengal and Andaman Sea Crisis’ (2018) 22 ijhr 237, 237–261. Particularly maritime migration routes from Morocco to Spain; see Regional Mixed Migration Secretariat (rmms), ‘Mixed Migration in West Africa – Data, Routes and Vulnerabilities of People on the move’ (rmms 2017) 8. Increased irregular migration by sea flows have been documented from States such as Ethiopia, Somalia, and Djibouti in the Horn of Africa across the Gulf of Aden towards Yemen; see iom, ‘Irregular Migration by Sea from Horn of Africa to Arabian Peninsula Increases’  accessed 1 June 2019. In particular, maritime crossings from Haiti towards the US, which have persisted for decades; see generally Elizabeth Ferris, ‘Recurrent Acute Disasters, Crisis Migration: Haiti Has Had It All’ in Susan F Martin, Sanjula Weerasinghe, and Abbie Taylor (eds), Humanitarian Crises and Migration: Causes, Consequences and Responses (Routledge 2014) 77–95. Furthermore, in 2018, several maritime crossings through the Caribbean were reported as a result of outflows from the Bolivarian Republic of Venezuela; see unga ‘Report of the Secretary-General on the Oceans and the Law of the Sea’ (11 September 2019) UN Doc A/74/350, para 29. The European Border and Coast Guard Agency (Frontex) reports that in 2017 more than 500 migrants were detected crossing the Black Sea; see Frontex, ‘Risk Analysis for 2018’ (Frontex 2018) 19; see also Kit Gillet, ‘Smugglers Make Test Runs with Migrants Across the Deadly Black Sea Route’ The Guardian (London, 12 September 2017). According to statistics provided by the United Kingdom’s Home Secretary, more than 500 migrants attempted to travel into the country in small boats in 2018; see Aamna ­Mohdin,

The Shipmaster’s Duty to Render Assistance at Sea

9

Despite the emergence of various migration by sea hotspots, the Mediterranean remains the most active maritime passage. It is also a major commercial shipping route. These factors have resulted in unprecedented levels of imros carried out by shipmasters in this region.36 With the escalation of the migration crisis between 2014 and 2015, more than 1,000 merchant ships were involved in rescue operations, assisting more than 65,000 migrants.37 During this period, commercial vessels became the primary sar assets in the central Mediterranean.38 Between 2016 and 2017, there was a slight decline in commercial vessels carrying out imros due to the increased involvement of non-­governmental organisation39 vessels in providing sar services.40 Nevertheless, active commercial vessel involvement in imros continued during these years. Shipping organisations such as the International Chamber of Shipping41 noted that ‘… the number of merchant ships involved in rescue operations has remained relatively constant since 2015 and the average number of persons rescued by each merchant ship remains over 110…’,42 while the European Community of Shipowners’ Association43 found that ‘merchant vessels are still often involved in sar operations in the central, western and eastern Mediterranean’.44 The ‘Channel Migrant Crossings: Who Is Coming and Why?’ The Guardian (London, 28 December 2018); Greg Heffer, ‘Channel Migrants: What Are the Numbers Behind the “Major Incident”’ Sky News (London, 2 January 2019). In 2019, the number of migrants crossing the English Channel towards British shores doubled to over 1,000; see House of C ­ ommons Library, ‘Migrants crossing the English Channel’ (4 November 2019)  accessed 7 ­November 2019. 36 Hernan del Valle, ‘Search and Rescue in the Mediterranean Sea: Negotiating Political Differences’ (2016) 35 rsq 1, 1–2. 37 Jonathan Saul, ‘In Mediterranean, Commercial Ships Scoop Up Desperate Human Cargo’ (21 September 2015) accessed 16 September 2017. 38 Gallagher and David (n 5) 446–447. 39 Hereafter referred to as ngo. 40 For a further analysis of ngo sar activities within the Mediterranean, see generally Ch 4, s 4.2.2; see also Eugenio Cusumano, ‘Emptying the Sea with a Spoon? Non-governmental Providers of Migrants Search and Rescue in the Mediterranean’ (2017) MarPolicy 91, 91– 98; Eugenio Cusumano, ‘Humanitarians at Sea: Selective Emulation Across Migrant Rescue ngos in the Mediterranean’ (2019) 40 ContempSecurPolicy 239, 239–262. 41 Hereafter referred to as ics. 42 Reported in imo, ‘Statement to the International Dialogue on Migration Geneva’ (19 July 2017) accessed 4 June 2018. 43 Hereafter referred to as ecsa. 44 ecsa, ‘Merchant Ships’ Involvement in Migrants’ Search and Rescue Operations Growing Again’ (24 May 2017) accessed 1 June 2017.

10

Chapter 1

continuous efforts of shipmasters in imros also received special recognition from the imo.45 Political developments which occurred between 2017 and 2018 dramatically shifted the paradigm of rescue operations within the Mediterranean. Italy’s introduction of the 12-point Code of Conduct for ngos undertaking Activities in Migrants’ Rescue Operations at Sea, adopted in July 2017,46 placed significant restrictions on ngo sar activities,47 where failure to comply effectively meant refusal of disembarkation into Italy. Furthermore, the European Union48 made efforts to support the Libyan coastguard through military operations designed to curb smuggling, which were entrusted to Italian authorities.49 Patrol boats, training, and funding were provided to Libyan authorities with the aim of intercepting vessels before they could reach Europe.50 A change in government in early 2018 led Italy’s then deputy prime minister to adopt a strict approach to disembarkation. The summer of 2018 marked a steep decline in ngo SAR operations in the central Mediterranean, as various ngo vessels were impounded and their shipmasters prosecuted.51 These practices prompted an immediate reaction from ics, which argued as follows: If ngo vessels are prevented from disembarking rescued persons in Italy, this would also have significant implications for merchant ships and the

45 46

47 48 49

50 51

imo Assembly, ‘Special Recognition for Merchant Vessels and their Crew involved in the Rescue of Mixed Migrants at Sea’ (17 December 2015) Res A.1093(29). Code of Conduct for ngos undertaking Activities in Migrants’ Rescue Operations at Sea (July 2017) accessed 3 December 2018 (Code of Conduct). In fact, several ngos refused to sign the code; see further Eugenio Cusumano, ‘Straightjacketing Migrant Rescuers? The Code of Conduct on Maritime ngos’ (2019) 24 Mediterranean Politics 106, 106–114. Hereafter referred to as EU. In particular the EU’s Naval Force in the Mediterranean’s Operation Sophia; see eg Sophia’s expanded mandate with the adoption of Council Decision (cfsp) 2016/993 of 20 June 2016 amending Decision (cfsp) 2015/778 on a European Union military operation in the Southern Central Mediterranean (eunavfor med operation sophia) [2016] oj L162/18, arts 2a-b. See further Giuseppe Campesi, ‘Italy and the Militarisation of EuroMediterranean Border Control Policies’ in Elaine Burroughs and Kira Williams (eds), Contemporary Boat Migration (Rowman & Littlefield International Ltd 2018) 66–67. European External Service Action, ‘eubam Libya Initial Mapping Report Executive Summary’ (25 January 2017) Doc 56167, 42. Ch 4, s 4.2.2.2.b.

The Shipmaster’s Duty to Render Assistance at Sea

11

movement of trade throughout the Mediterranean, as merchant ships would again have to become involved in a greater number of rescues.52 In fact, the decline in ngo sar operations did indeed lead to a resurge in shipmasters being required to provide assistance, with negative commercial implications. One high-profile case involved the Danish-flagged Alexander Maersk,53 which was instructed by Rome’s rescue co-ordination centre to assist a distressed vessel off the Southern coast of Italy.54 The shipmaster safely brought on board 113 migrants, but was left waiting out at sea for five days before being authorised to disembark in Pozzallo on 26 June 2018.55 Incidents such as the Alexander Maersk rescue and other imros, have placed increased burdens on those who have to exercise the duty to render assistance, particularly the shipmaster. The following sections explore the legal and practical challenges faced in the implementation of this duty to render assistance at sea in light of contemporary realities associated with imros. 1.3

Safety, Seaworthiness, and Security Challenges

The number of migrants rescued by a commercial vessel often outnumbers its crew.56 This may create major difficulties in ensuring safe and swift rescues, 52

ics, ‘Shipping Industry Very Concerned about Italian Policy on Migrants Rescued at Sea’ (11 June 2018) ­accessed 20 June 2018; see also ecsa, ‘European Shipowners: Italian Policy of Refusing Migrants to Enter its Ports Alarming’ (11 June 2018) accessed 20 June 2018. 53 World Maritime News, ‘Merchant Ships Hostage of Italian Immigration Policy’ (28 June 2018) accessed 1 August 2018. 54 Ibid. 55 ‘Italy Lets in Container Ship Carrying Migrants after Standoff Lasting Days’ The Times of Malta (Birkirkara, 26 June 2018). 56 This is especially true since improvements in technology have led to decreased crew numbers and an attendant reduction in facilities for crew. Commercial vessels are typically manned by a small crew of around twenty to thirty people. See further Amnesty International (ai), ‘Europe’s Sinking Shame: The Failure to Save Refugees and Migrants at Sea’ (ai 2015) eur 03/1434/2015 (2015 ai Report) 17; Record of the Views of the Inter-agency meeting with the Maritime Industry on Mixed Migration, held at imo on 30 October 2017 (2017 Inter-agency Report) accessed 1 August 2018, para 1.4.

12

Chapter 1

especially in perilous weather conditions. Commercial vessels are not generally designed to approach much smaller vessels, which are often being steered by unskilled people and rescuees.57 Merchant vessels’ high sides and lack of equipment for the transfer of people increase risk during rescues.58 Such dangers were evidenced in the 2015 King Jacob incident involving a Portugueseregistered 152-metre cargo ship.59 On 18 April 2015, the vessel’s shipmaster, on instructions from Italian authorities, attended to a fishing vessel in distress off Lampedusa.60 The twenty-seven-meter-long boat was carrying more than 800 migrants.61 The shipmaster described how on approaching the fishing vessel, the steerer allegedly manoeuvred erratically and rammed into the King Jacob.62 The migrants on board the fishing vessel appeared to have panicked and shifted to one side of the vessel, causing it to capsize. Only twenty-eight people were known to have survived the incident.63 This event prompted an immediate reaction from then ics Secretary General, who stated that the: …tragic events of the weekend seem to have shown, merchant ships are really not best equipped to deal with such large-scale operations involving hundreds of people.64 Crew members have been known to put their own lives at risk when assisting in imros,65 and bringing the migrants aboard the vessel could increase health and safety concerns. Crew members may be exposed to infectious diseases and illnesses,66 which may result in the vessel’s quarantine or lead States to ­prohibit

57 58 59

2017 Inter-agency Report, para 1.3. Gallagher and David (n 5) 446; 2015 ai Report (n 56) 17. Jim Yardley and Dan Bilefsky, ‘Migrant Boat Captain Steered Toward Tragedy in Mediterranean, Authorities Say’ The New York Times (New York, 21 April 2015). 60 Julian Miglierini, ‘Migrant Tragedy: Anatomy of a Shipwreck’ bbc News (London, 24 May 2016). 61 Ibid. 62 Yardley and Bilefsky (n 59). 63 Ibid. 64 ecsa, ‘Shipping Industry Calls on EU Leaders to be Decisive and Immediately Increase Mediterranean Search and Rescue Resources’ (23 April 2015) accessed 27 November 2017. 65 During the mv Tampa rescue operation, the vessel’s first officer was reported to have leapt between the stricken ferryboat and the mv Tampa in order to bring the migrants to safety; see Barbie Dutter, ‘Australia Let Us Down, Says Captain of Refugee Ship’ The Telegraph (London, 7 September 2001). 66 Saul (n 37).

The Shipmaster’s Duty to Render Assistance at Sea

13

the vessel from entering their waters.67 This was a major concern in the wake of the West African Ebola epidemic in 2014, when certain States prevented vessels carrying persons affected by the virus to dock at their ports. In September 2014, Malta turned away the mv Western Copenhagen on suspicion that at least one person on board was infected by the Ebola virus. The vessel had left from Guinea, one of the areas most affected by the disease, and was en route to Ukraine. After being refused entry into Malta’s internal waters, the vessel finally docked in Sicily.68 The shipmaster and crew may also face violent and armed migrants.69 During the mv Tampa affair, the rescuees on board threatened to use violence if they were disembarked in Indonesia.70 Moreover, concerns have been raised that terrorists may pose as migrants to obtain access to a State territory.71 Seafarers employed on merchant vessels are rarely experienced with undertaking or trained to undertake imros.72 Rescue efforts may take days to complete, and their toll on a stressed crew may be significant.73 Additionally, boarding merchant vessels may pose risks to the migrants themselves. Such vessels rarely have enough provisions to accommodate large groups of migrants, and they seldom have the resources to attend to any urgent medical requirements.74 It may not be possible for the shipmaster to maintain law and order; he may be 67

For a detailed discussion on the issue of disembarkation of rescued migrants; see Ch 3, ss 3.2.3.3.c and 3.4.1.4. 68 Miriam Dalli, ‘Malta Turns Away Merchant Ship over Ebola Suspicion’ Malta Today (San Gwann, 18 September 2014); ‘Ebola Outbreak: Malta Rejects Ship Carrying Suspected Case’ bbc News (London, 18 September 2014); Herman Grech, ‘Malta Bars Ship Carrying Suspected Ebola Patient’ The Times of Malta (Valletta, 18 September 2014). 69 See also the El Hiblu 1 and Vos Thalassa incidents discussed in Ch 4, s 4.2.1.3.a. 70 Tullio Scovazzi, ‘The Particular Problems of Migrants and Asylum Seekers Arriving by Sea’ in Laura Westra, Satvinder Juss, and Tullio Scovazzi (eds), Towards a Refugee Oriented Right of Asylum (Routledge 2016) 202. 71 This danger was reflected in the allegation that one of the 2015 Paris bombers entered Greece posing as a refugee. He was purportedly rescued from a sinking migrant vessel; see Ben Farmer, ‘Who is Salah Abdeslam and who were the Paris terrorists? Everything we know about the isil attackers’ The Telegraph (London, 18 March 2016) accessed 1 September 2018. See also ‘Nine men with links to terrorism caught in Tunisia before embarking on boat to Europe’ The Malta Independent (St.Julian’s, 14 August 2018); and Valsamis Mitsilegas, ‘Immigration Control in an Era of Globalization: Deflecting Foreigners, Weakening Citizens, Strengthening the State’ (2012) 19 IndJGlobalLegalStud 3, 11–12. 72 Asne K Aarstad, ‘The Duty to Assist and its Disincentives: The Shipping Industry and the Mediterranean Migration Crisis’ (2015) 20 Mediterranean Politics 413, 415. 73 2017 Inter-agency Report, para 1.4. 74 Ibid.

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unable, for example, to monitor the movements of all rescuees. The latter could wander off to restricted areas of the ship such as the engine room or cause damage to the cargo or the vessel itself.75 1.4

Commercial Challenges

The shipmaster is considered to be the representative of the shipowner, and is required to implement the commercial objectives of the ship’s voyage.76 This implies that the shipmaster has to consider commercial challenges associated with carrying out imros. The problem here is that most rescue operations are of an urgent nature and generally have negative commercial consequences. Indeed, it may be argued that in the face of the overwhelming duty to save lives at sea, commercial considerations play a subsidiary role; it appears difficult to defend the argument that a rescue operation should not be undertaken because of commercial costs. Migrant rescue operations tend to be complex and costly.77 Ambivalence appears to exist regarding which parties should be responsible for bearing the costs associated with imros.78 Whilst certain expenses may be covered by the vessel’s insurance,79 much will depend on the type of insurance cover. A lack 75 76

77

78 79

Merchant vessels may be carrying highly flammable and dangerous cargoes that could cause major accidents if tampered with; see James Politi and Joel Lewin ‘Shipping Companies Warn of Migrant Rescue Risks’ The Financial Times (London, 18 January 2015). Nikoleta Radionov, ‘Presumption of the Shipmaster’s Criminal Responsibility for Narcotic Drugs in Ship’s Cargo – Maritime Reality Check’ (2010) 49 cml 269, 294; John A C Cartner, Richard P Fiske, and Tara L Leiter, The International Law of the Shipmaster (Informa 2009) 122–124. According to analysts, costs for a single imro may exceed 100,000 US dollars; see Jackie Northam, ‘Merchant Ships Called on to Aid Migrants in the Mediterranean Feel the Strain’ National Public Radio (Washington, DC, 22 April 2015) accessed 2 January 2018. For a review of different types of costs associated with commercial vessel involvement in imros, see Richard L Kilpatrick Jr and Adam Smith, ‘The International Legal Obligation to Rescue During Mass Migration at Sea: Navigating the Sovereign and Commercial Dimensions of a Mediterranean Crisis’ (2016) 28 usf mlj 141, 154–155. Richard L Kilpatrick Jr, ‘The “Refugee Clause” for Commercial Shipping Contracts: Why Allocation of Rescue Costs is Critical During Periods of Mass Migration at Sea’ (2018) 46 GaJIntl&CompL 403, 412–431. Martin Davies, ‘Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea’ (2003) 12 PacRimL&PolyJ 109, 137–139; Aarstad (n 72) 11; Tauman (n 16) 16; Kilpatrick and Smith (n 77) 159.

The Shipmaster’s Duty to Render Assistance at Sea

15

of adequate insurance may expose the shipowner to hefty financial and commercial losses;80 for example, providing assistance may entail loss of profit or damage due to, inter alia, deviation or delayed disembarkation. A review of major Protection and Indemnity81 Clubs’ insurance rules demonstrates that most coverage provided extends to limited expenses related to rescues or landing of rescued refugees,82 specifically costs of fuel, insurance, port charges, wages, stores, and provisions.83 However, most Clubs do not cover costs incurred in respect of the delay, such as the loss of freight in hire for the vessel or demurrage on, detention of, or delay of the vessel.84 For instance, Rule 3, section 2.13 of the American Club Rules explicitly excludes cover for consequential loss of profit or depreciation arising from rescue operations.85 Delays in the vessel’s voyage may be further increased due to the reluctance of States to agree on the disembarkation of migrants, a concern which was exemplified by the events surrounding the mv Tampa86 and more recent cases such as that of the mv Salamis. On 4 August 2013, the Rome rescue co-­ ordination centre instructed the shipmaster of the Liberian-flagged mv Salamis to rescue a group of migrants off Libya.87 After embarking 102 migrants, Italy instructed the shipmaster to proceed to the Libyan port of Khoms, which they considered to be the nearest port of safety to the site of rescue.88 However, the shipmaster disregarded Italy’s orders and proceeded to Malta, his next port of call, hoping to avoid delays and any eventual commercial costs and

80 81 82 83

84 85 86 87 88

William Spindler, ‘Between the Devil and the Deep Blue Sea’ (2007) Refugees Magazine 4; see also Tauman (n 16) 476–479; Gallagher and David (n 5) 443; Politi and Lewin (n 75). Hereafter referred to as P&I. The American Club By-Laws, Rules, List of Correspondents 2019, s 12. Ibid r 1, s 12; West of England, Rules of Classes 1 & 2, 2019, Rules of Class 1, pt 1, s 5; Standard Club, P&I and Defence Rules and Correspondents, 2019/20, s C, r 3.4; Gard Rules 2019, pt ii, ch 1, r 32; The London P&I Club, Class 5 The Protection and Indemnity Rules 2019/2020, rr 9.7.1.2 and 9.9; Skuld 2019 P&I Rules, rr 11.1.2(c) and (d); UK P&I Club Rules & Articles 2019 for UK (Europe), UK P&I N.V., r 2(7) and (8). See eg Skuld 2019 P&I Rules, r 11.2; Gard Rules 2019, pt ii, ch 1, r 32; see further Gard, ‘Refugee Rescue – P&I Cover and Assistance’ accessed 25 June 2019. The American Club By-Laws, Rules, List of Correspondents 2019, r 3, s 2.13. Ch 1, s 1.2. Sharon Attard, Christine Cassar, and Jean-Pierre Gauci, ‘The Malta Human Rights Report 2013’ (The People for Change Foundation 2013) (2013 Malta Human Rights Report) 12. Patricia Mallia, ‘The mv Salamis and the State of Disembarkation at International Law: The Undefinable Goal’ (2014) 18 asil Insights accessed 6 May 2017.

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­inconvenience.89 On approaching the Valletta Grand Harbour, he was denied permission to disembark the migrants and was ordered to remain outside the Island’s territorial sea.90 It was only after intense diplomatic discussions between Italy and Malta, as well as increased pressure from international organisations such as the unhcr, that the Italian authorities finally agreed to accept the migrants and the mv Salamis docked in Syracuse.91 In some cases, migrants themselves may induce delay when they refuse to be rescued or disembarked in a particular State. On 22 October 2014, Malta instructed the cs Caprice to divert its course and attend to a vessel in distress carrying over 500 migrants.92 The shipmaster made contact with the migrants on board the vessel, informing them that they were going to be rescued and brought on board; they repeatedly refused assistance, as they believed that he would not take them to their intended destination which was Italy. It took days before the migrants were safely embarked on the cs Caprice.93 1.5

Human Rights and Refugee Rights Considerations

The challenges mentioned above may be further complicated by the shipmaster’s duty to protect human rights. The shipmaster and his crew must treat rescued migrants humanely once they are taken aboard.94 Furthermore, some may be entitled to additional protection under refugee law.95 According to the well-established principle of non-refoulement, the shipmaster may not disembark rescuees to a place where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group, or political opinion.96 This may not always be the easiest task for the shipmaster, considering the lack of opportunities to assess an individual’s

89 2013 Malta Human Rights Report 12. 90 Ibid. 91 ‘Migrants Expected to be Taken to Italy’ The Times of Malta (Valletta, 6 August 2013). 92 Saul (n 37). 93 Ibid. 94 For a detailed an examination of human rights considerations relating to the shipmaster’s duty to render assistance at sea; see Ch 5, s 5.2. 95 For an in-depth discussion of international protection afforded to refugees; see generally Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) Part 1; James C Hathaway, The Rights of Refugees under International Law (3rd edn, oup 2005) 154–270. For an analysis of refugee law considerations relating to the duty of the shipmaster to render assistance at sea; see Ch 5, s 5.3. 96 Ch 5, ss 5.3.1–5.3.2.

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17

s­ tatus out at sea, as well as the general reluctance of coastal States to accept rescued migrants.97 1.6 Conclusion This Chapter examined major challenges and considerations surrounding imros, which are creating major burdens for the shipmaster. It has recently been reported that shipping companies are avoiding shipping routes where they are likely to encounter migrant vessels, as seafarers are reluctant to agree to work on such routes.98 unhcr also reports that certain vessels have even become unwilling to disclose their positions to avoid being directed by sar authorities to assist in imros.99 In the following chapters, the effects of these challenges on the shipmaster’s duty to render assistance at sea are analysed. It is now proposed to commence this analysis with a review of the historic development that led to the formulation of rules regulating the duty to render assistance at sea. 97 98 99

Gallagher and David (n 5) 443. Speech given by Emanuele Grimaldi, President of Grimaldi Lines, Symposium on Maritime Search and Rescue: The Ship and the Shipowner (imo International Maritime Law Institute, Malta, 29 May 2015). unhcr, ‘unhcr Proposals to Address Current and Future Arrivals of Asylum-seekers, Refugees and Migrants by Sea to Europe’ (unhcr 2015).

Chapter 2

Historic Development of the Duty to Render Assistance at Sea 2.1 Introduction This chapter examines the historic development of the duty to render assistance at sea. It begins with an analysis of the genesis of the duty before moving on to an examination of the early efforts to regulate the duty in the 1910 Salvage Convention, the 1910 Collisions Convention, and the 1914 solas, which have had a considerable influence on international rules regulating the duty. It concludes by evaluating the extent to which these efforts provided the legal basis for the contemporary rules regulating the duty to render assistance. 2.2

The Genesis of the Duty to Render Assistance at Sea

The duty to render assistance to those in peril at sea has long been a well-­ established norm of the law of the sea.1 It has been held that the international obligation to assist persons in distress is rooted in the moral obligation to protect seafarers’ lives at sea.2 For centuries, seafaring was considered a dangerous and risky profession.3 The shipmaster and crew set out on long voyages, bracing the perils of the sea, often having little or no communication with people on land. This necessitated that seafarers assist each other when encountering difficulties at sea. The increase in maritime disasters in the early nineteenth century and the basic humanitarian considerations to save lives at sea4 were 1 Sophie Cacciaguidi-Fahy, ‘The Law of the Sea and Human Rights’ (2007) 19 Sri Lanka jil 85, 85–107; Raul (Pete) Pedrozo, ‘Duty to Render Assistance to Mariners in Distress During Armed Conflict at Sea: A U.S. Perspective’ (2018) 94 IntLS 102, 106. 2 Jason Parent, ‘No Duty to Save Lives, No Reward for Rescue: Is that Truly the Current State of International Salvage Law?’ (2006) 12 AnnSurvIntL&CompL 87, 88; KX Li and Jim Mi Ng, ‘International Maritime Conventions: Seafarers’ Safety and Human Rights’ (2002) 33 JMarL&Com 381, 386–387. 3 Jeffrey Maltzman and Mona Ehrenreich, ‘The Seafarer’s Ancient Duty to Rescue and Modern Attempts to Regulate and Criminalise the Good Samaritan’ (2015) 89 TulLRev 1267, 1267. 4 Ibid; see also Scaramanga v Stamp (1880) 5 cpd 295, 304, where Chief Justice Cockburn succinctly described the humanitarian basis underlying the duty to render assistance at sea: ‘[t] he impulsive desire to save human life when in peril is one of the most beneficial instincts of

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influential in ensuring the development of international treaty rules imposing an obligation to assist persons in distress. 2.3

Early International Efforts to Regulate the Duty to Render Assistance at Sea

Before 1910, no international convention existed that addressed the duty to render assistance at sea.5 However, with the increase in shipping in the midnineteenth century, the death of seafarers and passengers at sea rose dramatically.6 The high number of casualties was mainly due to the use of u ­ nseaworthy or overloaded vessels, which inevitably sank.7 This dramatic loss of life at sea reinforced the importance of the duty to render assistance, which could no longer remain unregulated.8 Against this backdrop, the international community felt the need to adopt treaty rules relating to the duty to render assistance.9 2.3.1 The 1910 Salvage Convention Some of the earliest international discussions on the duty to render assistance took place within the context of the Comité Maritime International10’s efforts to harmonise maritime laws.11 For this purpose, several conferences were held to achieve uniformity of laws in the field of salvage and collisions laws. Particularly noteworthy is the 1910 Brussels Conference on Maritime Law,12 which



humanity, and is nowhere more salutary in its results than in bringing help to those who, exposed to destruction from the fury of winds and waves, would perish if left without assistance. To all who have to trust themselves to the sea, it is of the utmost importance that the promptings of humanity in this respect should not be checked or interfered with by prudential considerations as to injurious consequence which may result to a ship or cargo from the rendering of the needed aid’. 5 Frederick J Kenney Jr and Vasilios Tasikas, ‘The Tampa Incident: imo Responses and Perspectives on the Treatment of Persons Rescued at Sea’ (2003) 12 Pacific Rim L&P J 144, 149. 6 Nicolette Jones, The Plimsoll Sensation: The Great Campaign to Save Lives at Sea (Little Brown Book Group 2013) 269. 7 Ibid. 8 Wilbur Smith, ‘The Duty to Render Assistance at Sea: Is it Effective or Adrift?’ (1971) 2 CalWIntlLJ 146, 147. 9 Ina H Wildeboer, The Brussels Salvage Convention: Its Unifying Effect in England, France, Germany, Belgium and the Netherlands (AW Sythoff 1965) 1; James Pugash, ‘The Dilemma of the Sea Refugee: Rescue Without Refuge’ (1977) 18 HarvIntlLJ 577, 578. 10 Hereafter referred to as cmi. 11 John Reeder, Brice on Maritime Law of Salvage (5th edn, Sweet and Maxwell 2011) 13. 12 Hereafter referred to as the 1910 Brussels Conference; see further Ch 2, s 2.3.2.

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­ repared the way for the adoption of the 1910 Salvage Convention and the 1910 p Collisions Convention.13 The 1910 Salvage Convention was the first international treaty to cover the duty to render assistance at sea in Article 11:14 Every master is bound, so far as he can do so without serious danger to his vessel, her crew and her passengers, to render assistance to everybody, even though an enemy, found at sea in danger of being lost. The owner of a vessel incurs no liability by reason of contravention of the above provision. It is noteworthy that the convention required the shipmaster to render assistance to every person in distress, ‘even though an enemy’. This suggests the growing recognition of the need to protect human life, even in the case of persons who were nationals of State parties which were at war with each other.15 This illustrates how extensive the duty was considered, even at this early stage of its development, as generally in such circumstances the Convention would not apply.16 The wording of Article 11(1) appears to propose that the duty to render assistance imposed a personal obligation on the shipmaster.17 This obligation would, however, appear difficult to sustain without appropriate flag State measures to enforce it, as is in fact required by Article 12 of the convention.18 The 13

14 15

16 17 18

Michael Kerr, ‘The International Convention on Salvage 1989 – How It Came To Be’ (1990) 39 iclq 530, 531; Mark Rowbotham, Introduction to Marine Cargo Management (2nd edn, Informa Law 2014) 138; Mišo Mudrić, The Professional Salvor’s Liability in the Law of Negligence and the Doctrine of Affirmative Damages (lit 2013) 59. Parent (n 2) 91; Robert D Peltz, ‘Adrift at Sea – The Duty of Passing Ships to Rescue Stranded Seafarers’ (2014) 38 TulMarLJ 363, 367. Pedrozo (n 1) 107; Irini Papanicolopulu, ‘The Duty to Rescue at Sea, in Peacetime and in War: A General Overview’ (2016) 98(2) irrc 491, 496; Erik Røsæg, ‘Refugees as Rescuees – the Tampa Problem’ (2002) 295 simply 43, 51. The requirement to render assistance to everybody at sea, even if considered an enemy, reflected the state of war at the time and was dropped in the modern convention dealing with salvage; see Ch 3, s 3.2.3.4.a. 1910 Salvage Convention, Art 14 provides that ‘[t]his Convention does not apply to ships of war or to Government ships appropriated exclusively to a public service’. This differs eg from the position under unclos in terms of which the obligation to render assistance is imposed on the flag State; see Ch 3, s 3.2.2.3.a. Certain scholars, such as Smith, have critised this provision. He argues that there may be no guarantee that State parties will enact measures to prevent a breach of the duty within a reasonable time, therefore limiting the effectiveness of the 1910 Salvage Convention Article 11 regulating the duty to render assistance; see Smith (n 8) 148. He further contends that the scope of the duty in Article 11 is also restricted in light of article 15: ‘Article 11 only applies as between vessels belonging to the States of the High Contracting Parties’. This

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latter binds State parties to take measures in their respective legislatures to prevent infringements of the duty.19 Significantly, the 1910 Salvage Convention provided that the shipowner incurred no liability for a contravention of the shipmaster’s duty to render assistance.20 Accordingly, shipowners did not need to warrant that their shipmasters adhere to the convention.21 Whilst these early treaty formulations22 dealt with the responsibility of the shipowner, granting him a waiver, significantly, this was not included in later treaties.23 The duty to render assistance, even in its earliest codification, was not considered absolute but was qualified by the condition that it need only be exercised by the shipmaster if no serious harm would be caused to his vessel, crew, or passengers.24 This reasonable limitation persisted in subsequent treaties25 and appears in unclos26 and imo instruments.27 An important issue discussed during the 1910 Brussels Conference was the question of a reward for life salvage. Traditionally, the law of salvage is based on the premise that anyone who assists in saving maritime property is entitled to a reasonable reward for the efforts expended, and those who have benefitted from such efforts should contribute to the reward in proportion to the value of their interest saved.28 Historically, the shipmaster’s duty to save life at sea did not entitle him to a salvage reward. This led to a natural temptation among shipmasters and seafarers to save property first and look for life later.29

19

20 21 22 23 24 25 26 27 28 29

would appear to be a correct interpretation in light of Article 34 of the Vienna Convention on the Law of Treaties (Vienna, adopted 23 May 1969, entered into force 27 January 1980) 1155 unts 331, which provides that: ‘A treaty does not create either obligations or rights for a third State without its consent’. See 1910 Salvage Convention, Art 12. Para 2 of this provision holds that State parties must ‘communicate to one another as soon as possible the laws or regulations which have already been or may be hereafter promulgated in their States’ giving effect to Art 12. Pugash argues that despite the absence of the identification of specific measures to be adopted by State parties in accordance the 1910 Salvage Convention, civil or criminal measures are necessary; see Pugash (n 9) 580. Civil and criminal measures to enforce the shipmaster’s duty to render assistance at sea in State practice are examined in Ch 3, s 3.3.2. 1910 Salvage Convention, Art 11(2). Smith argues that this omission may weaken the structure of the duty, as it mainly relates to commercial activities; see Smith (n 8) 149. See also the 1910 Collisions Convention, Art 8(3) discussed in Ch 2, s 2.3.2. With the exception of the 1989 Salvage Convention; see Ch 3, s 3.2.3.4.a. 1910 Salvage Convention, Art 11(1). Ch 3, s 3.2.3.4. Ibid s 3.2.2.3. Ibid s 3.2.3. Francis Rose, Kennedy & Rose: Law of Salvage (9th edn, Sweet and Maxwell 2017) 124; Reeder (n 11) 124. Steven F Friedell, ‘Salvage and the Public Interest’ (1982) 4 CardozoLRev 431, 431.

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During the 1910 Brussels Conference, whether a reward for life salvage should be paid attracted considerable interest.30 There were several objections of both a moral and practical nature relating to the payment of an award.31 Some States considered the duty to be a moral obligation to preserve life and argued that it would be unethical to expect payment for such an act. Other difficulties related to who would be required to pay the reward and the fact that in practice, the saving of life cannot be valued in monetary terms as in the case of salvage of property or cargo.32 These issues were addressed in the 1910 Salvage Convention Article 9,33 which provided that although no remuneration was due from rescued persons34 (subject to relevant national laws) in principle: [s]alvors of human life, who have taken part in the services rendered on the occasion of the accident giving rise to salvage or assistance, are entitled to a fair share of the remuneration awarded to the salvors of the vessel, her cargo, and accessories. The 1910 Salvage Convention achieved considerable success and general support. Only four years after its adoption, over 50 States had adhered to the convention.35 This support may be viewed as significant considering that at the time, it is estimated that there were some 60 States. Furthermore, the parties to the convention included major maritime nations covering most of the world’s tonnage.36 It is submitted that the 1910 Salvage Convention represents an important landmark in the development of the duty to render assistance.37 The formulation of the duty found under the 1910 Salvage Convention encouraged and stimulated its widespread acceptance. This may be further evidenced by the fact that since its adoption in 1910, practically every subsequent international convention dealing with the safety of life at sea has incorporated wholly or partly the essential obligation set forth in Article 11.38

30 31 32

Wildeboer (n 9) 243. Lawrence Jarett, ‘The Life Salvor Problem in Admiralty’ (1954) 63 YaleLR 779, 779. Wildeboer (n 9) 243; Arnold W Knauth, ‘Aviation and Salvage: The Application of Salvage Principles to Aircraft’ (1936) 36 ColumLRev 224, 228. 33 1910 Salvage Convention, Art 9. 34 Wildeboer (n 9) 245. 35 Sarah Fiona Gahlen, Civil Liability for Accidents at Sea (Springer 2015) 40–41. 36 Ibid. 37 This observation is supported by Gahlen who recognises that ‘[c]onsidering the political tensions between the major maritime nations at that time, the codification of this provision, reflecting the customary law in place, can be seen as an important achievement’; see Gahlen (n 35) 41. 38 Pugash (n 9) 579. These treaties are examined in Ch 3, s 3.2.

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2.3.2 The 1910 Collisions Convention Collisions frequently give rise to distress situations.39 In the 1880s, leading maritime States had in place domestic legislation dealing with the prevention of collisions at sea.40 However, this legislation was not uniform, particularly when it came to allocating liability to the shipowners of colliding vessels.41 The 1910 Brussels Conference discussed above42 led to the adoption of the 1910 Collisions Convention, which established international rules regulating the liability of the owners of vessels involved in collisions.43 The drafters of the 1910 Collisions Convention wished to ensure that in the period following a collision, a reciprocal duty to render assistance would fall on the shipmasters involved. This duty was formulated in Article 8, which stated that following a collision, the shipmaster had to assess whether the other vessel was in need of assistance; he was only relieved of his duty if the exercise of such would cause ‘serious damage’ to his own vessel, crew, and passengers.44 However, this standard could prove more difficult to assess in cases of distress arising from collisions, where substantial damage may have already been caused to the vessels involved. Under the 1910 Collisions Convention, the shipmasters of the colliding vessels are also, as far as possible, to provide certain particulars to one another, including the names of their vessels and the ports to which their the vessels are bound.45 39 40 41 42 43

44 45

Philippe Boisson, Safety at Sea: Policies, Regulations & International Law (Bureau Veritas 1999) 32; Francesco Berlingieri, International Maritime Conventions: Volume 2 Navigation, Securities, Limitation of Liability and Jurisdiction (Informa Law 2015) 28. Boisson (n 39) 350. Berlingieri (n 39) 3. Ch 2, s 2.3.1. Eg if the collision is accidental or caused by force majeure, or if the cause of the collision is left in doubt, the damages are borne by those who have suffered them; see 1910 Collisions Convention, Art 2; William Tetley, International Maritime and Admiralty Law (Éditions Yvon Blais 2002) 228–230. Similarly, this limitation is found in the 1914 solas, Art 37 which also consolidates the duty to render assistance; see Ch 2, s 2.3.3. Berlingieri reflects on the inclusion of such a provision in article 8 of the 1910 Collisions Convention, and observes that: ‘[t]he purpose of the information mentioned in art. 8 is first, to identify the other ship and, secondly, to ascertain where she is destined in order to be able to arrest her in order to obtain security and to carry out a survey of the damage caused by the collision. It is not clear why mention is made of the port from which the ship comes, unless that is to enable carrying out enquiries about her seaworthiness. The statement that the information must be provided ‘so far as possible’ has been added in order to take into account the adverse effect that the collision may have had on the means of communication, which, when the Convention was drafted and adopted, almost certainly were only the telegraph and the signalling flags. Insofar as the port of destination is concerned, the possibility of each ship reaching it depends on the seriousness of the damage caused by the collision and the need for the ship to obtain assistance by a salvage

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Chapter 2

Furthermore, as in Article 11 of the 1910 Salvage Convention,46 Article 8 of the 1910 Collisions Convention provides that the shipowner of the vessel shall incur no liability for breaches of the shipmaster’s duty to render assistance and to provide information. The similar wording of 1910 Collisions Convention Article 8 and the 1910 Salvage Convention Article is unsurprising given that the texts of both Conventions were based on formulations adopted by cmi.47 However, whilst the obligation to render assistance under the 1910 Salvage Convention appears more general, covering all situations of distress at sea, under the 1910 Collisions Convention, the duty is restricted to collisions due to the nature of the subjectmatter of the convention. Both Conventions have had a significant influence on later treaty formulations regarding the duty to render assistance,48 which have incorporated the substance of the relevant provisions of the 1910 Salvage Convention and 1910 Collisions Convention. 2.3.3 The 1914 solas The 1912 sinking of the rms Titanic49 raised concerns regarding the effectiveness of safety standards at sea in force at the time.50 As the result of a United Kingdom51 initiative, the 1913 Safety of Life at Sea Conference was convened in London52 and attended by thirteen maritime States.53 Following intense and company, in which event the choice of the destination would probably be made by the salvage company’. See Berlingieri (n 39) 28. 46 Ch 2, s 2.3.1. 47 Ibid. 48 See eg hsc, Art 12(1)(c), and unclos, Art 98(1)(c); see Ch 3, ss 3.2.1.3 and 3.2.2.3.a. 49 On the night of 14 April 1912, a distress call was sent out to neighbouring ships, but none managed to reach the rms Titanic before it sank. More than 1,500 lives were lost that night marking the tragedy as one of the worst peacetime maritime disasters in history; see Allianz Global Corporate & Specialty (agcs), ‘Safety and Shipping 1912–2012: From the Titanic to the Costa Concordia’ (Cardiff University’s Seafarers’ International Research Centre 2012) accessed 21 January 2019. 50 Boisson notes that this event prompted various standard-setting processes such as the convening of a wireless telegraphy conference held in London, only three months after the sinking of the rms Titanic. The conference led to the adoption of regulations requiring telecommunication systems and radio equipment to be compulsory onboard ships; see Boisson (n 39) 53–54. 51 Hereafter referred to as UK. 52 The conference assembled in London from 23 November 1913 to 20 January 1914; see Everett P Wheeler, ‘International Conference on Safety of Life at Sea’ (1914) 8 ajil 758, 758. 53 States which participated in the conference included the US, the UK, Spain, France, ­Germany, Austria-Hungary, Belgium, Denmark, Netherlands, Norway, Sweden, and Italy; see Wheeler (n 52) 758.

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lengthy deliberations on various technical and legal maritime safety issues,54 the 1914 solas was adopted. For the first time, international rules governing the safety of shipping were introduced, dealing with inter alia the safety of navigation, life-saving appliances, fire prevention, and firefighting appliances.55 A key decision of the 1913 Safety of Life at Sea Conference was to reaffirm the duty to render assistance under the 1914 solas. Furthermore, to enhance the capacity of the shipmaster, particularly with respect to implementing said duty, the convention required shipowners to equip their vessels with efficient distress communications technology, such as ‘radiotelegraph equipment’.56 From discussions which took place in the 1913 Conference’s Committee on Wireless Telegraphy, it emerged that delegates were at times unsure of how to address questions which had already been decided upon by the 1910 Salvage Convention. Belgium pointed out that there might be serious difficulties involved in raising the principle of the obligation to render assistance already required under the 1910 Salvage and Collisions Conventions.57 Although the minutes of the committee do not reveal the precise nature of these difficulties, delegates were most likely trying to avoid the danger of conflicting regimes, particularly considering that these were in a state of development.58 In an effort to harmonise the regimes, the committee recommended that the duties under the 1914 solas Chapter v Article 37 be carried out in accordance with the provisions of the 1910 Salvage Convention, in particular Article 11.59

54

Four separate committees were set up at the conference: (1) Committee on Life Saving Appliances, (2) Committee on Safety of Navigation, (3) Committee on Safety of Construction, and (4) Committee on Wireless Telegraphy. The reports and minutes of the proceedings of each committee are available at imo, ‘History of solas (The International Convention for the Safety of Life at Sea)’ accessed 21 January 2019. 55 imo, ‘Focus on imo – solas: the International Convention for the Safety of Life at Sea, 1974’ (October 1998) accessed 21 January 2019. See also Efthimios E Mitropoulos, ‘imo 60 Years in the Service of Shipping’ in Norman A Martínez Gutiérrez (ed), Serving the Rule of International Maritime Law: Essays in Honour of Professor David Joseph Attard (Routledge 2010) 8. 56 1914 solas, ch v, Art 31. 57 International Conference on the Safety of Life at Sea (1913–1914), Committee on Wireless Telegraphy, ‘Report and Minutes of Proceedings’ accessed 25 January 2019. 58 Ibid. 59 Ibid 8.

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The duty to render assistance was consolidated in the 1914 solas Chapter v Article 37, which provides that ‘[e]very master of a ship, who receives a call for assistance from a vessel in distress is bound to proceed to the assistance of the persons in distress’.60 The Convention also details the right of a vessel in distress to seek assistance. This elaboration was fuelled by concerns surrounding the alleged failure of nearby ships to render assistance to the rms Titanic:61 Every master of a vessel in distress has the right to requisition from among the ships which answer his call for assistance the ship or ships which he considers best able to render him assistance, but he must exercise this right only after consultation, so far as may be possible, with the masters of those ships. Such ships are then bound to comply immediately with the requisition by proceeding with all speed to the assistance of the persons in distress. The masters of the ships which are required to render assistance are released from this obligation as soon as the master or masters requisitioned have made known that they will comply with the requisition, or as soon as the master of one of the ships which has reached the scene of the casualty has made known to them that their assistance is no longer necessary. If the master of a ship is unable, or considers it unreasonable or unnecessary, in the special circumstances of the case, to go to the assistance of the vessel in distress, he must immediately inform the master of the vessel in distress accordingly. Moreover he must enter in his log-book the reasons justifying his action. The above provisions do not prejudice the International Convention for the unification of certain rules with respect to Assistance and Salvage at Sea, signed at Brussels on the 23rd September, 1910, and, in particular,

60 1914 solas, ch v, art 37(1). 61 Eg shortly after the sinking of the rms Titanic, the UK held an inquiry into the actions of the ss Californian’s shipmaster over his purported failure to render assistance to the rms Titanic. He was allegedly in contact with the rms Titanic shortly before its sinking and the location of the ss Californian was not far from the site of distress. The crew on board the latter reportly claimed to have spotted several distress rockets; see Daniel Butler, ‘Unsinkable’: The Full Story of the rms Titanic (Frontline Books 2011) appx ii; Marine Accident Investigation Branch, ‘rms “Titanic”: Reappraisal of Evidence Relating to ss “Californian”’  accessed 22 January 2019.

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the obligation to render assistance laid down in Article 11 of that Convention.62 The 1914 solas formulated the duty to render assistance in light of growing technological and telecommunications developments. In fact, from a comparison of the obligations laid down in the 1910 Salvage Convention, the 1910 Collisions Convention, and the 1914 solas, it appears that the duty elaborated in Article 37 of the latter contains more operational detail and guidance to shipmasters. In accordance with the 1910 Salvage Convention Article 11, and the 1910 Collisions Convention Article 8, the shipmaster may be relieved of his obligation to provide assistance if this may cause serious damage to his vessel, passengers, or crew.63 However, the 1914 solas Chapter v Article 37 provides stricter rules regulating these circumstances. In such cases, the shipmaster must immediately inform the shipmaster of the vessel in distress, as this may allow the latter the opportunity to seek assistance from other vessels. Furthermore, in cases of failure to provide assistance, the shipmaster must enter into his logbook the reasons for doing so.64 The drafters may have included this additional requirement to ensure that shipmasters are held accountable for their actions and to avoid cases of failure to render assistance for frivolous reasons.65 Although the 1914 solas was prevented from coming into force, mainly due the outbreak of the First World War, its formulation of the shipmaster’s duty to render assistance was subsequently incorporated into the 1929 International Convention for the Safety of Life at Sea,66 and the revised versions were adopted in 194867 and 1960.68 Indeed, the 1914 solas formulation was also adopted in the 1974 solas which is currently in force,69 and it is examined in detail below.70

62 1914 solas, ch v, Arts 37(4)–(5). 63 Ibid para 4. 64 Ibid. 65 The shipmaster’s requirement to enter into his log-book the reasons justifying his failure to go to the assistance of a vessel in distress can be found in the formulation of the duty to render assistance in more recent versions of the solas Convention; see Ch 3, s 3.2.3.1.b. 66 (adopted 31 May 1929, entered into force 1933) ukts 43 (1932) (1929 solas), ch v, Art 45. 67 International Convention for the Safety of Life at Sea (adopted 10 June 1948, entered into force 19 November 1952) ukts 1 (1953), ch v, reg 10 (1948 solas). 68 International Convention for the Safety of Life at Sea (adopted 31 May 1960, entered into force 26 May 1965) ukts 60 (1965), ch v, reg 10 (1960 solas). 69 Ch 3, s 3.2.3.1.b. 70 Ibid.

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2.4 Conclusion This chapter traced the historical development of the duty to render assistance at sea. Early efforts to adopt treaty rules on the duty to render assistance commenced with the adoption of the 1910 Salvage Convention and 1910 Collisions Convention. Following their adoption, major maritime disasters, such as the sinking of the rms Titanic, and technological advances led to the further development of the duty as seen in the 1914 solas. Despite the latter’s failure to enter into force, its provisions on the duty to render assistance had an influential effect on subsequent versions of the convention. The 1910 Salvage and Collisions conventions, together with the 1914 solas, represent the first efforts to develop treaty rules on the duty to render assistance and to ensure that the rules consider three key factors: (i) the advent of new technological (especially telecommunications) advancements and their influence on this duty, (ii) the increase in maritime accidents, and (iii) the need for cooperation to render effective assistance. Their provisions provided the basis upon which the contemporary rules relating to the duty to render assistance were formulated, which is discussed in the following chapter.

Chapter 3

The Duty to Render Assistance at Sea under International Law 3.1 Introduction This chapter commences with an examination of the duty to render assistance at sea under treaty law, particularly the hsc, unclos, the 1974 solas, the 1979 sar, and the 1989 Salvage Convention. This is followed by an analysis of the duty to render assistance under customary international law. The chapter concludes by examining the relevance of soft law, particularly those which focus on the said duty in imros. 3.2

The Duty to Render Assistance at Sea under Treaty Law

3.2.1 The Duty to Render Assistance at Sea under the hsc 3.2.1.1 The hsc: Introduction In this section, this author analyses the work of the International Law Commission,1 the First United Nations Conference on the Law of the Sea,2 and the provisions of the hsc, as the unclos rules on the duty to render assistance are largely based on those found in the hsc. In fact, no comprehensive debate occurred at the Third United Nations Conference on the Law of the Sea3 on the duty to render assistance, as the conference relied on the hsc text.4 The hsc was one of the four5 conventions adopted at unclos i, which

1 2 3 4 5

Hereafter referred to as ilc. Hereafter referred to as unclos i. Hereafter referred to as unclos iii. Ch 3, s 3.2.2.2. These included also eg the Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10 September 1964) 516 unts 205; see Yoshifumi Tanaka, The International Law of the Sea (3rd edn, cup 2019) 28; David Attard and Patricia Mallia, ‘The High Seas’ in David Joseph Attard (ed), The imli Manual on International Maritime Law Volume i: The Law of the Sea (oup 2014) 239.

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c­ onvened in Geneva from 24 February to 27 April 1958.6 The provisions of the hsc were considered to be ‘generally declaratory of established principles of international law’7 and covered rules relating to the duty to render assistance on the high seas.8 The codification of these rules dates back to earlier work undertaken by the ilc on the high seas.9 The ilc appointed Mr. Jean Pierre Adrien François as the special rapporteur on the subject.10 He produced a number of reports on various issues pertaining to the high seas regime, which were discussed at several ilc sessions throughout the early 1950s.11 The following sections focus on the development of the duty to render assistance. 3.2.1.2

The Duty to Render Assistance at Sea under the ilc Provisional Articles on the High Seas The ilc favoured the inclusion of the duty to render assistance in the high seas rules.12 In this respect, the special rapporteur’s reports shed light on the process leading to the ilc’s drafting. Mr François examined existing international law regulating this duty.13 In his preliminary report on the high seas regime,14 he suggested drafting a rule, which that incorporated the principles, found in the 1910 Salvage Convention Articles 11 and 12.15 The ilc agreed with his findings, but was of the view that such rules should also be extended, to take into account the 1910 Collisions Convention Article 8.16 On the advice of the ilc, in his second report,17 Mr. François formulated the following rule:

6

Eighty-six States and several specialized agencies which enjoyed observer status attended the conference; see unclos i, Official Records, Volume ii, Final Act of the Conference, Doc. A/CONF.13/L.58, 146. 7 hsc, Preamble. 8 Ibid Art 12. 9 James Harrison, Making the Law of the Sea: A Study in the Development of International Law (cup 2011) 32; Donald R Rothwell and Tim Stephens, The International Law of the Sea (2nd edn, Hart 2016) 161; Robin R Churchill and Alan Vaughn Lowe, The Law of the Sea (3rd edn, mup 1999) 204. 10 Tanaka (n 5) 28. 11 Ibid. 12 ilc ‘Draft Articles on the Law of the Sea’, Commentary (1956) ii ybilc, 281. 13 These treaties are examined in Ch 2, ss 2.3.1–2.3.3. 14 ilc ‘Report of Special Rapporteur Mr J.P.A François’ (1950) Doc A/CN.4/17, ii ybilc, 40. 15 Ch 2, s 2.3.1. 16 ilc, ‘Report of the International Law Commission on the Work of 2nd Session’ (5 June–29 July 1950) UN Doc A/1316, 384. For a discussion on Art 8 of the 1910 Collisions Convention; see Ch 2, s 2.3.2. 17 ilc ‘Report of Special Rapporteur Mr J.P.A François’ (1950) Doc A/CN.4/17, ii ybilc, 81.

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The master of a vessel is bound, so far as he can do so without serious danger to his vessel, her crew and her passengers, to render assistance to any person found at sea in danger of being lost. After a collision, the master of each of the vessels in a collision is bound, so far as he can do so without serious danger to his vessels, her crew, and her passengers, to render assistance to the other vessel, her crew and her passengers.18 The wording of the above rule is almost identical19 to that found in the 1910 Salvage Convention Article 11(1) and the 1910 Collisions Convention Article 8(1).20 The François text was included in Article 11 of the ilc’s Provisional ­Articles on the High Seas Regime, adopted at its seventh session.21 These provisional articles were subsequently submitted to States for their comments.22 Norway generally agreed with the wording of Article 11, but considered it necessary to include an additional obligation on States, requiring them to enact legislation to enforce the duty to render assistance.23 Yugoslavia argued that the obligation in the draft Article 11 should be extended to cover ‘any other incident of navigation’ and not be restricted only to cases of collisions.24 It also proposed that a new paragraph be added to draft Article 11 to bring it in line with the 1910 Collisions Convention Article 8(2).25 It was argued that the inclusion of this obligation would be valuable for mariners, as the provision of such information would make it easier to enable other vessels to eventually pick up the passengers and crew of the damaged vessel at the most suitable place.26 18 19 20 21 22

23 24 25 26

Ibid. This is a translation of the original text of the provision in French. ilc ‘Report of Special Rapporteur Mr J.P.A François’ (1950) Doc A/CN.4/17, ii ybilc, 81. On this point, see also Daniel P O’Connell, The International Law of the Sea: Volume ii (Clarendon Press 1984) 814. See Ch 2, ss 2.3.1 and 2.3.2. ilc, ‘Report of the International Law Commission on the Work of its 7th Session’ (2 May– 8 July 1955) UN Doc A/2934, 24. ilc, ‘Comments by Governments on the Provisional Articles Concerning the Regime of the High Seas and the Draft Articles on the Regime of the Territorial Sea Adopted by the International Law Commission at its Seventh Session’ (1956) Doc A/CN.4.99 and Add 1–9, ii ybilc. Ibid 67. Ibid 97. Ch 3, s 2.3.2. ilc, ‘Comments by Governments on the Provisional Articles Concerning the Regime of the High Seas and the Draft Articles on the Regime of the Territorial Sea Adopted by the International Law Commission at its Seventh Session’ (1956) Doc A/CN.4.99 and Add 1–9, ii ybilc, 97. The proposal put forward by the Yugoslav government that the words ‘or any other incident of navigation’ be inserted after the word ‘collision’ was not incorporated into the revised Art 11, as the special rapporteur saw no need for this addition; see ilc,

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The Netherlands proposed the inclusion of an obligation similar to that found in the 1948 solas Chapter v Regulation 10, which imposes upon ships an obligation to proceed to a vessel in distress after receiving a distress message.27 The special rapporteur agreed with the Dutch amendment28 and proposed the following Draft Article 11: Every State shall require the master of a ship sailing under 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 speed to the rescue of persons in distress if informed of their need for assistance, in so far as such action may reasonably be expected of him; (c) After a collision, to render assistance to the other ship, her crew and her passengers and, where possible, to inform the other ship of the name of his own ship, her port of registry and the nearest port at which she will call.29 The above was included as Article 36 of ‘Articles concerning the Law of the Sea with commentaries’,30 adopted at the ilc’s eighth session in 1956.31 This text formed the basis for discussions that took place at unclos i.32

27

28 29 30 31 32

‘Summary of Replies from Governments and Conclusions of the Special Rapporteur’ (1956) Doc A/CN.4/97/Add 1–3, ii ybilc, 17. ilc, ‘Comments by Governments on the Provisional Articles Concerning the Regime of the High Seas and the Draft Articles on the Regime of the Territorial Sea adopted by the International Law Commission at its Seventh Session’ (1956) Doc A/CN.4.99 and Add 1–9, ii ybilc, 67. ilc, ‘Summary of Replies from Governments and Conclusions of the Special Rapporteur’ (1956) Doc A/CN.4/97/Add 1–3, ii ybilc, 18. ilc, ‘Report of the International Law Commission on the Work of its 8th Session’ (23 April–4 July 1956) UN Doc A/3159, 260. Hereafter referred to as Articles on the los. ilc, ‘Report of the International Law Commission on the Work of its 8th Session’ (23 April–4 July 1956) UN Doc A/3159, 260. The Articles on the los were subject to renegotiation during the conference to achieve broader support among participating States; see Harrison (n 9) 34.

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3.2.1.3

The Duty to Render Assistance at Sea: unclos i Deliberations and the hsc Considering the magnitude of the task before unclos i, the conference established five main committees to discuss the Articles on the los.33 The articles pertaining to the high seas regime were discussed at the conference’s Second Committee.34 The Official Records of the Committee reveal considerable debate amongst States on the inclusion of a duty to render assistance in a new convention, and also more specifically as to the wording of the proposed ­Article 36. Some States expressed the concern that the rule was already covered by existing international treaties.35 The UK argued that: [t]here would be a danger of conflict where the old and new instruments differed, as well as difficulties in subsequently developing and amending on parallel lines two sets of instruments on the same subject…36 This concern was also shared by Liberia,37 Greece,38 and Italy.39 The UK and Ireland suggested that it would be beneficial if the Second Committee advised States to adopt already existing instruments regulating the duty, but not to proceed with the adoption of the proposed Article 36 in a new instrument governing the high seas regime.40 Nevertheless, Ireland expressed the view that unless a general rule regulating the duty to assist was inserted in the new Convention, non-State parties to the relevant existing international instruments would not be obliged to render assistance.41 33 Ibid. 34 unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/40. 35 Ibid 11, paras 19 and 14(2). 36 Ibid 3, para 24. 37 Ibid, para 22. Liberia argued that ‘…[i]t might even involve a country in adherence to a convention to which it did not subscribe’. 38 Greece favoured the deletion of Article 36 for the same reasons put forward by the UK; see unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/40, 51, para 12. 39 Italy warned that care should be taken to avoid overlapping with the provisions regulating the duty to render assistance at sea found in general maritime conventions. It suggested that, ‘…[t]he Conference should confine itself to a reference to those provisions. Otherwise, states might find themselves in a quandary with regard to the interpretation of varying provisions on the same subjects.’; see unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/40, 11, para 19. 40 Ibid 3, para 24. 41 Ibid.

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Most States argued that the duty to render assistance was essential to the protection of life, which thus warranted its inclusion in the new convention. China, for example, stated: The fact that some of the rights and duties involved were already embodied in the various instruments should facilitate, rather than hinder, their acceptance in a comprehensive convention which could moreover, help to secure uniformity of standards by eliminating discrepancies.42 Yugoslavia made an interesting proposal to amend the wording of Article 36(b).43 It disagreed with the ilc’s use of the phrase ‘with all speed’,44 which it asserted could be interpreted to mean that vessels are bound, under all conditions, to sail at full speed to render assistance to other vessels. The current wording was viewed as being too absolute, a position that was also shared by the French delegate, Mr Gidel, who argued that the matter should be left to the shipmaster’s discretion.45 It was argued that there may be circumstances such as bad weather or performance of the ship that may prevent it from always reaching its maximum speed.46 The Yugoslav delegation suggested replacing the wording with the expression ‘with all possible speed’,47 and this amendment was adopted by the conference.48 Other States put forward possible amendments to Article 36. The Netherlands argued that the wording only contemplated legislative measures of a general nature, whereas States should not be expected to assume absolute liability or provide every incidental detail.49 To address this issue, the Netherlands suggested incorporating the phrase ‘take necessary legislative measures’.50 This proposal was rejected by the conference.51 42

unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/40, 25, para 20; and 22. Similarly, Australia agreed with obligations laid down in Art 36, as it already had in place national legislation regulating the duty to render assistance; see further unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/40, 13, para 25. 43 unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/C.2/L.18, 120. 44 Ibid Doc.A/Conf.13/40, 50, para 11. 45 Ibid 59, para 58. This matter is discussed in greater detail in Ch 3, s 3.2.2.3. 46 Ibid. 47 unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/C.2/L.18, 120. 48 Ibid Doc.A/Conf.13/40, 77, para 29. The amendment was adopted by 39 to 3 votes, with 12 abstentions. 49 unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/4059, para 59. 50 Ibid Volume iv, Second Committee, Doc.A/Conf.13/C.2/L.25. 51 The amendment was rejected by 22 votes to 7, with 25 abstentions; see unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/C.2/SR/26–30, 77, para 29. Later

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Similarly, Denmark presented an interesting proposal regarding Article 36.52 It argued that the experiences of the First World War revealed a dire need for coordination of sar activities both nationally and internationally.53 The Danish proposal focused on the necessity of implementing efficient sar activities among coastal States which would in turn facilitate the rendering of assistance at sea. In this respect, Denmark made specific reference to the recommendations laid down in the 1948 solas, which provided that State parties are required to make arrangements for the rescue of persons in distress at sea and around their coasts, and for the establishment, operation, and maintenance of maritime safety facilities which consider the density of seagoing traffic and navigational dangers and should, so far as possible, afford adequate means of locating and rescuing such persons.54 In light of the above provision, Denmark suggested the addition of the following paragraph to Article 36: Every coastal State shall promote the establishment 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.55 The Danish proposal was significant in that it suggested a treaty obligation which would require coastal States to provide and maintain sar and not rely only on the shipmaster. This proposal gained the support of other States; for example, the Union of Soviet Socialist Republics56 agreed and referred to its cooperation with several States, mainly Scandinavian, for the purpose coordinating sar activities.57 The UK and Poland also supported the Danish proposal,58

treaties such as the unclos, 1974 solas, and 1979 sar, discussed in Ch 3, ss 3.2.2.3.a, 3.2.3.1.b, and 3.2.3.2.b respectively, do not require State parties to adopt any specific measures to enforce the duty to render assistance. However, the 1989 Salvage Convention, discussed in Ch 3, s 3.2.3.4.a, does require State parties to adopt measures to enforce the duty, but it does not specifically require these measures to be legislative in nature. 52 unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/C.2/L.36. 53 Ibid Doc.A/Conf.13/40, 51, para 14. 54 1948 solas, ch v, reg 15(a). 55 unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/C.2/L.36. 56 Hereafter referred to as the ussr. 57 unclos i, Official Records, Volume iv, Second Committee, Doc.A/Conf.13/C.2/L.36, 57, para 37. 58 Ibid Doc A/Conf.13/40, 77, para 29.

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which was adopted by the conference with 33 votes to none against, with 20 abstentions.59 Article 36 was then transposed as Article 12 of the hsc: 1.

2.

Every State shall require the master of a ship sailing under its flag, insofar 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, insofar as such action may reasonably be expected of him; (c) After a collision, to render assistance to the other ship, her crew and her passengers and, where possible, to inform the other ship of the name of his own ship, her port of registry and the nearest port at which she will call. Every coastal State shall promote the establishment 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.60

The provisions of the hsc Article 12 reflect many of the principles in the 1910 Salvage and Collisions Conventions.61 However, it extended said duty, as it was not only attributed to the shipmaster but also to coastal States. The importance of the participation of coastal States in promoting, establishing and maintaining sar services remained a significant feature of later treaties dealing with the safety of life at sea.62 3.2.2 The Duty to Render Assistance at Sea under unclos 3.2.2.1 The Development of unclos A number of important developments that occurred throughout the 1960s63 led to a reassessment of the existing legal framework governing the law of the 59 60 61 62 63

Ibid 28, paras 44 and 60(9). hsc, Art 12. Ch 2, ss 2.3.1 and 2.3.2. Ch 3, ss 3.2.2.3.b, 3.2.3.1.c, and 3.2.3.2.d. United Nations General Assembly (unga) Res 1307 (xiii) (10 December 1958); Harrison (n 9) 37; Norman A Martínez Gutiérrez, ‘Introduction’ in David Joseph Attard (ed), The imli Manual on International Maritime Law Volume i: The Law of the Sea (oup 2014) ixvii; Rothwell and Stephens (n 9) 9–10; Churchill and Lowe (n 9) 15.

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sea.64 In 1970, the unga convened unclos iii, originally aimed to establish ‘… an equitable international regime’65 for resources of the seabed and subsoil beyond the limits of national jurisdiction.66 However, by 1973, the mandate of the conference shifted to the adoption of a comprehensive global convention dealing with various matters of the law of the sea.67 The Conference held 11 sessions between 1973 and 1982.68 The subject matter of unclos iii was divided among 3 main committees.69 Unlike, unclos i, this conference did not work upon a set of draft articles prepared by the ilc.70 Instead, it addressed numerous proposals put forward by individual States or groups of States, which were generally aimed at promoting their common interests.71 These proposals were then incorporated into a series of negotiating texts, discussed below, to be adopted by participating States. In 1982, unclos iii adopted a convention governing the law of the sea which provides a comprehensive legal framework to regulate all ocean space, its users, and resources.72 3.2.2.2 The Duty to Render Assistance at Sea: unclos iii Deliberations The duty to render assistance was mainly discussed at unclos iii within the context of the high seas regime. Nevertheless, it was also considered, albeit to a lesser extent, in relation to the meaning of innocent passage in the territorial

64

In particular the emergence of a variety of new coastal State claims to extend their national jurisdiction towards high seas areas to access offshore natural resources, develop seabed mining technology, and promote the protection of the marine environment, as well as the emergence of newly independent States seeking a more active role in the development of the law of the sea; see further Rothwell and Stephens (n 9) 10–14; Martínez Gutiérrez (n 63) ixvii-ix; Tanaka (n 5) 31–32. 65 unga Res 2570C (xxv) (17 December 1970). 66 Ibid. 67 Robin R Churchill, ‘The 1982 United Nations Convention on the Law of the Sea’ in Donald R Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (oup 2015) 25. 68 See UN Codification Division Publications, Diplomatic Conferences ‘Third United Nations Conference on the Law of the Sea’ accessed 9 June 2017. 69 Tanaka (n 5) 32–33; UN Codification Division Publications, Diplomatic Conferences ‘Third United Nations Conference on the Law of the Sea’ accessed 9 June 2017. 70 Churchill (n 67) 25. 71 Ibid. 72 Helmut Turk, Reflections on the Contemporary Law of the Sea (Martinus Nijhoff Publishers 2012) 2; Tanaka (n 5) 37–39; Rothwell and Stephens (n 9) 14–20; Harrison (n 9) 48–58.

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sea.73 The Second Committee of unclos iii was tasked with studying issues relating to the high seas and territorial sea regimes.74 The high seas regime did not dominate discussions at unclos iii, considering the widespread support for the hsc.75 The conference focused on incorporating the hsc provisions into a more general treaty, considering the interaction between the high seas and other maritime zones.76 In fact, the hsc provisions on the duty to render assistance were accepted with slight modifications.77 By the conference’s second session in 1974, no proposals appeared to have been put forward by States concerning the duty to render assistance.78 During the same session, members of the Second Committee prepared a series of informal working papers reflecting trends that had emerged in relation to items allocated to the committee.79 Informal Working Paper No 780 and its revisions covered issues relating to the high seas regime. Provision 148 of this paper, ‘Assistance to persons in danger’, repeated the text Article 12 of the hsc without any modifications.81 During this session, a working paper on the territorial sea was also submitted.82 The meaning of innocent passage was discussed in provisions 25, 26, and 2883 of the Working Paper on the Territorial Sea, which were largely reflected in tsczc Articles 14(2) and 3. Yet a rule requiring the rendering of assistance in the territorial sea was not included. During its third session in 1975, the Second Committee established a number of informal consultative groups in which all members of the committee could participate.84 The informal consultative group on the high seas discussed a number of provisions of the working paper 73 74 75 76 77 78

See further Ch 4, s 4.2.2.2. See accessed 10 June 2017. Rothwell and Stephens (n 9) 162. Particularly the exclusive economic zone (eez). Rothwell and Stephens (n 9) 163. Myron H Nordquist and others (eds), The United Nations Convention on the Law of the Sea 1982, Volume iii: A Commentary (Martinus Nijhoff Publishers 1995) (Virginia Commentary iii) 173. 79 Office for Ocean Affairs and the Law of the Sea, The Law of the Sea – Navigation on the High Seas, Legislative History of Part vii, Section i (Articles 87,89,90–94,96–98) of the United Nations Convention on the Law of the Sea, Volume 18, Issue 2 (United Nations 1989) (Part vii Legislative History) 53. 80 unclos iii, Official Records, Volume iii, First and Second Sessions, Doc.A/CONF.62/L.8 Rev 1, 107–142. 81 Ibid 131. 82 Ibid 109–115. 83 Ibid 112. 84 Part vii Legislative History (n 79) 59.

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on the main trends.85 Based on these discussions, the bureau of the Second Committee put together a consolidated text on the high seas,86 and later a revision of this text.87 The first draft of the text repeated provision 148 relating to the duty to render assistance at sea without any amendments. However, in the second draft of the text, provision 148 of the revised text repeated Article 12 of the hsc with minor changes. Apart from slight stylistic amendments to the text of Article 12(2), the provision contained an addition requiring coastal States to promote ‘the establishment, operation and maintenance’ of sar activities.88 The reason for the inclusion of the word ‘operation’ was to harmonise the text with the 1974 solas provisions.89 The latter requires States to make the necessary arrangements for the rescue of persons, which should include the ‘establishment, operation and maintenance of such maritime safety facilities’.90 The draft article as amended was included as Article 84 in Part ii of the 1975 Informal Single Negotiating Text.91 The conference’s informal consultative group on innocent passage prepared a set of draft articles, which also incorporated most of the provisions of the main trends found in the Working Paper on the Territorial Sea.92 The text, which was also subsequently included in Part ii of the isnt, contained one important addition to the meaning of innocent passage to the effect that passage for ‘rendering assistance to persons, ships or aircraft in danger’ would include stopping and anchoring of a vessel in a foreign territorial sea.93 This inclusion was significant, as it evidenced the growing importance of humanitarian considerations in the law of the sea. These were considered important 85

In particular provisions 139 and 164–177 of the main trends; see Part vii Legislative History (n 79) 59–60. 86 C 2/Blue Paper No 9 (16 April 1975) reproduced in Renate Platzöder, UN Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, The Law of the Sea: Documents: 1983–1989, Volume v (Oceana Publications 1989) 59 (V Platzöder). 87 C 2/Blue Paper No 9/Rev 1 (5 May 1975) reproduced in V Platzöder. 88 Virginia Commentary iii (n 78) 173; see also Douglas Guilfoyle, ‘Part vii High Seas’ in Alexander Prölss (ed), The United Nations Convention on the Law of the Sea: A Commentary (CH Beck, Hart, Nomos 2017) 727. 89 Ch 3, s 3.2.3.1.b. 90 1974 solas, anx ch v, reg 15(a); see also Virginia Commentary iii (n 78) 173. 91 Hereafter referred to as the isnt. See unclos iii, ‘Summary Records, Plenary, General Committee, First, Second and Third, Committees, and Documents of the Conference, Third Session’ iv or Doc.A/CONF.62/WP.8/Part ii, 165. 92 C 2/Blue Paper No 14 (April 1975) reproduced in V Platzöder. 93 Myron H Nordquist and others (eds), The United Nations Convention on the Law of the Sea 1982, Volume ii: A Commentary (Martinus Nijhoff Publishers 1993) (Virginia Commentary ii) 162.

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enough to impose a temporary suspension of expeditious passage through the territorial sea. At the fourth session of the conference, the Second Committee studied in detail articles of the isnt.94 Following results of its study, the Second Committee produced the 1976 Revised Single Negotiating Text,95 in which the provisions found in Article 84 of the isnt dealing with the duty to render assistance were repeated as Article 86 without amendments to the substance of the article.96 In the case of Article 15, on the meaning of passage, this was included in the rsnt as Article 17. Significant was the inclusion of para 2, which provides that …[p]assage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.97 It was decided at the sixth session in 1977 that the president of the conference should, together with the chairmen of the three committees, prepare an informal composite negotiating text,98 which aimed to combine the draft articles of the rsnt covering various subjects into one document.99 Article 86 on the duty to render assistance in rsnt was repeated as Article 98 in the icnt.100 Article 17 on the meaning of passage was renumbered as Article 18, but otherwise remained unchanged in the icnt. At the tenth session, the Second Committee reviewed the draft convention on the law of the sea,101 which was prepared by unclos iii’s Collegium.102 ­According to the Virginia Commentary on UNCLOS, upon recommendations 94 Part vii Legislative History (n 79) 69. 95 Hereafter referred to as rsnt. 96 unclos iii, ‘Summary Records, Plenary, General Committee, First, Second and Third Committees, and Documents of the Conference, Fourth Session’, Doc.A/CONF.62/WP.8/ Rev 1/Part ii, 167. 97 Virginia Commentary ii (n 93) 161. 98 unclos iii, Official Records, Volume vii, Informal Composite Negotiating Text, Sixth Session, Doc.A/CONF.62/WP.10. 99 Part vii Legislative History (n 79) 75. 100 unclos iii, Official Records, Volume vii, Informal Composite Negotiating Text, Sixth Session, Doc.A/CONF.62/WP.10, 29. 101 unclos iii, Official Records, Volume xv, Summary Records, Plenary, General Committee and First Committee, as well as Documents of the Conference, Tenth and Resumed Tenth Sessions, Doc.A/CONF.62/L.78. 102 Myron H Nordquist and John Norton Moore, Entry into Force of the Law of the Sea Convention (Martinus Nijhoff Publishers 1995) 22.

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made by the Drafting Committee,103 Article 98(1) of the Draft Convention was amended; ‘flying its flag’ was replaced with ‘sailing under the flag’.104 This brought Article 98 in line with the wording of other Articles in the text.105 Article 18 on the meaning of passage remained unchanged in the Draft Convention on the Law of the Sea.106 The latter was adopted by unclos iii at its eleventh session and opened for signature at Montego Bay on 10 December 1982.107 unclos entered into force on 16 November 1994 and currently has 168 State parties.108 3.2.2.3

The Duty to Render Assistance at Sea under unclos Articles 18(2) and 98 unclos Articles 18(2) and 98 represent complementary provisions addressing the duty to render assistance. In relation to the meaning of passage of a foreign ship through the territorial sea of another State, Article 18(2) provides as follows: Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. The above provision recognises an exceptional right of foreign ships to temporarily stop or anchor in another State’s territorial sea for humanitarian purposes. However, this right does not generally allow the shipmaster providing assistance to disembark rescuees in the coastal State.109 Furthermore, unclos Article 18(2) reflects the general obligation to render assistance found in ­Article 98.110 This author suggests that Article 18(2) be interpreted in a manner 103 unclos iii, Official Records, Volume xv, Summary Records, Plenary, General Committee and First Committee, as well as Documents of the Conference, Tenth and Resumed Tenth Sessions, Doc.A/CONF.62/L.67/Rev 1 and Doc.A/CONF.62/L.72. 104 Virginia Commentary iii (n 78) 174. 105 Eg, unclos Art 94 enlists the duties of a State concerning ‘ships flying its flag’. For a discussion of this article in relation to the shipmaster’s duty to render assistance; see Ch 4, s 4.2.1. 106 Virginia Commentary iii (n 78) 174. 107 Part vii Legislative History (n 79) 87. 108 As of December 2019; see Division for Ocean Affairs and the Law of the Sea accessed 1 December 2019. 109 For a detailed discussion on disembarkation, see further Ch 3, s 3.2.3.3.c. 110 See Ch 4, s 4.2.2.2.a.

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consistent with Article 98, and therefore besides stopping and anchoring, it should also allow the shipmaster to divert course to provide assistance, even though in a foreign territorial sea.111 Article 98 is the main unclos provision regulating the duty to render assistance: Duty to render assistance 1.

2.

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. 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.

It is submitted that while said duty is found in Part vii, which deals with the high seas, this should not be construed to mean that the duty be carried out exclusively in this area. The general wording of the phrase ‘at sea’ in unclos Article 98 implies that the duty should extend to all areas of the sea.112 Furthermore, Article 98 should be read in conjunction with other relevant unclos articles, in particular, Article 18(2) on innocent passage referred to above, as well as Article 52 on right of innocent passage in archipelagic waters and 111 Ibid. 112 Bernard H Oxman, ‘Human Rights and the United Nations Convention on the Law of the Sea’ (1997) 36 ColumJTransnatlL 399, 414–415; Virginia Commentary iii (n 78) 176; Alexander Proelss, ‘Rescue at Sea Revisited: What Obligations Exist Towards Refugees?’ (2008) simply 1.

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­ rticle 39(1)(c) on the duties of ships in transit passage.113 Regarding the apA plicability of the duty to render assistance in the eez, reference should be made to Article 86(1), which excludes the eez regime from the high seas. However, unclos Article 58(2) applies Article 98 and other pertinent rules of international law to the eez, as far as they are not incompatible with Part v of the convention.114 3.2.2.3.a The Shipmaster’s Duty to Render Assistance at Sea under unclos Article 98(1) As explained above,115 the formulation of the shipmaster’s duty to render assistance under unclos Article 98(1) is largely based on Article 12(1) of the hsc,116 which in turn was inspired by earlier treaties such as the 1910 Salvage Convention.117 During the deliberations at unclos i,118 delegates were seeking to regulate the more typical shipwreck scenarios, in which seafarers lost at sea could be provided assistance by another vessel or, if rescued, could immediately be repatriated to their home State at the next port of call.119 As argued above,120 shipmasters now face more complex distress situations, particularly those which necessitate imros. This situation is further complicated because the shipmaster has to consider the human rights and refugee rights of rescuees, who may include legitimate asylum seekers.121 Consequently, although the text of unclos Article 98(1) provides a general basis for the execution of the duty to render assistance, it is inadequate to deal with irregular migration by sea, particularly large-scale movements.122 Indeed, this has led to the development of complementary rules adopted under the auspices of the imo.123

113 Virginia Commentary iii (n 78) 176–177. 114 Ibid; see further Ch 4, s 4.2.2.3. 115 Ch 3, s 3.2.1.3. 116 Ibid. 117 Ch 2, s 2.3.1. 118 Ch 3, s 3.2.1.3. 119 Patricia Mallia, Migrant Smuggling by Sea: Combating a Current Threat to Maritime Security Through the Creation of a Cooperative Framework (Martinus Nijhoff Publishers 2010) 135; Richard Barnes, ‘The International Law of the Sea and Migration Control’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff Publishers 2010) 135. 120 Ch 1, ss 1.2–1.5. 121 Ibid s 1.4.3; see further Ch 5, s 5.3. 122 Ch 1, ss 1.2–1.5. 123 Ch 3, s 3.2.3.

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Further examination of the topic requires an analysis of the shipmaster’s obligations imposed under Article 98(1). Every flag State is required to ensure that their shipmasters ‘…render assistance to any person found at sea in danger of being lost’ under Article 98(1)(a). This flag State duty can be described as an obligation of conduct,124 and it is generally executed through national legislation such as imposing criminal sanctions against the shipmaster in cases of failure to provide assistance.125 Although the language of Article 98(1)(a) offers guidance to the State and the shipmaster, it may not always be adequate. It fails, for example, to specify what kind of an act constitutes the rendering of assistance.126 Can it include anything from the provision of navigational aids, supplies, medicines, or fuel to the migrant vessel to escorting the migrant vessel for a part of its journey?127 On the other hand, it may be argued that the language was intentionally left in general terms, as it allows the shipmaster broader discretion, which enables him to take the most appropriate action according to the circumstances of each case.128 Yet the flexibility of the 124 O’Brien observes that the duty to render assistance under unclos Article 98(1) ‘…rests not on the individual mariner, rather it requires the flag State of that mariner to ensure that an adequate transpositional law is enacted which imposes this obligation on the master of the ship; it is not a self-executing norm.’; see Killian O’Brien, ‘Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem’ (2010) 3 GoJIL 715, 721; see also Erik Røsæg, ‘Refugees as Rescuees – the Tampa Problem’ (2002) 295 simply 43, 50. For an examination of obligations of conduct, attribution, and State responsibility, see Ch 6, s 6.3.3.1. 125 O’Brien (n 124) 721; Anne T Gallagher and Fiona David, The International Law of Migrant Smuggling (cup 2014) 450. For a review of national laws enforcing the duty to render assistance; see Ch 3, s 3.3.2. 126 Gallagher and David (n 125) 449; see also Daniel Ghezelbash and others, ‘Securitization of Search and Rescue at Sea: The Response to Board Migration in the Mediterranean and Offshore Australia’ (2018) 67 iclq 315, 320. 127 Kurt Sansone and Christian Peregin, ‘No Evidence of Other Migrants on Board – afm’ The Times of Malta (Valletta, 23 August 2009); imo msc, ‘Outcome of Informal Meeting on “Safety Measures and Procedures for the Treatment of Persons Rescued at Sea”’ msc 76/22/11 (27 September 2002) (msc 76/22/11), para 5.2, which provides that ‘assistance could vary from repairing an engine or refuelling a craft, giving medical assistance or to actually retrieving persons from the perils of [the] sea’. 128 Kenney and Tasikas argue that the ‘…calculated ambiguity of the phrase, ‘render assistance’, allows the master of the vessel to consider the circumstances of each distress case and take the most prudent and practical action to relieve the distress of those in peril’; see Frederick J Kenney Jr and Vasilios Tasikas, ‘The Tampa Incident: imo Responses and Perspectives on the Treatment of Persons Rescued at Sea’ (2003) 12 Pacific Rim L&P J 144, 151–152; Gallagher and David (n 125) 449. See also msc 76/22/11, para 5.2, which provides that: ‘the meaning of assistance could be subject to the size, equipment and capability of the rescuing ship, the potential dangers to its crew and passengers and what is actually required’.

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f­ ormulation should not restrict the duty of the shipmaster. It may, in fact, impose said duty, even though the circumstances envisaged in Article 98(1)(b), discussed below, are absent. Furthermore, the shipmaster’s duty to render assistance under Article 98(1) (a) is qualified in so far as ‘he can do so without serious danger to the ship, the crew or the passengers’. The Convention does not, however, provide a measure for determining the seriousness of the danger to his vessel, crew, or passengers.129 The matter seems to be left wholly to the judgment of the shipmaster.130 One may question whether the shipmaster should be given such wide discretion when assessing whether the danger is sufficient to release him from his duty.131 This view is supported by Guilfoyle: [i]t is difficult to establish that a master has breached a duty – outside cases where a rescue could clearly be effected without any dangers to the rescuing vessel – given that a master’s first obligation is to the safety of his or her ship, crew and passengers.132 Conversely, it may be argued that such discretion is justified given that the shipmaster that has ultimate responsibility for the safety of his vessel, crew, and passengers and is usually best placed to consider various factors such as the capabilities of his vessel and the number of people who require assistance.133 This author agrees with the latter view, considering the importance of ensuring safety onboard. Moreover, this level of discretion is certainly useful, if not even more necessary, when considering assistance in complex imros. Although the title of unclos Article 98 reads ‘Duty to render assistance’, Article 98(1)(b) also imposes on the shipmaster a duty to rescue persons in distress. This implies that whilst there is a general duty to render assistance in cases where people at sea are in danger of being lost, the duty in Article 98(1) (b) is more specific, for it requires the shipmaster ‘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’. Similarly, the interpretation of this provision may lead to problems, in particular, disagreement over the extent of the obligation to proceed with all possible 129 This is provided for under the 1979 sar; see Ch 3, s 3.2.3.2.c. 130 In this respect, the Virginia Commentary iii (n 78) 175 clarifies that ‘the master’s first obligation is for the safety of his ship, its crew and passengers – the threat of danger to any or all of them would leave the obligation to the discretion of the master’. 131 Guilfoyle, ‘Part vii High Seas’ (n 88) 727. 132 Ibid 729. 133 Gallagher and David (n 125) 449–450.

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speed134 to the rescue of persons and over what constitutes distress.135 For example, if en route a shipmaster discovers a small vessel carrying a large number of migrants, should that automatically equate to a vessel in distress?136 The obligation under unclos Article 98(1)(b) imposing the duty to rescue is qualified by the following: (i) persons must be in distress; (ii) the shipmaster must be informed of their need of assistance; (iii) the action does not cause serious danger to the ship, the crew, or the passengers; and (iv) the action must be carried out in so far as it can reasonably be expected of him. imros are rarely straightforward and generally involve perilous action. Consequently, in practice, it may not always be possible for the shipmaster to easily make a satisfactory assessment regarding a vessel in distress. Thus, the obligations under Article 98(1)(b) must be interpreted in light of the circumstances of each case.137 One may have to consider different factors, such as the type and size of the vessel and the number of people in distress.138 For example, the shipmaster’s duty to rescue hundreds of migrants in distress may put his vessel in danger if it is a small fishing boat, but not necessarily if it is a large bulk carrier. Therefore, the shipmaster will have to address, often in a short time, the circumstances giving predominance to the safety of life at sea and, ultimately, as set out below, much will depend on the application of due diligence by the shipmaster in evaluating the action required by law.139 It may be possible for the shipmaster to decide, after being informed of the need of assistance by persons in distress, that if he can remedy the cause of distress, the obligation would no longer remain. For example, if migrants have asked for assistance because a person on board their vessel requires medical assistance, it could be argued that by uplifting this individual, the shipmaster is relieved of his duty to rescue. On the other hand, it may be held that the shipmaster is duty bound to assess the seaworthiness of their vessel and may decide that embarkation of all migrants is necessary. Problematic, in such cases, is the frequent resistance to being ‘rescued’, particularly if the problem has 134 On this point, see the discussion of delegates at unclos i referred to in Ch 3, s 3.2.1.3. 135 The definition of the term in this context has been provided for under the 1979 sar, but there remains debate amongst States as to the interpretation of the meaning of distress; see Ch 3, s 3.2.3.2.c. 136 This author argues that this assessment is most likely to be made by the shipmaster in light of the resources available to him and after considering the seaworthiness of the migrant vessel and/or the condition of the individuals on board; see further Virginia Commentary iii (n 78) 175. 137 Virginia Commentary iii (n 78) 175; Guilfoyle, ‘Part vii High Seas’ (n 88) 727. 138 Kenney and Tasikas (n 128) 151. 139 Ch 6, s 6.3.3.

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been alleviated and migrants wish to proceed to their destination.140 The matter may be further complicated if the migrant vessel, as is often the case, is stateless. If a migrant vessel is registered, the shipmaster may seek the cooperation of the flag State, if the vessel is stateless, the shipmaster has a greater burden. He could consult the coastal or sar State, but ultimately the shipmaster would have to exercise his judgment. Another scenario wherein the shipmaster is required to render assistance is envisaged under unclos Article 98(1)(c). Collisions between commercial ships and migrant vessels are a worrying possibility.141 This is particularly true considering the lack of proper navigational equipment, lights, engines, or steerers aboard migrant vessels. Furthermore, there is often no skilled navigator amongst the migrants,142 and these individuals often cross busy navigational routes such as those found in the Mediterranean, Southeast Asia, and the English Channel.143 Following a collision, unclos Article 98(1)(c) requires the shipmaster 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. This provision follows unclos Article 98(1)(a), which requires rendering assistance. Hence, the duty under Article 98(1)(c) is also subject to the qualification that the shipmaster must ensure that such assistance must not cause serious danger to the ship, crew, and passengers. Additionally, the shipmaster is required 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. This reflects the obligation provided for in unclos Article 94(7) concerning cooperation between the flag State and the other State in an inquiry into a marine casualty or incident of navigation.144 However, this requirement may not always apply to migrant vessels, which are generally stateless. Moreover, given that most vessels involved in irregular migration are vulnerable, a collision with a larger vessel is likely to trigger the obligation to rescue under unclos Article 98(1)(b). An important issue unclos Article 98(1) does not directly address relates to the question of whether rescue includes disembarkation – let alone which 140 141 142 143 144

See the cs Caprice case discussed in Ch 1, s 1.4. See the King Jacob case discussed in Ch 1, s 1.3. See Ch 1, s 1.3. Ibid s 1.4. Virginia Commentary iii (n 93) 175.

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State is obliged to relieve the shipmaster and accept the disembarkation of rescuees.145 As seen above,146 it has been argued that the duty to render assistance may not always include embarkation and disembarkation. Nevertheless, this author argues that under Article 98(1)(b) of the convention the duty to rescue implies also a duty to disembark, although the convention does not elaborate on this corollary duty.147 In fact, it was only fairly recently, following the events of the 2001 mv Tampa incident,148 that States began to focus thoroughly on issues concerning the disembarkation of rescuees, particularly when numbers are great.149 Even though unclos Article 98(1)(b) does not specifically refer to the duty to disembark, one may argue in light of the Preamble to unclos, which affirms that ‘…matters not regulated by this Convention continue to be governed by the rules and principles of general international law’, it is possible to interpret Article 98(1)(b) to include the disembarkation rules found in imo treaty law discussed below.150 unclos Article 98(1) is silent on what is expected of the shipmaster in cases where he cannot render assistance. For example, if his vessel cannot take a large number of migrants on board, would the duties under Article 98(1) of the convention, for example, absorb other ships in the area to provide assistance? In this author’s view, given that the general obligation to rescue applies to all shipmasters, in such cases it would be reasonable to expect that other shipmasters would be obliged to assist. Furthermore, as demonstrated by the cs Caprice incident,151 there may be cases where the duty to render assistance cannot be effected because the migrants themselves refuse aid. It is unclear under the convention whether in such cases the duty would end, or if it is necessary that the rescue ship remains in the vicinity of that vessel in distress and only assist if requested. It would appear that the shipmaster may not be bound 145 Ch 3, s 3.2.3.3.c. 146 See pages 45–46. 147 Miltner considers reasons for the absence of an explicit reference to disembarkation in the unclos provisions regulating the duty to rescue: ‘[b]efore the rescue duty was codified in the various instruments … the rescue duty involved a routine and established practice of disembarking rescuees at the next port of call. Crucially, when the rescue duty was later codified into various international treaties, reference to an explicit disembarkation duty was entirely overlooked; no such corresponding duty was codified into any rescue instrument.’; see Barbara Miltner, ‘Irregular Maritime Migration: Refugee Protection Issues in Rescue and Interception’ (2006) 30 FordhamIntlLJ 75, 88–90; see also Mallia, Migrant Smuggling (n 119) 97. 148 Ch 1, s 1.2. 149 Ch 3, s 3.2.3.3.c. 150 Ibid s 3.2.3. 151 Ch 1, s 1.4.

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to render assistance if the rescuees refuse, particularly if they do it in a manner that would endanger the shipmaster’s or crew’s lives. Yet it is possible that in certain cases the shipmaster must use his discretion to determine whether the rescuees are in danger, as they may not be fully aware of the circumstances in which they find themselves. The shipmaster may be informed of impending bad weather which would threaten the safety of their vessel. It is also open to debate whether in such cases it would be acceptable for the shipmaster and his crew to exercise a reasonable and necessary level of force to protect life at sea. In these circumstances, where every other effort has proven to be unsuccessful, a reasonable amount of force by the shipmaster or crew may be justifiable. This may be acceptable, particularly if the danger is imminent or where amongst rescued migrants there are vulnerable persons such as minors and pregnant women. The inadequacies of unclos Article 98(1), particularly in the case of imros, may be explained by the fact that said provisions are based on formulations that date back to the 1910 Salvage Convention and the 1910 Collisions Convention. In fact, the formulations have essentially remained substantially unchanged, and they were adopted by the ilc when formulating the Articles on the los, which later were adopted and incorporated in the hsc. unclos Article 98(1) is similar to Article 12 of the hsc. Consequently, the formulation of this rule was essentially designed to deal with seafarers at risk at sea. The drafters did not have imros in mind. In fact, by the time said convention was adopted in 1982, the Indochinese crisis referred to above152 had been settled and migration by sea did not appear to be a major international problem. Hence, the shipmaster’s obligations to render assistance found in unclos Article 98(1) must be regulated by other instruments, particularly those adopted by imo, which are examined in the following sections. 3.2.2.3.b Coastal State Rescue at Sea Obligations under unclos Article 98(2) unclos Article 98(2) supplements the shipmaster’s obligation to render assistance under Article 98(1) by requiring coastal States to promote sar services to render the duty more effective. As has been succinctly observed by BlancoBazan, ‘no master can properly perform assistance to persons in distress, unless he/she is supported by a robust sar system under the responsibility of coastal States’.153 As discussed below, unclos Article 98(2) builds upon ­similar 152 Ibid. 153 Agustín Blanco-Bazan, ‘The imo: Working within the unclos Framework and Global Ocean Governance’ in David Joseph Attard (ed), The imli Treatise on Ocean Global Governance Volume iii: imo and Global Ocean Governance (oup 2018) 48.

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duties set out in the 1974 solas154 and the 1979 sar.155 In particular, coastal States ‘…shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea…’,156 and where circumstances so require for this purpose are also encouraged to cooperate with neighbouring States, ‘by way of mutual regional arrangements’.157 Such type of cooperation may be beneficial in certain regions, such as the Mediterranean or Southeast Asia, where States are regularly asked to carry out and assist in rescue operations.158 However, it may be argued that the unclos framework dealing with sar activities is rather weak. There exists no unclos obligation on coastal States themselves to actually provide or undertake sar services, as found in the 1974 solas and the 1979 sar respectively.159 Instead, coastal States are required only to ‘promote the establishment, operation and maintenance’ of adequate and effective services. In Germany, for example, it is a private association which relies on donations that provides sar services.160 Furthermore, as argued by Barnes, in contrast to matters such as environmental protection or shipping standards, unclos does not appear to provide any effective rules of reference dealing with sar.161 3.2.3

The Duty to Render Assistance at Sea under imo Treaties

3.2.3.1 The 1974 solas 3.2.3.1.a The Duty to Render Assistance at Sea at the 1974 solas Conference Prior to the adoption of the 1974 solas, the main international instrument regulating the safety of life at sea was the 1960 solas. During the 1960 solas Conference,162 imo163 had provided a standing mechanism to update the

154 Ch 3, s 3.2.3.1.c. 155 Ibid s 3.2.3.2.d. 156 unclos, Art 98(2). 157 Ibid. 158 Ch 1, s 1.2. 159 See Ch 3, ss 3.2.2.3.b and 3.2.3.2.d.i. 160 See German Maritime Search and Rescue Association, ‘Home Page’ accessed 10 September 2018. 161 Barnes (n 119) 137. 162 The 1960 solas Conference was the first international conference held by imo after the Organization’s establishment in 1948. It was attended by 55 States; see imo, ‘solas: The International Convention for the Safety of Life at Sea, 1974’ (October 1998) Focus on imo 2. 163 Then known as the Inter-Governmental Maritime Consultative Organization (imco). The Organization was renamed imo in 1982; see Wilhelm H Lampe, ‘The “New” International Maritime Organization and its Place in Development of International Maritime Law’ (1983) 14 JmarL&Com 305, 305.

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­convention.164 As discussed above,165 the solas Conventions have covered many facets of safety at sea, including technical aspects concerning inter alia the design, operation, and construction of ships. To keep up with technological developments, many regulations dealing with such issues need to be amended often.166 Following the adoption of the 1960 solas, the international community encountered a major problem in that the traditional amendment procedure set out in the convention was preventing amendments coming into force within a reasonable period of time.167 To address this issue, the imo Assembly during its eighth session in 1973 considered it necessary to convene an international conference to conclude a new convention to replace the existing 1960 solas.168 It was intended that the new convention on the safety of life at sea would incorporate an improved and accelerated amendment process,169 known as the tacit amendment acceptance procedure.170 This procedure ensured that amendments would enter into force on a predetermined date, unless objected to by a specific number of States.171 Accordingly, amendments could come into force within a shorter period of time, resulting in the smoother and more effective updating of imo conventions. In fact, many important amendments to the 1974 solas have been adopted through the tacit acceptance procedure, including those affecting the duty to render assistance, such as the 2004 Amendments to the 1974 solas, discussed below.172 The 1974 solas Conference took place between 21 October and 1 November 1974173 and resulted in the adoption of the 1974 solas currently in force.174

164 165 166 167

imco, ‘Summary Record of the First Meeting’ (9 January 1975) SOLAS/CONF/SR.1, 2. Ch 2, s 2.3.3. Kenny and Tasikas (n 128) 174. Lei Shi, ‘Successful Use of the Tacit Acceptance Procedure to Effectuate Progress in International Maritime Law’ (1999) 11 usf mlj 299, 303–305. 168 imco Assembly, ‘International Conference on the Safety of Life at Sea’ (3 December 1973) Res A.304 (viii), aviii/Res 307. 169 It was the intention of the then Secretary-General of the imo, Mr. Chandrika Prasad Srivastava, that the conference would succeed in establishing a new formula which allowed the convention to be up-dated quickly, and that it would use the present opportunity to incorporate into the text of the new convention on the safety of life at sea those amendments adopted since 1960 which had not yet entered into force; see imco, ‘Summary Record of the First Meeting’ (9 January 1975) SOLAS/CONF/SR.1, 2. 170 imo, ‘solas: The International Convention for the Safety of Life at Sea, 1974’ [October 1998] Focus on imo 3–4. 171 1974 solas, Art viii; see also Shi (n 167) 300–302. 172 Ch 3, s 3.2.3.3. 173 imco, ‘Organization of the Work of the Conference, Note by the Secretariat’ (3 May 1974) SOLAS/CONF/3. Seventy-one States attended the conference. 174 imco, ‘Summary Record of the Eighth Meeting’ (29 January 1975) SOLAS/CONF/SR.8.

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During the conference, delegates reviewed the 1960 solas and any necessary amendments thereto.175 Committee ii of the conference discussed Chapter v on the Safety of Navigation, which covered regulations concerning the duty to render assistance and sar activities.176 From a review of the records of the conference, there appears to be have been no major discussions on or amendments to the provisions in Chapter v regulation 10 covering the duty to render assistance or regulation 15 dealing with coastal State sar obligations found in the 1960 solas.177 Consequently, the existing provisions were incorporated into the newly adopted the 1974 solas.178 The following sections examine the provisions regulating the duty to render assistance and sar activities under the 1974 solas. 3.2.3.1.b The Shipmaster’s Duty to Render Assistance at Sea The shipmaster’s duties in the rendering of assistance at sea under the 1974 solas are found in regulation 33(1) of Chapter v of Annex to the Convention,179 which provides as follows: 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. The obligation to provide assistance applies regardless of the nationality or status of such persons or the circumstances in which they are found.180 If the ship receiving the distress alert is unable or, in the special circumstances of the case, considers it unreasonable or ­unnecessary

175 imco, ‘Consideration of a Draft International Convention for the Safety of Life at Sea, 1974, Proposed amendments to the Articles of the 1960 Safety Convention’ (4 April 1974) SOLAS/CONF/4. 176 Ibid. 177 For a list of amendments made by Committee ii to ch v of the anx to the 1960 solas, see imco, ‘Draft Text of the International Convention for the Safety of Life at Sea, 1974, Amendments to Chapter v made by Committee ii’ (24 October 1974) SOLAS/CONF.C.2/5. 178 Amendments to the 1974 solas in 2000 resulted in the renumbering of reg 10 to reg 33, and reg 15 to reg 7; see Myron H Nordquist, Satya N Nandan, and James Kraska (eds), unclos 1982 Commentary: Supplementary Documents (Martinus Nijhoff Publishers 2012) 788. 179 The provisions of the 1974 solas, anx ch v, reg 33, do not prejudice the 1910 Salvage Convention discussed in Ch 2, s 2.3.1, particularly the obligation to render assistance imposed by Art 11; see 1974 solas, anx ch v, reg 33(6). 180 This sentence was introduced with the 2004 Amendments to the 1974 solas, which are discussed in Ch 3, s 3.2.3.3.

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to proceed to their assistance, he must enter in the logbook the reason for failing to proceed to the assistance of the persons in distress, taking into account the recommendation of the Organization to inform the appropriate search and rescue service accordingly. The criteria found in unclos Article 98(1),181 are largely reflected in the 1974 solas Annex Chapter v regulation 33(1). This illustrates the intricate relationship between unclos and the 1974 solas.182 In fact, similar language is used in both Conventions to ensure that the principles found in regulation 33(1) are compatible with the unclos regime regulating the duty to render assistance. Both, for example, require the shipmaster to ‘proceed’ with all possible ‘speed’ to the rescue or assistance of ‘persons in distress at sea’ if they are ‘informed’ of, or on ‘receiving information’ about, their need of assistance. However, unlike unclos Article 98(1), which requires the flag State to ensure that the shipmaster undertakes his duty, the 1974 solas directly addresses the shipmaster, which increases the burden of responsibility, making him directly accountable.183 Notwithstanding the 1974 solas approach, State parties would still be required under their domestic legislation to ensure that said duty is respected.184 Another difference between the two treaties lies in the references to the obligation to rescue. Under unclos Article 98(1)(b) there exists the shipmaster’s duty to rescue. No such duty is found in the 1974 solas; instead, the shipmaster’s obligation pertains to providing ‘assistance’. Nevertheless, this author feels that even if the 1974 solas obligation relates to ‘assistance’, such an obligation should also apply to rescue operations, which always constitute the rendering of assistance. Furthermore, the 1974 solas appears to cover a general duty to provide assistance in the case of all maritime casualties at sea. There is no elaboration of the shipmaster’s duties in this regard in the case of collisions at sea, as found in unclos Article 98(1)(c).185 The 1974 solas provisions appear to flesh out the duty to render assistance. Regulation 33(1) removes certain ambiguities surrounding the unclos rules regulating the duty.186 The former encourages increased communication in 181 Ch 3.2.2.3.a. 182 For further elaboration on the relationship between unclos and imo treaties, see generally Ch 4, s 4.2.1. 183 Ch 3, s 3.2.2.3.a. 184 For examples of domestic laws enforcing the duty to shipmaster’s duty to render assistance; see Ch 3, s 3.3.2. 185 Ch 3, s 3.2.2.3.a. 186 For examples of such ambiguities, see further Ch 3, s 3.2.2.3.a.

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distress situations between the shipmaster, persons in distress, and the relevant sar service: 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, ships, vessels and other craft and installations.187 The type of services mentioned above are generally undertaken by coastal State sar services coordinated through national rescue co-ordination centres.188 Therefore, the shipmaster’s 1974 solas obligation to inform both persons in distress and sar services that he is attending to an incident at sea fosters cooperation between the shipmaster and coastal State sar authorities on shore, which is likely to lead to more orderly and efficient rescue operations. Under the 1974 solas, there is specific reference to the shipmaster’s ‘obligation to provide assistance … regardless of the nationality or status of such persons or the circumstances in which they are found’.189 This phrase was inserted in light of the phenomenon of irregular migration by sea and the 2004 Amendments to the 1974 solas discussed below.190 This requirement extends the shipmaster’s obligation to render assistance to cover different situations in which migrants in distress may find themselves, including persons found in unseaworthy vessels who may be asylum seekers.191 The 1974 solas imposes an additional requirement on the shipmaster, who is obliged to enter into the vessel’s logbook the reasons for his failure to assist.192 This supplementary requirement ensures that shipmasters are held accountable for their actions by requiring them to make a written declaration explaining the reasons for failing to render assistance.193 Moreover, in situations of failure to render assistance, and also more generally when rendering assistance, shipmasters are obliged to

187 1974 solas, anx ch v, reg 2(5). 188 Rescue co-ordination centres are defined in the 1979 sar; see Ch 3, s 3.2.3.2.d.ii. 189 1974 solas, anx ch v, reg 33(1). 190 Ch 3, s 3.2.3.3.a. 191 Gallagher and David (n 125) 450. 192 Ibid. 193 This requirement appears to have been inherited from the text of the earliest version of the solas adopted in 1914; see Ch 2, s 2.3.3.

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take into consideration the recommendation of imo to inform the appropriate sar service.194 The shipmaster’s duties in the rendering of assistance are further defined in 1974 solas Annex Chapter v regulations 33(2)–(3), which provide a more detailed procedure for attending to distress situations: 1.

2.

3.

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. 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. 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.195

The procedure described above has largely preserved the original formulation found in the 1914 solas.196 Furthermore, it appears that all major revisions of the solas conventions in 1929, 1948, 1960, and 1974 have included the main obligations of the shipmaster in the procedure for attending to distress at sea situations. According to the 1974 solas, the shipmaster of a vessel in distress or a sar service may send out an alert to several vessels in the vicinity of the distressed vessel and also has the right to requisition one or more ships to assist. In accordance with unclos Article 98(1), and 1974 solas Annex Chapter v regulation 33(1), shipmasters of vessels who have been requisitioned must comply and proceed with all speed to the assistance of persons in distress. In 194 1974 solas, anx ch v, reg 33(1). In this respect reference should be made to other imo instruments regulating the duty to render assistance discussed in Ch 3, s 3.2.3. 195 The shipmaster’s duties in the rendering of assistance under reg 33(1)–(4) of ch v have been strengthened by additional obligations in reg 33(1-1) and 33(6) imposed by the 2004 Amendments to the 1974 solas. These obligations discussed in detail in Ch 3, s 3.2.3.3. 196 Ch 2, s 2.3.3.

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the context of imros, it is more likely that coastal State sar authorities would be in a better position to assess and decide which ship would be best able to render assistance. As discussed above,197 most migrants found in distress are generally rescued from small unseaworthy vessels which lack proper navigation equipment. At most, persons on board the vessel may be able to send out a distress signal, but they are unlikely to be able to locate vessels nearby. In accordance with unclos Article 98(1), the shipmaster may be relieved of his duty to render assistance under the 1974 solas if he considers it unreasonable or unnecessary to aid.198 Under the latter convention, there appears to be further qualifications to the shipmaster’s duty to render assistance, where failure to assist is more strictly regulated. Under regulation 33, the shipmaster may be alerted or aware of a distress situation but not necessarily requisitioned by the shipmaster of the vessel in distress or the sar service to assist. In such cases, a shipmaster may be released from his obligation to assist on learning that his ship has not been requisitioned, and that other ships have been requisitioned and are complying with the request.199 The shipmaster is also required, if possible, to communicate the decision to other requisitioned ships and to the sar service.200 This would avoid shipmasters of other vessels requisitioned proceeding to the distress site unnecessarily. In the case of a shipmaster whose vessel has been requisitioned, the shipmaster may only be released of his obligation to provide assistance if he is informed by the persons in distress or sar service that another vessel has reached the site of distress and assistance is no longer needed.201 The procedure laid down in the 1974 solas delineates in greater detail the shipmaster responsibilities in rendering assistance, in particular the need for communication with coastal State sar authorities. Furthermore, it regulates more clearly those situations in which a shipmaster is not obliged to provide assistance and provides guidance regarding the procedure to be undertaken in such cases. These rules contribute to a better understanding of the shipmaster’s duties in rendering assistance. 3.2.3.1.c Coastal State Rescue at Sea Obligations Coastal State duties to provide sar activities are dealt with in the 1974 solas Annex Chapter v regulation 7:

197 Ch 1, s 1.1. 198 1974 solas, anx ch v, reg 33(1). 199 Ibid reg 33(3). 200 Ibid. 201 Ibid reg 33(4).

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Each Contracting Government undertakes to ensure that any necessary arrangements are made for distress communication and coordination in their area of responsibility and for the rescue of persons in distress at sea around its coasts. These arrangements should include the establishment, operation and maintenance of such maritime safety facilities as are deemed practicable and necessary having regard to the density of the seagoing traffic and the navigational dangers and should, so far as possible, afford adequate means of locating and rescuing such persons. Each Contracting Government undertakes to make available information to the Organization concerning its existing rescue facilities and the plans for changes therein, if any…

Similar to unclos Article 98(2), the above provision encourages State parties to set up sar facilities to effectively render assistance at sea and around their coasts. It obliges State parties to ‘undertake’ to ensure that necessary arrangements for such services are made, including, for example, the establishment of maritime safety facilities which should be adequately equipped to locate persons in distress and arrange for their rescue. States are also encouraged to make available to the imo information pertaining to such sar facilities. However, as observed by Gallagher and David, ‘[t]he solas Convention does not detail how these requirements [found in solas Annex Chapter v regulations 7(1) and (2)] are to operate in practice’.202 This author agrees with this observation, as the 1974 solas does not elaborate on exactly what type of sar services are necessary. Neither does it require an obligation for international cooperation to provide sar services. Nevertheless, these issues are addressed in other international instruments, such as the 1979 sar discussed below.203 3.2.3.2 The 1979 sar As has been observed above, the obligation of the shipmaster to render assistance and the duty of coastal State to promote sar operations are complementary.204 Under the 1974 solas, the duty to render assistance is principally that of the shipmaster enforced by the flag State, but as indicated under the 1979 sar, the duty falls primarily on the sar State. Prior to the adoption of the 1979 sar, there was no comprehensive international regime covering maritime sar.205 The coordination of sar activities was largely organised by 202 203 204 205

Gallagher and David (n 125) 450; Kenney and Tasikas (n 128) 155. Ch 3, s 3.2.3.2. Ibid s 3.2.2.3.b. Jasmine Coppens, ‘The Law of the Sea and Human Rights in the Hirsi Jamaa and Others v. Italy Judgment of the European Court of Human Rights’ in Yves Haek and Eva Brems (eds), Human Rights and Civil Liberties in the 21st Century (Springer 2014) 187.

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individual States in accordance with their national requirements and dictated by the level of State resources.206 This resulted in some areas having wellestablished sar services, while in others there were none.207 Consequently, States’ maritime services developed by unequal degrees, leading to operational difficulties.208 The Indochinese crisis raised further problems associated with rendering assistance.209 Overwhelmed by the growing numbers of arrivals by sea, many governments in the region refused to allow disembarkation.210 Shipmasters were also discouraged from performing rescue operations, as they were unsure of the migrants’ post-rescue fate.211 The consequential loss of life pushed the international community to consider a more uniform and comprehensive legal approach to rescue at sea. At its twenty-fourth session in 1973, the imo’s Maritime Safety Committee212 established a Group of Experts, which drew up a draft convention on international sar,213 which was approved by the msc.214 During its tenth session in 1977, the organisation’s assembly called for a diplomatic conference to adopt the draft convention.215 The conference that adopted the 1979 sar was held in

206 Jessica E Tauman, ‘Rescued at Sea, But Nowhere to Go: The Cloudy Legal Waters of the Tampa Crisis’ (2002) 11 PacRimL&PolyJ 478, 471. 207 Button notes that: ‘[o]wing to the unique hazards encountered by ships as they ply the world’s oceans and by aircraft on transoceanic flights, as well as the challenges to coordinating and conducting maritime lifesaving operations, coastal states implemented national sar systems and sar organizations to search for and rescue those in distress at sea. However, prior to the 1970s there was no standardized system globally for organization, coordination, and conduct of sar operations.’; see Rick Button, ‘International Law and Search and Rescue’ (2017) 70 NavalWarCollRev 26, 27. 208 Kenney and Tasikas (n 128) 155; Tauman (n 206) 471. 209 Ch 1, s 1.2. 210 unga ‘Report of the Secretary-General on Oceans and the Law of the Sea’ (7 November 1979) UN Doc A/34/627 (1979 Report on the Oceans and the Law of the Sea), para 21. 211 Ibid. 212 Hereafter referred to as msc. 213 imco Doc msc xxviii/12 (16 June 1973); imco msc xxxii/14 (31 December 1974); imco, ‘Consideration of the Draft International Convention on Maritime Search and Rescue and Related Resolutions and Recommendations, Note by the Secretariat’ (22 September 1978) SAR/CONF/4; imco, ‘Final Act of the International Conference on Maritime Search and Rescue 1979’ (25 April 1979) SAR/CONF/9, para 12; Nikos Papadakis, The International Legal Regime of Artificial Islands (Sijthoff Publications 1977) 250. 214 imco, ‘Final Act of the International Conference on Maritime Search and Rescue 1979’ (25 April 1979) SAR/CONF/9, para 12. 215 Kamil A Bekiashev and Vitali V Serebriakov, International Marine Organizations: Essays on Structure and Activities (Martinus Nijhoff Publishers 1981) 51.

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Hamburg from 9 to 27 April 1979.216 It involved the participation of over 50 States, as well as a number of international organisations,217 including unhcr, ics, and the International Civil Aviation Organization.218 The 1979 sar establishes a comprehensive international system covering sar operations.219 It provides for the rescue of persons in distress to be coordinated by a sar organisation, and where necessary, through cooperation between neighbouring sar organisations.220 Following the adoption of the 1979 sar, the msc divided the world’s oceans into 13 sar areas,221 wherein States are responsible for a delimited sar regions,222 within which sar services are provided.223 It should be noted that the ssr does not equate to a jurisdictional zone, ‘[n]othing in the Convention shall prejudice …the nature and extent of coastal and flag State jurisdiction’.224 Furthermore, the 1979 sar cannot be interpreted in a way which prejudices the obligations and rights of vessels provided for in Article ii (2) of the 1979 sar, such as, for example, the extent of coastal and flag State jurisdiction under the maritime zones regulated by unclos.225 srrs are established by agreement among State parties concerned, and notified to the imo’s Secretary-General.226 These should be made available in the ‘imo Global Search and Rescue Plan’.227 Furthermore, such types of agreements should ideally operate not only to delimit srrs but also to serve as the 216 imco, ‘Final Act of the International Conference on Maritime Search and Rescue 1979’ (25 April 1979) SAR/CONF/9, para 1; imco, ‘Summary Record of the First Plenary Meetings’ (16 May 1980) SAR/CONF/SR.1, 2. 217 Ibid paras 2, 5, and 6. 218 Hereafter referred to as icao. 219 1979 sar, Preamble. 220 Barbara Kwiatkowska (ed), International Organizations and the Law of the Sea: Documentary Yearbook 1997 (Kluwer Law International 1999) 44–45. 221 See accessed 2 August 2018. 222 Hereafter referred to as srr. 223 1979 sar, anx ch 1, para 1; see also ch 2, para 2.1.3. The delimitation of srrs does not affect or prejudice the delimitation of any boundary between States; see 1979 sar, anx ch 2, para 2.1.7; see also, International Aeronautical and Maritime Search and Rescue Manual, Volume i, s 2.3.15(e). 224 sar, Art ii (1). 225 Seline Trevisanut, ‘Is There a Right to be Rescued at Sea? A Constructive View’ (2014) QuestIntlL 3, 12; Efthymios Papastavridis, ‘Is There a Right to be Rescued? A Skeptical View’ (2014) QuestIntlL 17, 27–28. 226 1979 sar, anx ch 2, paras 2.14–2.15. 227 ‘imo Global Search and Rescue Plan’ accessed 15 August 2018.

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basis for cooperation in the conduct of sar operations.228 In fact, imo has advised that the limits of srrs should not serve as barriers for assisting persons in distress. Any sar facility should respond to distress situations whenever and wherever possible, and in this respect, there should be close cooperation between sar States.229 3.2.3.2.a The Duty to Render Assistance at Sea at the 1979 sar Conference The provision regulating the duty to render assistance underwent interesting developments during the 1979 sar Conference. The original formulation of the duty provided by the Group of Experts in Chapter 2, para 2.1.7, of the draft technical annex to the 1979 sar was framed as follows: ‘…[i]n providing assistance to persons in distress at sea, Contracting States shall do so regardless of the nationality of such persons’.230 The travaux préparatoires of the sar conference shows that on the recommendation of unhcr, the duty contained in para 2.1.7 was amended as follows: In providing assistance to persons in distress at sea, Contracting States shall do so regardless of the nationality or status of such persons or the nationality of the ship on which such persons find themselves.231 The revised provision ensured that (i) the duty to render assistance was not subject to discrimination on the basis of either nationality or the status of persons in distress and (ii) in cases of rendering assistance to refugees, the matter fell within unhcr’s mandate and therefore its responsibility.232 However, not all States agreed with the unhcr proposal. Sweden argued that the unhcr formulation implied only States could provide assistance, and therefore only the latter had obligations in this regard.233 Sweden wished to propose a formulation to ensure that under the 1979 sar, States could rely on non-State bodies

228 Button (n 207) 30. 229 See the International Aeronautical and Maritime Search and Rescue Manual, Volume i, s 15(e) discussed further in Ch 3, s 3.4. 230 imco, ‘Technical Annex to the Draft International Convention on Maritime Search and Rescue’ sar v/6, anx iii, 4, para 2.1.7. 231 imco, ‘Consideration of the Draft International Convention on Maritime Search and Rescue and Related Resolutions and Recommendations, Agenda 6, Note by the Office of the United Nations High Commissioner for Refugees’ (29 September 1978) SAR/CONF/6/2. 232 Ibid. 233 imco, ‘Summary Record of the Seventh Plenary Meeting’ (16 May 1980) SAR/CONF.SR.7, 2.

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to provide assistance and that such responsibility did not fall exclusively on State actors.234 The Swedish proposal was eventually adopted by the conference235 and included in the final text of the 1979 sar discussed below.236 3.2.3.2.b The Shipmaster’s Duty to Render Assistance at Sea The main provision regulating the shipmaster’s duty to render assistance in Chapter 2, para 2.1.10 provides as follows: Parties shall ensure that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such person or the circumstances in which that person is found.237 Like unclos,238 the 1979 sar does not address the shipmaster directly when regulating the duty to render assistance, but more generally State parties. These may include both flag and coastal States that are required to ensure that shipmasters provide assistance. Generally, the 1979 sar provision appears to be in line with unclos239 and the 1974 solas240 requiring assistance to be provided to ‘any person’ in distress at sea, regardless ‘of the nationality or status of such a person or the circumstances in which that person is found’.241 Like the 1974 solas, the 1979 sar Annex Chapter 2, para 2.1.10, refers to the provision of ‘assistance’ rather than ‘rescue’.242 Nevertheless, as discussed above,243 the obligation would still apply to rescue operations, which constitute the rendering of assistance. Unlike unclos and the 1974 solas – under which the duty is limited by the need to protect the safety of the shipmaster’s ship, crew, and passengers – the 1979 sar Annex Chapter 2, para 2.1.10, does not appear to qualify the duty. Yet it is unlikely that this should be interpreted as meaning that assistance should be rendered in all circumstances, even in cases in which it would be unreasonable to do so, such as when it threatens the safety of the rescuing vessel or the 234 Ibid. 235 imco, ‘International Convention on Maritime Search and Rescue, 1979, Annex to the Convention’ (25 April 1979) SAR/CONF/11, 3, para 2.1.10. 236 Ch 3, s 3.2.3.2.b. 237 1979 sar, anx ch 2, para 2.1.10. 238 Ch 3, s 3.2.2.3.a. 239 Ibid. 240 Ibid s 3.2.3.1.b. 241 1979 sar, anx ch 2, para 2.1.10. 242 Ibid. 243 Ch 3, s 3.2.2.3.a.

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persons on board. This argument is strengthened by the 1979 sar Article 2, which states that none of its provisions should be construed as prejudicing the obligations or rights of vessels provided for in other international instruments such as unclos or the 1974 solas. As shown below,244 other provisions of the 1979 sar strengthen the general duty to render assistance provided for in Chapter 2, para 2.1.10, of Annex to the Convention. In this respect, the 1979 sar clarifies certain aspects of rescue operations relevant to the shipmaster which had not been addressed by unclos and the 1974 solas. The Convention also institutes a legal regime which enables States to implement their sar services more effectively. This development provides further support to shipmasters when undertaking imros and enhances their capabilities to effectively render assistance. 3.2.3.2.c Distress and Rescue The main criteria under the 1979 sar for determining whether distress exists appear to be a ‘reasonable certainty’ that a person, vessel, or other craft is (i) threatened by grave and imminent danger and (ii) requires immediate assistance. sar States, in interpreting distress situations, should apply these criteria. Furthermore, flag States should ensure that their shipmasters, in assessing distress situations, also follow such criteria. The shipmaster should therefore exercise his judgment and discretion to determine with ‘reasonable certainty’ whether a distress situation exists.245 Does the 1979 sar definition of a distress incident necessarily imply that such a situation must be one that imperils human life? To answer this question, it may be pertinent to refer to the interpretation of distress by international bodies and tribunals. The ilc noted that a situation of distress ‘may at most include a situation of serious danger, but not necessarily one that jeopardises the very existence of the persons concerned’.246 Thus, it may be argued that in the context of rescue, a distress situation may still arise even if the danger to the vessel or persons is not acute.247 This interpretation is supported by 244 Ibid. 245 The degree of discretion which may be exercised by the shipmaster when assessing distress situations is discussed in Rolf E Fife, ‘The Duty to Render Assistance at Sea: Some Reflections after Tampa’ in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Martinus Nijhoff Publishers 2003) 481. 246 ilc, ‘Report of the International Law Commission to the General Assembly on the Work of 31st Session (14 May–3 August 1979), Draft Articles on State Responsibility’, Commentary on Art 32 (1979) ii ybilc, pt ii, 135, para 10. 247 See also Kate A Hoff Case, Administratrix of the Estate of Samuel B Allisson, Deceased (USA) v United Mexican States (1929) vi riaa 444 (Kate A Hoff Case); Eleanor, the (1809) Edwards’ Admiralty Reports 135 (The Eleanor) 161.

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the Rainbow Warrior248 decision, where the arbitral tribunal considered distress to be ‘[t]he existence of very exceptional circumstances of extreme urgency involving medical or other considerations of an elementary nature…’,249 but not necessarily a situation which endangers life. The 1979 sar definition of distress appears to reflect the generally accepted definition of distress and incorporates elements of (i) seriousness (‘grave’) and (ii) time (‘imminent’) as characteristics of the danger.250 The definition thereby covers cases of serious danger to the ship and persons on board, as well as probable exposure to such dangers. These requirements would be reasonably met in cases in which migrant vessels are, for example, on the brink of sinking or in which migrants on board require urgent medical assistance. It may be argued that running low on fuel and provisions or forecasted hazardous weather conditions constitute aggravating factors of distress.251 This approach is reflected in the practice of EU member States in maritime surveillance operations. Such operations are coordinated by Frontex under EU Regulation No. 656/2014 on Maritime Surveillance.252 In line with the 1979 sar, the regulation breaks down difficulties encountered by vessels and persons at sea into different phases of ‘uncertainty, alert or distress’.253 When assessing whether a vessel is in distress, the person in command of the participating unit254 must not only determine whether there is an immediate need of assistance but also the extent to which a distress situation exists. This would require such States to ensure that the unit’s shipmaster considers a number

248 Rainbow Warrior Affair Case (New Zealand v France) (1990) 20 riaa 217. 249 Ibid 255, para 79. 250 Roland Bank, ‘Introduction to Article 11’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (oup 2011) 822. 251 Ibid. 252 Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2014] oj L189/93 (EU Maritime Surveillance Regulation). For an in-depth assessment of the application of the EU Maritime Surveillance Regulation in migrant interception and rescue operations; see Enkelejda Koka and Denard Veshi, ‘Irregular Migration by Sea: Interception and Rescue Interventions in Light of International Law and the EU Sea Borders Regulation’ (2019) 21 ejml 26, 26–52. 253 EU Maritime Surveillance Regulation, Art 9(2)(c–e). 254 A participating unit is defined as a ‘maritime, land or aerial unit under the responsibility of the host Member State or of a participating Member State that takes part in a sea operation…’; see EU Maritime Surveillance Regulation, Art 2(5).

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of factors, including (i) the existence of a request for assistance (although such a request should not determine exclusively the existence of a distress situation);255 (ii) the seaworthiness of the vessel and its capability to reach its final destination;256 (iii) the number of people aboard compared with the type and size of the vessel;257 (iv) the availability of resources such as fuel, water, and food to reach land;258 (v) the availability and efficiency of safety and navigational equipment on board;259 (vi) the presence of persons requiring urgent medical attention;260 and (vii) weather conditions, including weather and marine forecasts.261 It is interesting to note that under the 2004 Amendments to sar discussed below,262 the definition of distress was extended to include persons in need of assistance who have landed on a coast to seek refuge.263 However, this would apply only if persons found are on a coast in a remote location264 that is inaccessible to any rescue facility other than as provided for in the Annex to the 1979 sar.265 This may require the shipmaster to provide assistance, even though persons are not at sea. One can envisage that due to the inaccessibility at the remote location that access is only via sea. It would therefore appear that at least under sar, distress may also cover a situation on land. This extension may lead to various problems. For example, should the shipmaster be required to render assistance, does he require the consent of the coastal State? This author believes this would be the case, unless the situation is so urgent that it requires prompt assistance.266 One may also have to consider the method of providing assistance. This may require a boarding party to enter the territory of another State with consequential repercussions, if the rescue, for example, 255 256 257 258 259 260 261 262 263

EU Maritime Surveillance Regulation, Art 9(f)(i). Ibid Art 9(f)(ii). Ibid Art 9(f)(iii). Ibid Art 9(f)(iv). Ibid Art 9(f)(vi). Ibid Art 9(f)(vii). Ibid Art 9(f)(x). Ch 3, s 3.2.3.3.c. imo msc, ‘Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended’ (20 May 2004) Res msc.153(78), para 2; see also the 1979 sar, anx ch 2, para 2.1.1. 264 Ibid. 265 Ibid. According to the 1979 sar, anx ch 1, para 1.5.7, rescue facilities include ‘any mobile resource, including designated search and rescue units, used to conduct search and rescue operations’. 266 Furthermore, it should be noted that under the 1979 sar, anx ch 3, para 3.1.5, State parties are encouraged to enter into agreements governing the conditions for entry of each other’s sar units into or over their respective territory or territorial responsibilities; see pages 71–72.

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i­ nvolves provision of assistance such as the supply of medical care or food. In such cases, the boarding party is to leave as soon as practicable, but if the rescuees require to be uplifted, then the rescue ship would have to wait until the persons are embarked onboard the rescuing vessel. Nevertheless, it would be reasonable to expect the shipmaster to inform the coastal authorities of the details of his proposed operation. The 1979 sar emphasises that these exceptional measures are warranted due to the inaccessibility of the location. It has been suggested that the rather wide definitions of distress under the 1979 sar is useful, for it allows the shipmaster to assess each case ‘with reasonable certainty’ and after considering all relevant elements. State practice illustrates that the interpretation and application of 1979 sar Annex Chapter 1, para 1.3.13, dealing with the definition of distress, vary. Some States such as Malta, strictly follow the definition of distress drawn directly from the 1979 sar. A distress situation is one in which persons are faced with imminent danger at sea and require immediate assistance, and where failure on the part of Armed Forces of Malta267 to intervene in the most expeditious manner possible would result in injury or death.268 The Greek Hellenic Coastguard has taken a similar position.269 Other States, such as Italy, argue that all unseaworthy vessels are considered to be in distress.270 When there is a situation of distress, the 1979 sar requires that rescue be effected. Rescue has been defined under Chapter 1, para 1.3.13, of Annex to the Convention as ‘[a]n operation to retrieve persons in distress, provide for their initial medical or other needs and deliver them to a place of safety’. This definition, read in conjunction with unclos Article 98(1), leads to a dual obligation: (i) the flag State must ensure that the shipmaster complies with the requirements of the 1979 sar definition of rescue and (ii) sar States must ensure that they allow the shipmaster to proceed with the delivery of persons to a place of safety. The latter condition leads to the question: does the delivery of persons to a place of safety include disembarkation? Would, for example, a State have complied with the 1979 sar definition of rescue if it simply allows the 267 Hereafter referred to as afm. 268 Information obtained from an interview with a former Lieutenant Colonel of Maritime and Air Plans Operations, afm (University of Malta, Msida, 15 February 2019). 269 Sergio Carrera and others, Policing Humanitarianism: EU Policies against Human Smuggling and their Impact on Civil Society (Hart Publishing 2019) 105. 270 Ibid 104–105; see also Maarten Den Heijer, Europe and Extraterritorial Migration Control (Hart 2012) 245. This position is supported by scholars, such as Papastavridis and MorenoLax; see Efthymios Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of States (Hart Publishing 2013) 297; Violeta MorenoLax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member State Obligations Accruing at Sea’ (2011) 23 ijrl 174, 195.

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s­ hipmaster to seek refuge in a port of safety and after it has provided the necessary humanitarian assistance requests the vessel to leave its port without disembarking rescuees? This author suggests that although not explicitly provided for in the 1979 sar definition of rescue, for the delivery of persons to a place of safety to be meaningful it should also include disembarkation.271 It may also be argued that if the duty to rescue is interpreted to include the disembarkation as an intrinsic part of fulling the rescue, failure to permit disembarkation is synonymous with the failure to effect a rescue.272 Conversely, it may be argued that (i) the definition of rescue under the 1979 sar, although indicating the delivery of persons in distress to a place of safety, is merely a definition and cannot give rise to an obligation, and (ii) State parties are required by the 1979 sar to ‘render assistance’ instead of ‘rescue’ and therefore avoids incorporating the requirement of disembarkation to a place of safety. However, this author feels that even though the 1979 sar obligation relates to ‘assistance’, this should be interpreted to include rescue.273 Furthermore, this is strengthened, as seen below, by the fact that the rescuing vessel at most can only be a temporary place of safety.274 Consequently, it may be possible to hold a State in breach of the duty to rescue should it unfoundedly refuse to permit disembarkation of persons in distress.275 This position is supported by the obligations placed on States under the 2004 Amendments to the 1974 solas and the 1979 sar discussed below.276 3.2.3.2.d Coastal or sar State Rescue at Sea Obligations Cooperation between the shipmaster and the coastal or sar State is essential for the effectiveness of the international sar regime. The shipmaster has a duty to render assistance to persons in distress, while the coastal or sar State has a reciprocal duty to coordinate the sar operation.277 To render more effective the implementation of the shipmaster’s duty, the 1979 sar obliges State parties to undertake all legislative or other appropriate arrangements for the

271 272 273 274 275

This view is shared by other scholars; see Mallia, Migrant Smuggling (n 119) 97. O’Brien (n 124) 724. Ch 3, s 3.2.3.1.b. Ibid s 3.4.1.4. This was the argument put forward by Norway following the mv Tampa incident; see imo, ‘Communication by the Government of Norway’ (11 February 2002) Circular Letter No 2363, 2–3. 276 Ch 3, s 3.2.3.3. 277 Button (n 207) 30–31.

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provision and coordination of coastal or State sar activities.278 The following sections identify the principal obligations of coastal or sar States under the 1979 sar and assesses how they affect the shipmaster’s duties. 3.2.3.2.d.i

sar Services

Para 2.1.1 of Chapter 2 to the Annex of 1979 sar provides as follows: 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. 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… In accordance with unclos Article 98(2), under the 1979 sar States have an obligation to provide sar services. However, the 1979 Convention appears to use more compelling language than that found in unclos, which requires that States only ‘promote’ the establishment of sar services. The 1979 sar uses mandatory language: States ‘shall’ participate in the development of sar services and ‘shall’ make necessary arrangements to ensure that assistance is provided.279 The 1979 sar obligation to provide sar services appears to reflect the 1974 solas obligation that requires States to undertake the necessary arrangements for the rescue of persons in distress at sea around its coasts and to ensure the establishment of sar facilities.280 Harmonisation between the 1974 solas and the 1979 sar rescue regimes is further evidenced by the adoption of a common definition of sar services: performance of distress monitoring, communication and coordination of sar functions including inter alia the provision of medical assistance, use of aircraft, vessels, and other craft and other installations for the purpose of rescue at sea.281 278 1979 sar, Art 1. 279 See 1979 sar, anx ch 1, para 1.1. Severance argues that ‘[t]he duty to provide search and rescue services [in the 1979 sar] thereby went from being a suggestion to a binding duty’; see Arthur A Severance, ‘The Duty to Render Assistance in the Satellite Age’ (2006) 26 (2) CalWIntlLJ 377, 391. 280 1974 solas, anx ch v, reg 77-1. 281 1979 sar, anx ch 1, para 1.3.3. The definition of sar services in the 1979 sar reflects that provided in the 1974 solas; see 1974 solas, anx ch v, reg 2–5.

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As discussed above,282 a significant limitation found in the provisions regulating sar services, under unclos and the 1974 solas, is that neither convention elaborates on how States can develop and implement such services. This lacuna may give rise to differing approaches to responsibilities when providing such services. This may be problematic for the shipmaster, as he cannot rely on a uniform level of effective sar services. The 1979 sar addresses this issue and provides a formalised regime under which States can develop their national sar systems.283 The 1979 sar requires that States meet certain criteria for the establishment of an effective sar mechanism. This includes (i) establishing a domestic legal framework regulating sar activities,284(ii) assigning a responsible authority for such activities,285 (iii) organising available State resources for sar operations,286 and (iv) developing communication facilities.287 It also obliges parties to develop suitable facilities and identify specific sar units to participate in such services.288 These should be units of trained personnel, provided with suitable equipment to expeditiously conduct sar operations.289 Such resources may be particularly important, for example, when shipmasters out at sea are unable to attend to large numbers of migrants and need additional assistance from coastal or sar State sar units. 3.2.3.2.d.ii

Rescue Co-ordination Centres

To establish appropriate national procedures to support sar services,290 parties to the 1979 sar are required to set up, either individually or in cooperation with other States, ‘rescue co-ordination centres’.291 These have been described as the backbone of the international sar system.292 The shipmaster relies on instructions from the rcc before and throughout the undertaking of a rescue

282 Ch 3, ss 3.2.2.3.b and 3.2.3.1.3. 283 1979 sar, anx ch 2, paras 2.2, 2.2.1 and 2.2.2. 284 Ibid para 2.1.2(1). 285 Ibid para 2.1.2(2). 286 Ibid para 2.1.2(3). 287 Ibid para 2.1.2(4). 288 Ibid para 2.5. 289 Ibid ch 1, para 1.3.8; see also ch 2, para 2.6.1. 290 Ibid ch 2, para 2.2. 291 Hereafter referred to as rccs; see sar, anx ch 2, para 2.3.1. State parties may also establish rescue sub-centres, defined under the convention as ‘a unit subordinate to a rescue coordination centre established to complement the conduct of search and rescue ­operations within a search and rescue region’. 292 Button (n 207) 30.

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operation.293 The effectiveness of rescue operations, particularly imros, depend on communication and cooperation between the shipmaster and the relevant rccs.294 There must be a single rcc in each srr, which shall be responsible for sar services as and for coordinating the conduct of sar operations within that srr.295 Therefore, if, for example, a migrant vessel finds itself in distress within an srr, it shall be the responsibility of that State’s rcc to coordinate the operation and ensure that assistance is rendered. rccs should assume a level of preparedness to effectively conduct rescue operations296 and are required to develop detailed plans for such operations.297 They should be equipped to receive distress alerts originating from within the srr, as well as arrange for communications with persons in distress, sar facilities, and other rccs.298 This requires the rcc to ensure that effective arrangements are in place for communication equipment and for responding to emergency situations.299 The rcc should have the capability to access information regarding the position, course, and speed of vessels within its area which may be able to provide assistance and to be able to contact them.300 The shipmaster who is asked to assist in a rescue operation should be able to rely on the preparedness and capabilities of the rcc to effectively coordinate the rescue and provide him with the necessary support.301 In the initial stages of a potential rescue operation, a rcc may receive information about persons or vessels in distress and is then responsible for (i) evaluating the situation and (ii) determining the appropriate emergency phase and the appropriate action to be taken.302 Therefore, the rcc must be in a position to use available resources. A situation may arise in which a commercial vessel is located much closer to the site of distress than the sar State’s own 293 Ch 3, s 3.4.1.1. 294 Ibid. 295 1979 sar, anx ch 1, para 1.3.5. The details of established rccs of sar States are available on the imo Global Search and Rescue Plan’ see accessed 1 September 2018. 296 1979 sar, anx ch 4. 297 Ibid para 4.1.3. 298 Ibid ch 2, para 2.3.2. 299 Ibid ch 4, para 4.2.2. 300 Ibid para 4.1.2. This information should be kept in the rcc or readily available when necessary. 301 See further Ch 3, s 3.4.1.1. 302 1979 sar, anx ch 4, para 4.2.4. As is discussed further below, the 2004 imo Guidelines on the Treatment of Persons Rescued at Sea para 6.7, provides that the first rcc contacted is responsible for coordinating the case until the responsible rcc or other competent authority assumes responsibility.

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sar units. In such cases, the rcc may consider the former to be the most effective sar resource available and may require the shipmaster of that vessel to assist. This information should also be relayed by the rcc to the persons or vessels in distress.303 Under the 1979 sar, emergency phases are categorised as follows: a) The uncertainty phase, which relates to a situation in which a person has been reported missing or a vessel or craft is overdue, or when a vessel or other craft failed to make an expected position or safety report.304 This phase is unlikely to arise in the context of an imro, considering that irregular migrants generally embark on clandestine voyages and thus attempt to avoid detection by State authorities. Furthermore, in such cases, vessels used for sea voyages are usually small, unregistered vessels which cannot be tracked easily by international surveillance systems.305 b) The alert phase arises when attempts to establish contact with a person or a vessel or other craft have failed306 or when information has been received indicating that the operating efficiency of a vessel or other craft is impaired, but not to the extent that a distress situation is likely.307 Such a phase may ensue if, for example, a shipmaster out at sea has encountered a migrant vessel which did not appear to be in immediate distress. He may relay this information to the rcc to monitor the situation or receive guidance. c) The distress phase, which, as discussed above,308 occurs when the rcc receives positive information that a person or a vessel or other craft is in danger and in need of an immediate assistance.309 Such a phase may arise (i) when unsuccessful attempts have been made to establish contact with the person or vessel or other craft and more wide-spread enquiries point to the probability that a distress situation exists,310 or (ii) when information is received which indicates that the operating efficiency of a vessel or other craft has been impaired to the extent that a distress situation is likely.311

303 1979 sar, anx ch 4, para 4.2.4. 304 Ibid para 4.4.1; see also para 4.5.1. 305 Ch 1, s 1.1. 306 1979 sar, anx ch 2, para 2.1. 307 Ibid para 2.2; see also ch 4, para 4.5.2. 308 Ch 3, s 3.2.3.2.c. 309 1979 sar, anx ch 4, para 4.4.3.1. 310 Ibid para 4.4.3.2. 311 Ibid para 4.4.3.1; see also ch 4, para 4.5.3.

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The categorisation of emergency phases is helpful for the overall coordination and organisation of international sar activities. It allows the rcc concerned to prioritise those cases in which people or vessels are in a state of immediate distress and require rescue. This information can then be relayed to shipmasters out at sea or a coastal or sar State’s sar units. Ultimately, the shipmaster’s success in implementing this duty largely depends on the coastal or sar State to fulfilment of its own obligations.312 3.2.3.2.d.iii Joint sar Operations

In 1998, the 1979 sar was revised to promote even greater regional cooperation and to further clarify the responsibilities of coastal States when coordinating sar activities.313 A significant concretisation of such cooperation is also evident in the 1979 sar Annex Chapter 3, para 3.1.1: Parties shall co-ordinate their search and rescue organizations and should, whenever necessary, co-ordinate search and rescue operations with those of neighbouring States.314 Such types of cooperative agreements ensure clarity regarding responsibilities of sar States, and result in smoother coordination of rescue operations. This would encourage the readiness of the shipmaster to intervene, as it is more likely that he will receive the necessary support from different States in the particular area or region. In fact, a number of parties, such as Malta, have concluded agreements in accordance with Chapter 3, para 3.1.1.315 Noteworthy also are various regional sar agreements, such as 2011 Agreement on Cooperation

312 Ch 3, s 3.2.2.3.b, s 3.2.3.1.c, and s 3.2.3.2.d. 313 Gallagher and David (n 125) 451. 314 1979 sar, anx ch 3, para 3.1.1. 315 Eg, on 18 March 2009, Malta concluded a Memorandum of Understanding (MoU) with Libya in the field of sar, intended to strengthen relations between the two States in improving maritime safety of life at sea. The MoU covers, inter alia, aspects relating to increased coordination and cooperation in sar activities in their respective srrs; see accessed 1 October 2018 (This MoU has not been made publicly available on Malta’s Ministry of Foreign Affairs website). Malta has also concluded an MoU for Cooperation between the Armed Forces of Malta and the United States Coast Guard Concerning Aeronautical and Maritime Search and Rescue (adopted 11 July 2009, entered into force 11 July 2009) (Malta US–MoU on Aeronautical and Maritime sar); see accessed 1 October 2018.

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on Aeronautical and Maritime Search and Rescue in the Arctic,316 concluded with the aim of strengthening aeronautical and maritime sar and its coordination in the Arctic.317 This agreement has (i) delimited the Arctic space into srrs in accordance with the 1979 sar318 and (ii) formalised the sar responsibilities of each state in this area and cooperation between parties.319 In practical terms, cooperation under the 1979 sar may involve a State allowing the sar units of another State party to enter into or over its territorial sea320 strictly for sar purposes.321 This would allow the shipmaster speedy access to persons in distress. In such cases, the State requesting such an arrangement is to transmit a request to the relevant State party giving full details of the purpose of the sar mission to the latter’s rcc or any other authority designated by that State.322 Such a cooperative arrangement is reflected in section 3.10 of the Malta–US MoU on Aeronautical and Maritime sar: In accordance with customary international law, solely for the purpose of rendering emergency rescue assistance to persons, vessels, or aircraft in danger or distress, when the location is reasonably well known, sar surface facilities of a Participant may immediately enter into the territory of the other Participant, with notification of such entry made as soon as practicable…323 3.2.3.3 The 2004 Amendments to the 1974 solas and the 1979 sar 3.2.3.3.a The Development of the 2004 Amendments The mv Tampa incident324 led to increased efforts by the international community to re-examine and more thoroughly address issues concerning rescue operations conducted by the shipmaster, particularly in light of imros. It was generally recognised that a deficiency existed in the unclos, the 1974 solas, and the 1979 sar regimes regarding the disembarkation of rescuees to a place 316 (adopted 12 May 2011, entered into force 19 January 2013) 50 ilm 1119 (2011). The MoU was signed by Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the US. 317 Ibid Art 2. 318 Ibid anx. 319 Ibid Art 9. 320 Subject to applicable national laws, rules, and regulations; see 1979 sar, anx ch 3, para 3.12. 321 1979 sar, anx ch 3, para 3.1.2. 322 Ibid para 3.1.3. 323 Malta–US MoU on Aeronautical and Maritime sar, s 3.10. 324 Ch 1, s 1.2.

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of safety.325 Shortly after the mv Tampa incident, the imo Assembly adopted Resolution A.920(22),326 calling upon the msc, Legal Committee,327 and Facilitation Committee328 to review relevant imo treaties and instruments for the purpose of identifying any ‘gaps, inconsistencies, ambiguities, vagueness or other inadequacies’329 in the existing legal framework regulating rescue operations. Considering the multifaceted nature of the problem concerning imros, the imo Assembly considered it important that the above-mentioned Committees also liaise with other relevant international and industry organisations.330 This approach included a review of legal texts and other instruments adopted under the auspices of relevant organisations, and possibly the creation of an inter-agency coordinating mechanism to consider and manage issues concerning the rescue of persons in distress.331 Little discussion took place in the falcom relating to the review task mandated by imo Resolution A.920(22). A number of delegations recognised the inadequacies of the Convention on the Facilitation of International Maritime Traffic332 to effectively address problems raised in the Assembly, namely the absence of a provision regulating the landing of rescuees.333 However, States recognised that the burden placed on shipmasters in rescue operations was untenable and that rescuees ‘should not remain unduly on board the rescuing ship’.334 This prompted some States, including Denmark, to present proposals which would facilitate the shipmaster’s disembarkation: When a ship has retrieved persons in distress at sea, public authorities in the next port of call or the nearest port shall allow disembarkation … The public authorities shall decide whether they are admissible according to 325 imo FALCOM, ‘Measures and Procedures for the Treatment of Persons Rescued at Sea: Facilitation Aspects. Outcome of msc 76’ (24 October 2002) fal 30/9, para 9. 326 imo Assembly, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (29 November 2001) Res A.920(22) (imo Res A.920(22)). 327 Hereafter referred to as leg. 328 Hereafter referred to as falCOM. 329 imo Res A.920(22), para 1. 330 imo FALCOM, ‘Measures and Procedures for the Treatment of Persons Rescued at Sea: Facilitation Aspects. Outcome of msc 76’ (24 October 2002) fal 30/9; see also imo msc, ‘Outcomes of the Twenty-second Session of the Assembly – Note by the Secretariat’ (7 January 2002) msc 75/2/2, para 21. 331 Ibid. 332 (adopted 9 April 1965, entered into force 5 March 1967) 591 unts 265 (1965 fal). 333 imo FALCOM, ‘Report of the Twenty-ninth Session of the Facilitation Committee’ (30 January 2002) fal 29/18, para 7.41. 334 Ibid.

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national law and international conventions, and if not arrange for their reception in another State…335 Ultimately, it was decided that issues concerning disembarkation fell outside the scope of the 1965 fal and that other conventions such as the 1974 solas and the 1979 sar may be more appropriate instruments. During the msc’s seventy-fifth session, several proposals specifically addressing the shipmaster’s position in imros were submitted by States, building upon previous submissions to the Sub-committee on Radiocommunications and Search and Rescue.336 For example, one French proposal337 appeared to give predominance to the shipmaster’s discretion to assess a rescue operation and also insisted on adequate support being provided to him in such cases.338 These considerations were reflected in the proposal that the 1974 solas be amended to ensure that when conducting a rescue, the shipmaster is not subjected to external pressure from third parties, including the shipowner.339 The French presented a subsequent and more controversial proposal which would have allowed the shipmaster to disembark rescued persons ‘at the nearest appropriate [place or port] taking into account the number of persons rescued the size of the ship and her route’.340 This implied that under the 1974 solas, the shipmaster could have potentially been given ultimate decision to choose where rescuees should be disembarked. This seems to conflict with another French proposal provided in the same paper to amend the 1979 sar, where it was suggested that coastal States’ rccs could determine the most suitable place for disembarkation of rescuees.341 However, such a determination would still be subject to the ‘wishes of the shipmaster, the number of persons on board, their needs, [and the] facilities of the rescue vessel’.342 Other significant proposals appear to target specific problems associated with saving migrants in distress, particularly when rescued in large numbers. Certain French proposals to amend the 1974 solas required the shipmaster to

335 Ibid para 7.44. 336 Hereafter referred to as comsar. For a discussion of the initial proposals submitted by members to comsar, see Kenney and Tasikas (n 128) 163–165. 337 imo msc, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (4 March 2002) msc 75/11/1. 338 Ibid 2 and 3. 339 Ibid anx 1. 340 Ibid 2. 341 Ibid 3. 342 Ibid 3.

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(i) render assistance ‘regardless of their nationality or status’343 and (ii) treat rescued persons on board with humanity, ‘without disregarding the problems that may be posed by their presence, their number or their attitude in relation to the onboard facilities’.344 These proposals were supported in the position paper on the review of safety measures and procedures for the treatment of persons rescued at sea submitted by to the msc by Germany.345 Norway presented similar amendments aimed at addressing and preventing future problems raised by the mv Tampa incident.346 It argued that there were a number of problems relating to the existing legal regime regulating the shipmaster’s duty to render assistance, in particular (i) imprecise formulations of the shipmaster’s duty to render assistance in the 1974 solas and the 1979 sar which were susceptible to different interpretations,347 and (ii) that existing imo conventions failed to clearly establish the obligations of the shipmaster post-rendering of assistance and that this lacuna may discourage him from saving lives at sea.348 In Norway’s view, the shipmaster’s obligation to render assistance should include (i) physically retrieving persons in distress from the water and bringing them on board his ship; (ii) providing rescued persons with medicines, food, and other supplies, possible within the capabilities of the ship; and (iii) delivering rescuees to a place of safety.349 Noteworthy is Norway’s conclusion that the inadequacies of the international sar regime would discourage the shipmaster from rendering assistance. These issues have been substantially dealt with by the 2004 Amendments to the 1974 solas and the 1979 sar, which have added clarity, although certain flaws remain.350 In this author’s view, such deficiencies should not be used by the shipmaster as an excuse to justify a lack of assistance, for he is bound to render assistance even under general international law.351 Similar to the French proposals discussed above, Norway also favoured considerable rights be given to the shipmaster to enter the territorial sea of a State

343 Ibid 2. 344 Ibid 4. 345 imo msc, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (11 March 2002) msc 75/11/2. 346 imo msc, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (12 March 2002) msc 75/2/2, para 6. 347 Ibid para 18. 348 Ibid para 21. 349 Ibid. 350 Ch 3, s 3.2.3.3. 351 Ibid s 3.3.

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and determine at which port rescuees disembark. In this respect, it suggested the following amendment to the 1974 solas and the 1979 sar: The master of a ship having retrieved persons in distress at sea has the duty and the right to deliver these persons to a place of safety with no undue delay. In such circumstances the master of the ship having retrieved persons in distress is entitled to decide as follows: 1. 2.

to deliver these persons to a suitable port or in the territorial waters being closest to the position where the persons were retrieved, or to deliver these persons to a suitable port or in the territorial waters being closest in case the ship continues its planned voyage towards its next port of call in accordance with the master’s decision.352

Furthermore, a corresponding duty on State parties to the 1974 solas and the 1979 sar was suggested: [to] receive the persons rescued with no undue delay, and … provide for their medical and other needs in a place of safety. If such a ship has proceeded to territorial waters not provided with a port suitable for the ship in question, the Party shall provide the assistance necessary for the people rescued to disembark safely and rapidly.353 The deliberations in the msc revealed that various States disputed the French and Norwegian proposals.354 This author argues that these proposals gave extensive rights to the shipmaster, most notably an absolute right to disembark persons at his port of choice. Whilst it was recognised that the shipmaster should have considerable discretion to protect the safety of his vessel, crew, and passengers, it is debatable whether this includes an immediate right of entry into a foreign port and disembarkation.355 Customary international law

352 imo msc, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (12 March 2002) msc 75/2/2, para 22. The Norwegian delegation proposed this amendment to both the 1974 solas and 1979 sar. 353 Ibid 23. 354 Eg, there was opposition from Australia, Spain, and the US which ultimately did not accept the French and Norwegian proposals; see imo msc, ‘Report of the Maritime Safety Committee on its Seventy-Fifth Session’ (29 May 2002) msc 75/24, para 11.53, as reported by Kenney and Tasikas (n 128) 166. 355 This point is discussed in detail in Ch 4, s 4.3.2.

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dictates that this may be possible only in cases in which the shipmaster of the rescuing vessel can prove that his own vessel is in distress.356 Also controversial were the French and Norwegian suggestions that coastal States be required to obey the shipmaster’s request and accept disembarkation of rescuees. As rightly observed by Kenney and Tasikas, said proposals may have been conducive to abuse and could have resulted in situations in which an ‘unscrupulous master could use these rights as a vehicle to create distress situations, then exercise the rights to land migrants seeking to enter countries illegally’.357 As a result of the disagreement amongst States, the wording and content of the French and Norwegian proposals were discussed again during later deliberations, specifically during the meeting of the Inter-Agency Group on the Treatment of Persons Rescued at Sea set up in July 2002358 and an informal sar meeting hosted by the Swedish Maritime Administration in September 2002.359 A significant outcome was the confirmation of the competences and responsibilities of different organisations in rescue operations and the need to separate sar from considerations of the legal status of rescued persons (for example, asylum seekers). In this respect, it was decided that imo responsibilities would be limited to sar aspects and the delivery of survivors to a place of safety regulated by the 1974 solas and the 1979 sar.360 At the same time, States supported by relevant organisations such as unhcr could consider issues relating to the status assessment and relocation of rescued persons.361 Proposals made by States at these meetings formed the basis for the 2004 Amendments to the 1974 solas and the 1979 sar, and the 2004 imo Guidelines on the Treatment of Persons Rescued at Sea.362

356 Ibid. 357 Kenney and Tasikas (n 128) 169; imo msc, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (9 October 2002) msc 76/22/10, para 10. 358 Hereafter referred to as 2002 Inter-Agency Group Meeting; see imo msc, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea – Note by the Secretariat’ (31 July 2002) msc 76/22/8. 359 Hereafter referred to as the 2002 Informal sar Meeting; see imo msc, ‘Outcome of Informal Meeting on “Safety Measures and Procedures for the Treatment of Persons Rescued at Sea”’ (27 September 2002) msc 76/22/11. 360 imo msc, ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea – Note by the Secretariat’ (31 July 2002) msc 76/22/8, para 32. 361 imo msc, ‘Outcome of Informal Meeting on “Safety Measures and Procedures for the Treatment of Persons Rescued at Sea”’ (27 September 2002) msc 76/22/11, para 37. 362 Jasmine Coppens and Eduard Somers, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’ (2010) 25 ijmcl 377, 384; Mallia, Migrant Smuggling (n 119) 128–129; see also Ch 3, s 3.4.

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3.2.3.3.b The Position of the Shipmaster in Rescue at Sea Operations On 20 May 2004, during its seventy-eighth session,363 the msc adopted two resolutions amending the 1974 solas364 and the 1979 sar.365 These amendments were largely aimed at addressing problems encountered by the shipmaster when assisting in imros. The 2004 Amendments incorporate some of the earlier proposals submitted by France and Norway. They reinforce the nondiscrimination principle that assistance should be rendered by the shipmaster irrespective of nationality or status.366 Furthermore, the shipmaster is obliged to treat humanely all rescued persons brought on board his ship.367 The 2004 Amendments also recognise the importance of the shipmaster’s professional judgment and discretion in assessing distress368 and provide that the interests of the shipowner,369 commercial or otherwise, should not influence the shipmaster’s decisions in such cases.370 The new para 1–1 inserted in the 1974 solas Annex Chapter v regulation 33 reads as follows: Contracting Governments shall coordinate and cooperate 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 363 During the same session, the msc also adopted the 2004 imo Guidelines on the Treatment of Persons Rescued at Sea; see Mallia, Migrant Smuggling (n 119) 132. 364 imo msc, ‘Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended’ (20 May 2004) Res msc.153 (78). 365 imo msc, ‘Adoption of Amendments to the International Convention on Maritime Search and Rescue, 1979, as amended’ (20 May 2004) Res msc.155 (78). 366 Ibid anx, para 3. 367 imo msc, ‘Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended’ (20 May 2004) Res msc.153 (78) anx, para 5; see also 2004 imo Guidelines on the Treatment of Persons Rescued at Sea, paras 5.1.1–5.1.2. For an analysis of the human rights considerations in the implementation of the shipmaster’s duty to render assistance, see Ch 5, s 5.2. 368 Ch 3, s 3.2.3.2.c. 369 Or charterer, company, or operator of the ship as defined in reg ix/1 of the 1974 solas or any other person. See imo msc, ‘Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended’ (20 May 2004) Res msc.153(78), para 7; see also 1974 solas, anx ch v, reg 34-1; see further Ch 4, s 4.2.1.1. 370 imo msc, ‘Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended’ (20 May 2004) Res msc.153(78), para 7; 1974 solas, anx ch v, reg 34-1. Scovazzi argues that these provisions were included to protect the shipmaster from personal liability in rescue operations; see Tullio Scovazzi, ‘The Particular Problems of Migrants and Asylum Seekers Arriving by Sea’ in Laura Westra, Satvinder Juss, and Tullio Scovazzi (eds), Towards a Refugee Oriented Right of Asylum (Routledge 2016) 196.

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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 that such coordination and cooperation 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 the 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. To harmonise the two conventions, a new para 3.1.9 was added to the 1979 sar Annex, Chapter 3, which mirrors the above provision. Moreover, a new para 4.8.5 was inserted after the existing para 4.8.4 of Chapter 4 of the Annex to the 1979 sar, which provides that in the case rescue is effected: [t]he 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. The 2004 Amendments present a departure from the French and Norwegian proposals, which gave considerable power to the shipmaster to determine the place for disembarkation of rescuees. The introduction of the 1979 sar Annex, Chapter 4, para 4.8.5, makes clear the shipmaster’s determination is to be made by the rcc of the sar State in whose srr the rescue occurred. This may be understandable considering that sar State’s responsibilities regarding disembarkation. However, this author is of the view that the relevant rcc should make this decision after consulting the shipmaster, who can provide a more accurate assessment of the situation on board his vessel. In fact, the duty of identifying the ‘most appropriate place’ indicates that this exercise should be conducted on a case-by-case basis in consultation with the shipmaster, who can provide information concerning, for example, the health conditions of rescuees, safety of the rescuing vessel, weather conditions and so forth.371 Therefore, according to the 1979 sar Annex, Chapter 4, para 4.8.5, once a distress incident occurs within a State’s srr, the rcc of that State is obliged to initiate and identify the most appropriate place for disembarkation. Nothing prohibits the sar State from proposing disembarkation in another State’s srr,

371 imo msc, ‘Guidelines on the Treatment of Persons Rescued at Sea’ (20 May 2004) Res msc.167(78), para 2.6, discussed further in Ch 3, s 3.4.

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unless the State proposed is not a place of safety.372 In such cases, the sar State in which the distress incident occurred would still be responsible for identifying a place for disembarkation. The raison d’être behind the 2004 Amendments appears to be the need to reinforce cooperation between States to support shipmasters in their efforts to render assistance.373 In this respect, all State parties, not solely the sar State where the distress situation occurs, are required to ensure that the shipmaster, after having rescued people, is not burdened with unnecessary deviations. In fact, the 2004 Amendments require ‘minimum further deviation from the ships’ intended voyage’; this is designed to protect the shipmaster, the shipowner, and third parties. This could entail State parties providing shipmasters with navigational assistance, supplies, and fuel to ensure expeditious return of the vessel to its original voyage. Arguably, this may also include arranging for the disembarkation of rescuees, although the first sentences of 1979 sar Annex, Chapter v, regulation 33-1-1, and 1979 sar Annex, Chapter 3, para 3.1.9, do not impose a primary obligation to do so. A stricter obligation falls on State parties responsible for the srr where the assistance is rendered. These States are obliged also to ensure that the rescuees assisted are delivered to a place of safety as soon as reasonably practicable.374 Therefore, even if prior to 2004 the necessity of disembarkation could only be implied from the definition of rescue in the 1979 sar discussed above,375 the 2004 Amendments have clarified that disembarkation to a place of safety is indeed part of the rescue obligation. This corresponds with the Preambles to the 2004 Amendments, which state that the purpose of the 2004 Amendments are ‘to ensure that in every case a place of safety is provided within a reasonable time’.376

372 For a discussion of the definition of a place of safety and its implications for the shipmaster’s rendering of assistance; see further Ch 3, ss 3.2.3.3.c, s 3.4.1.4, and Ch 5, s 5.3.3. 373 Ch 3, s 3.2.3.3. 374 See further Patricia Mallia, ‘Stowaways, Human Trafficking and Migrant Smuggling’ in David Joseph Attard (ed), The imli Manual on International Maritime Law Volume iii: Marine Environmental Law and Maritime Security Law (oup 2016) 509. 375 Ch 3, s 3.2.3.2.c. 376 imo Res msc.155(78), Preamble, para 8; imo Res msc.153(78), Preamble, para 8; imo msc, ‘Guidelines on the Treatment of Persons Rescued at Sea’ (20 May 2004) Res msc.167(78), appx containing comments on relevant international law, para 2, which provides that sar services ‘…include making arrangements for disembarkation of survivors from assisting ships’.

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3.2.3.3.c Disembarkation of Rescued Persons Although the 2004 Amendments may have clarified the responsibilities of certain States in a rescue operation, problematic issues remain regarding disembarkation.377 The concept of a place of safety is undefined in unclos, the 1974 solas, and the 1979 sar and remains a controversial issue amongst States,378 although some guidance is provided to the shipmaster by the 2004 imo Guidelines on the Treatment of Persons Rescued at Sea.379 While it is clear that the sar State’s obligations include the responsibility to coordinate all sar operations within its srr and to ensure that cooperation occurs so that persons rescued in its srr are disembarked at a place of safety within reasonable time, the extent of these obligations and the concomitant meaning of the phrase ‘primary responsibility’ in this context remain unsettled. It is possible that the duties imposed on the sar State under the 2004 Amendments do not necessarily include disembarkation of rescued persons into its own territory.380 Conversely, it could be argued that, even in the absence of an express provision, ‘primary responsibility’ implies that the obligation to allow disembarkation would arise if all meaningful efforts to provide a place of disembarkation have failed.381 This author argues that this ‘residual obligation’382 is supported by the wording of the 2004 Amendments, which require that the shipmaster, having rendered assistance, should be released of the responsibility of the rescued persons as soon as reasonably practicable.383 For the shipmaster’s duty to render assistance to be meaningful, it is suggested that there must be a residual obligation, which would only come into force after all efforts to find a place of safety have been exhausted. This may not be unreasonable, especially if there is no State (i) close to the site of rescue which can offer a place of safety or (ii) in the region willing to accept disembarkation. Furthermore, urgent cases may arise in which migrants are confined on unseaworthy vessels in perilous weather conditions, without sufficient food or water supplies or requiring urgent medical treatment.384 These 377 378 379 380 381

382 383 384

Barnes (n 119) 139–140; Gallagher and David (n 125) 460–461. Scovazzi (n 370) 194–195. See further Ch 3, s 3.4.1.4. Coppens and Somers (n 205) 387; Guilfoyle, ‘Part vii High Seas’ (n 88) 729; Gallagher and David (n 125) 456; Barnes (n 119) 142. Seline Trevisanut, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’ (2010) 25 ijmcl 523, 530; Silja Klepp, ‘A Double Blind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea’ (2011) 23 ijrl 538, 548. O’Brien (n 119) 724; Trevisanut (n 381) 530. Ch 3, s 3.2.3.3.b. See further Ch 1, ss 1.1 and 1.3.

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considerations should also play a role in compelling the sar State, in the ultimate analysis, to accept disembarkation of rescuees.385 Indeed, the Preamble to the 2004 Amendments386 and the 2004 imo Guidelines on the Treatment of Persons Rescued at Sea explain that 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 srr in which the survivors were recovered’.387 This point is made more strongly in the imo FALCOM’s ‘Principles Relating to Administrative Procedures for Disembarking Rescued Persons at Sea’.388 Principle 3 provides that: …if disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the Government responsible for the sar area should accept the disembarkation of the persons rescued in accordance with immigration laws and regulations of each Member State into a place of safety under its control in which the person rescued can have timely access to post rescue support. A review of State practice suggests that States, such as Italy consider primary responsibility under the 2004 Amendments to include a residual obligation of the sar State to allow disembarkation into its territory when all efforts to find a place of safety in other States have failed. It would appear that Malta tends to interpret the 2004 Amendments in the same manner as Italy but holds that this interpretation is not consistent with general international law, which places the obligation of disembarkation on the State with the closest safest port from the site of rescue,389 and therefore has not accepted the 2004­

385 386 387 388

Gallagher and David (n 125) 456. See also imo Res msc.155(78), Preamble, para 8; imo Res msc.153(78), Preamble, para 8. Ch 3, s 3.4. imo Facilitation Committee, ‘Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea’ (22 January 2009) fal 3/Circ.194 (2009 fal Circular). 389 Department of Information Malta (doim), ‘Another Amnesty International Report Riddled with Inaccuracies, Misinformation and Glaring Omissions’, Press Release (28 May 2010) accessed 5 October 2018; see also Klepp (n 381) and Den Heijer, Europe and Extraterritorial Migration Control (n 270) 250. This position was also reflected in Malta’s unsuccessful 2009 proposal before the imo’s Sub-committee on Flag State Implementation, which aimed to amend para 3.1.9 of ch 3 of the anx to the 1979 sar, and the 1974 solas, anx ch v, reg 33-1-1; see Sub-committee on Flag State Implementation, ‘Measures to Protect the Safety of Persons Rescued at Sea. Comments on document fsi 17/15/1. Submitted by Malta’ (27 February 2009) imo Doc. fsi 17/15/2, para 16.

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Amendments.390 It has also entered reservations concerning principle 3 of the 2009 fal Circular.391 Considering the vast size of Malta’s srr,392 it is often the case that although a rescue occurs within its srr, it may be much closer to a foreign port of safety than a Maltese port. In the case of irregular migration from northern Africa, through the central Mediterranean, the closest safe port is generally in Lampedusa.393 Consequently, Malta argues that it would make little humanitarian sense to delay assistance to distressed persons by bringing them to the port of the sar State, instead of a much closer port of safety. Nevertheless, Italy’s interpretation of the 2004 Amendments indicates that disembarkation of rescuees saved anywhere in Malta’s srr should ultimately be the responsibility of Malta. These types of disputes may result in disembarkation being refused, leaving the shipmaster stranded for long periods until an agreement is reached on a place of disembarkation, as was evidenced in the 2009 mv Pinar E case. On the 16 April 2009, Malta’s rcc coordinated a rescue operation involving 154 persons from two small boats picked up by the mv Pinar E, a Panamanian-registered cargo ship.394 The rescue occurred approximately 41 nm away from Lampedusa and 114 nm away from Malta.395 Malta claimed that vessel should disembark the rescued migrants in Lampedusa, arguing that it constituted the closest safe port to where the rescue occurred. Italy maintained that since the migrants were rescued in Malta’s srr, it was the latter’s responsibility to accept their disembarkation. This led to a lengthy stand-off between Italy and Malta.396 The dispute was resolved through the ­intervention

390 imo, ‘Status of imo Treaties – Comprehensive Information on the Status of Multilateral Conventions and Instruments in respect of which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions’ accessed 6 October 2019, 40 and 427; see also Trevisanut (n 381) 525. 391 imo Facilitation Committee, ‘Report of the Facilitation Committee on its Thirty-fifth Session’ (19 March 2009) fal 35/17, para 6.56 and anx 6. 392 Malta’s srr covers more than 250,000 square kilometres; see accessed 26 October 2018. 393 ai, ‘Between the Devil and the Deep Blue Sea – Europe Fails Refugees and Migrants in the Central Mediterranean’ eur 30/8906/2018 (ai 2018) (2018 ai Report) 20. 394 Parliament of Malta, ‘Statement by the Prime Minister, Hon Lawrence Gonzi mp, on the irregular immigrants taken on board the mv pinar-E off the coast of Lampedusa on 16 April 2009 – Sitting No 100 – 20.04.2009’ accessed 29 October 2018. 395 Barnes (n 119) 142. 396 Jasmine Coppens, ‘Search and Rescue of Migrants at Sea’ in Adam Weintrit (ed), Marine Navigation and Safety of Sea Transportation (crc Press 2013) 119.

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of the President of European Commission.397 Italy permitted the vessel to disembark in Sicily, four days after the initial rescue.398 The procrastination on the part of States in deciding on a place for disembarkation evidenced in the mv Pinar E and other cases discussed below,399 would seem to run contrary to the spirit of the text of the 2004 Amendments, which aimed to avoid such types of situations. 3.2.3.4 The 1989 Salvage Convention Prior to the late 1980s, salvors were often wary of rendering salvage in big marine casualties, because if they were unsuccessful in salvaging the ship and its cargo, they were not entitled to any remuneration, even if the intervention may have mitigated harm to the environment.400 This ‘no cure no pay’ principle was embodied in the 1910 Salvage Convention.401 To address these concerns, a revised salvage convention was adopted under the auspices of the imo at the 1989 International Conference on Salvage402 convened in London from 17 to 28 April 1989.403 A significant feature of the new Salvage Convention was an exception to the traditional ‘no cure no pay’ principle by allowing for the recovery of a salvage reward where efforts were made to prevent or minimise pollution.404 3.2.3.4.a The Shipmaster’s Duty to Render Assistance at Sea Similar to the 1910 Salvage Convention,405 the 1989 Salvage Convention provides for the 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.

397 Barnes (n 119) 142. 398 Ibid. 399 For a discussion of more recent cases concerning disputes between Malta and Italy over the location for the disembarkation of rescuees; see Sergio Carrera and Roberto Cortinovis, ‘Search and rescue, disembarkation and relocation arrangements in the Mediterranean, Sailing Away from Responsibility’ No 2019-10 ceps Paper in Liberty and Security (June 2019) 3–5. 400 Archie Bishop, ‘Law of Salvage’ in David Joseph Attard (ed), The imli Manual on International Maritime Law Volume ii: Shipping Law (oup 2016) 474–475. 401 1910 Salvage Convention, Art 2. 402 Hereafter referred to as the 1989 Salvage Conference. 403 imo, International Conference on Salvage (1989) Final Act of the Conference and Convention on Salvage (imo 1989), Forward. 404 1989 Salvage Convention, Art 14, discussed in Ch 3, s 3.2.3.4.b; see also Martin Davies, ‘Whatever Happened to the Salvage Convention’ (2008) 39 JMarL&Com 463, 479–481. 405 Ch 2, s 2.3.1.

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The States Parties shall adopt the measures necessary to enforce the duty set out in paragraph 1. The owner of the vessel shall incur no liability for a breach of the duty of the master under paragraph 1.406

The principles found in the above provision largely mirror those found in the 1910 Salvage Convention, Article 11.407 The only difference between the two provisions is that the 1989 Salvage Convention Article 10 also incorporates the obligation of States to adopt measures to enforce the duty, rather than having it in a separate Article as found in the 1910 Salvage Convention.408 Interestingly, despite its longstanding recognition, debates during the 1989 Salvage Conference reveal that certain States presented proposals aimed at either amending or excluding completely provisions dealing with the duty to render assistance. During the conference, the delegates examined Draft Article 7 on the duty to render assistance of a draft convention on salvage,409 which had been produced earlier by the imo’s leg.410 Saudi Arabia argued that an article regulating the duty to render assistance should not be accepted in the final convention considering that the draft convention being discussed strictly covered issues dealing with salvage.411 Saudi Arabia held that it would be preferable to delete Draft Article 7, considering that a similar article covering the duty to assist at sea was already included in both the 1974 solas and the 1979 sar.412 The majority of States disagreed with the proposal. France, for example, argued that: …the first duty of a master, before preserving the environment or salvaging property, is to lend assistance to any person in danger at sea. If we delete this essential duty to all salvors and also implying the duty of all masters despite the existence of solas. We are against this proposal therefore. ….413

406 407 408 409

1989 Salvage Convention, Art 10; see further Ch 2, s 2.3.1. Ch 2, s 2.3.1. 1910 Salvage Convention, Art 12. imo leg, ‘Report on the Work of the 58th Session’ Doc Leg 58/12, cited in Francesco Berlingieri, The Travaux Préparatoires of the Convention on Salvage 1989 (Comité Maritime International 2003) 274. 410 Ibid. 411 Berlingieri (n 409) 275. 412 Ch 3, ss 3.2.3.1 and 3.2.3.2. 413 Berlingieri (n 409) 276.

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During the discussions, Kuwait also argued that many shipowners do not look favourably on the shipmaster rendering assistance in cases where the operation does not or is unlikely to yield benefits.414 Furthermore, its delegation argued that salvage operations are often dangerous, and may even cause injury or losses to third parties.415 To encourage the shipmaster to render assistance, Kuwait proposed that Draft Article 7(2) be amended so that State parties also adopt necessary measures to protect the shipmaster from punitive action by the shipowners and liability from any party for loss suffered after fulfilling his duty.416 The proposal appeared to attract little reaction from the delegates.417 However, when put to vote, an overwhelming majority of the delegates argued against such inclusion.418 Cuba suggested deleting the wording of Draft Article 7(1), which provides that the shipmaster should ‘render assistance to any person in danger of being lost at sea’.419 It argued that the danger should not be restricted exclusively to being ‘lost at sea’; in fact, danger may manifest itself in many different forms, such as hypothermia.420 It pushed for a more general reference to anyone at risk or in danger at sea.421 Many States, including Zaire, the Democratic Republic of Yemen, Cote d’Ivore, and Malaysia, supported the proposal.422 The ussr, Sweden, and Finland disagreed with the deletion of the words ‘lost at sea’.423 They claimed that such an exclusion might result in an overly broad application of the convention, especially considering that this formula was inherited from the 1910 Salvage Convention and included in subsequent international instruments such as unclos, the 1974 solas, and the 1979 sar. Most delegates at the conference voted against the Cuban proposal,424 and Draft Article 7 was subsequently approved and incorporated as Article 10 of the 1989 Salvage Convention.425

414 Ibid 275. 415 Ibid. 416 Ibid. 417 Ibid. 418 Ibid 281. 419 Ibid 277. 420 Ibid. 421 Ibid. 422 Ibid. 423 Ibid 279–280. 424 Ibid 281. 425 The only apparent difference between Draft Arts 7 and 10 of the 1989 Salvage Convention was that the phrase ‘Contracting States’ in the former was removed and replaced with ‘State parties’ in the latter.

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The deliberations of the 1989 Salvage Conference show that the principles regulating the duty to render assistance under the 1989 Salvage Convention Article 10 are consistent with those found under unclos, the 1974 solas, and the 1979 sar. Like the 1974 solas Annex Chapter v regulation 33(1),426 the 1989 Salvage Convention Article 10 directly obliges the shipmaster to render assistance to any person in danger of being lost at sea. In accordance with unclos Article 98(1)(b) and the 1974 solas Chapter v regulation 33(1), the shipmaster’s duty is also limited in so far as he can render assistance without causing serious danger to his vessel or persons thereon. Like unclos Article 98(1),427 the 1989 Salvage Convention also squarely places the obligation to give effect to the duty to render assistance on the State. The fundamental difference between the legal framework regulating the duty under unclos, the 1974 solas, and the 1979 sar and that found in the 1989 Salvage Convention Article 10 is a reference to the responsibility of the shipowner. Under the 1989 Salvage Convention Article 10(3), if a person suffers damages because of the shipmaster’s failure to render assistance, he may not sue the shipowner for indemnification.428 Despite the specific provision on the duty to render assistance under the 1989 Salvage Convention Article 10, whether the duty would apply in cases where the shipmaster encounters migrants in distress at sea remains questionable considering the application of the convention provided in Article 2: ‘[t]he Convention shall apply whenever judicial or arbitral proceedings related to matters dealt with in this Convention are brought in a State Party’. It could be argued that the 1989 Salvage Convention comes into operation only if salvage proceedings are brought in a State party to the convention. Davies rightly points out that if no arbitration or lawsuit is brought, then according to Article 2, the 1989 Salvage Convention would be inapplicable.429 This strict interpretation of the convention would imply that in cases of shipmasters encountering distressed migrants (where it is unlikely legal proceedings would ensue) the provisions of the 1989 Salvage Convention would be inapplicable. On the other hand, it may be argued that irrespective of the scope of application of the 1989 Salvage Convention and whether any judicial or arbitration actions are brought in relation to an incident, the shipmaster is still duty bound to render ­assistance

426 427 428 429

Ch 3, s 3.2.3.1.b. Ibid s 3.2.2.3.a. Such waiver was also provided for in the 1910 Salvage Convention, Art 11; see Ch 2, s 2.3.1. Martin Davies, ‘Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea’ (2003) 12 PacRimL&PolyJ 109, 114.

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in such incidents under other conventions discussed above430 and under customary international law.431 3.2.3.4.b Salvage of Persons at Sea Article 10 of the 1989 Salvage Convention regulating the shipmaster’s duty to render assistance at sea, should be read in conjunction with Article 16 of the convention,432 which provides as follows: 1. 2.

No remuneration is due from persons whose lives are saved, but nothing in this article shall affect the provisions of national law on this subject. A salvor of human life, who has taken part in the services rendered on the occasion of the accident giving rise to salvage, is entitled to a fair share of the payment awarded to the salvor for salving the vessel or other property or preventing or minimizing damage to the environment.

The above provision appears to largely reflect Article 9 of the 1910 Salvage Convention.433 Article 16(1) of the 1989 Salvage Convention mirrors Article 9(1) of the 1910 Salvage Convention, while the 1989 Salvage Convention Article 16(2) restates the rule found in 1910 Salvage Convention Article 9(2). However, the original provisions found in the 1910 Salvage Convention needed to be adjusted considering the spirit of the new convention, which now provided the salvor with an opportunity to receive ‘special compensation’434 whenever there is a threat of damage to the environment. Accordingly, the 1989 Salvage Convention Article 16(2) was amended to ensure that a life salvor should also have a share of any compensation in cases of preventing or minimising damage to the environment.435 Apart from this addition, no other significant changes appear to have been made to the principles found in the 1910 Salvage Convention Article 9. A review of the deliberations of the 1989 Salvage Conference demonstrate several interesting ideas. For example, the International Salvage Union436 made an important proposal relating to the salvage of persons in the context of the 1989 Salvage Convention Draft Article 13, addressing factors which the Court should consider when fixing a salvage reward. In this respect, the isu 430 431 432 433 434 435 436

Ch 3, ss 3.2.2 and 3.2.3. Ibid s 3.3. Berlingieri (n 409) 424. Ch 2, s 2.3.1. 1989 Salvage Convention, Art 14. Berlingieri (n 409) 427. Hereafter referred to as the isu. The isu is a trade organisation that represents the interest of maritime salvors; see further accessed 5 November 2018.

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proposed that the skill and efforts of the salvors in salvaging the vessel, property, and life should be considered.437 This was included in the 1989 Salvage Convention Article 13, and its inclusion confirms that the saving of life at sea is material and can enhance the reward payable by the owners of the vessel or other property.438 Therefore, before examining how the 1989 Salvage Convention Article 16 may affect the shipmaster’s duty to render assistance under Article 11, it is useful to briefly elaborate on the criteria for assessing a salvage reward and identifying who is responsible for its payment under the 1989 Salvage Convention. The criteria relevant for assessing the salvage reward is regulated by the 1989 Salvage Convention Article 13, which includes traditional considerations such as the salvage value of the vessel or property439 and the degree of danger,440 as well as the skill and effort of the salvors in saving the life.441 The payment of the award must be made by all the vessel and other property interests,442 thus including both the ship and cargo owners. The value of the reward shall not exceed the salvage value of the vessel and other property.443 As discussed above,444 the 1989 Salvage Convention introduced a fundamental change which provides the salvor with an option to obtain ‘special compensation’ even in cases in which no vessel or other property has been salvaged but where he has attempted to prevent or minimise damage to the environment. This option can be implemented in two phases: (i) if the salvor has been involved in a salvage operation and has not earned a reward under Article 13 which is equivalent to his expenses incurred, he shall be entitled to ‘special compensation’ from the shipowner of that vessel equivalent to his expenses,445 and (ii) in cases in which the salvor secured environmental success by actually preventing or minimising harm to the environment, the court has a discretionary power to increase the award payable to the salvor under Article 14(1) by up to 30 per cent.446 The court has a further power to increase the salvor’s award by up to 100 per cent if it deems it fair and just to do so.447

437 Berlingieri (n 409) 302. 438 Bishop (n 400) 492. 439 1989 Salvage Convention, Art 13(1)(a). 440 Ibid Art 13(1)(d). 441 Ibid Art 13(1)(e). 442 Ibid Art 13(2). 443 Ibid Art 13(3). 444 Ch 3, s 3.2.3.4. 445 1989 Salvage Convention, Art 14(1). 446 Ibid Art 14(2). 447 Ibid.

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It is equally important to examine the ramifications of the 1989 Salvage Convention Article 16 for a shipmaster who renders assistance in accordance with Article 11 of the convention and subsequently saves lives at sea. The general rule under the 1989 Salvage Convention Article 16(1) is that remuneration should not be due from persons whose lives have been saved. While this is true, the convention also explicitly allows State parties the freedom to derogate from this principle under their national laws. Nevertheless, even if the shipmaster cannot claim remuneration from persons saved under the 1989 Salvage Convention Article 16(1), it may still be possible that he is entitled to some remuneration for the act of saving lives under Article 16(2). In this respect, several scenarios may be contemplated: i. There is a maritime incident wherein a ship and its crew find themselves in serious danger. A shipmaster of another vessel renders assistance and consequently saves the lives of those aboard the vessel, but an independent salvor saves the vessel or property on board from peril. In such cases the shipmaster may be entitled to a fair share of the payment awarded to the independent salvor of the vessel or other property. If the independent salvor does not earn a reward under the 1989 Salvage Convention Article 13 but protects the environment or minimises environmental damage, he may be entitled to ‘special compensation’, and consequently the shipmaster who saves lives may be entitled to a fair share of the ‘special compensation’ awarded to the former. ii. A maritime casualty arises and a shipmaster renders assistance, consequently saving lives on board a vessel in danger. On the same occasion, the shipmaster also saves the vessel or other property from peril. In such cases, the shipmaster (the salvor in this case) will only have a claim against the vessel and other property. However, the saving of life during this act would likely increase the amount of the award in accordance with the 1989 Salvage Convention Article 13(1)(g). If he has failed to earn an award under the 1989 Salvage Convention Article 13, he may still be entitled to ‘special compensation’ if he prevented or minimised damage to the environment. The shipmaster may undertake what is sometimes referred to as ‘pure life salvage’,448 that is, where he saves only lives from a vessel in danger, but there is no accompanying salvage operation of the same vessel or property. In such cases, the shipmaster cannot claim a reward for the salvage of lives. Nevertheless, as discussed in a subsequent section,449 some jurisdictions contemplate life salvage services being compensated through a State-managed fund. This is 448 Mitchell McInnes, ‘Life Rescue in Maritime Law’ (1994) 25 JMarL&Com 451, 451. 449 Ch 3, s 3.3.2.

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administered at the discretion of the relevant State authority, and it is used only in certain limited circumstances, for example, if life salvage services are rendered in waters under the State’s jurisdiction or life is saved from a vessel registered under its jurisdiction. There appears to be no similar fund under the 1989 Salvage Convention.450 The question now arises as to what extent, if at all, the 1989 Salvage Convention Article 16 is applicable in the context of a shipmaster who saves migrants from a vessel. Once again, the general rule under the 1989 Salvage Convention Article 16(1) would prevent the shipmaster from claiming remuneration from persons whose lives are saved, subject to any national law to the contrary.451 Even if claiming remuneration for life salvage from persons rescued was permitted under the laws of certain jurisdictions, it is unlikely that in such cases the shipmaster (in this case the salvor in question) would be able to make a claim for remuneration from irregular migrants, who are generally impoverished individuals. A further question arises about the applicability of the 1989 Salvage Convention Article 16(2) in the context of a shipmaster who has rendered assistance in an imro. As discussed above,452 while it may be theoretically possible for the shipmaster to claim some form of remuneration for life salvage in such cases, in practice this would be unlikely considering that the claim would need to be enforced against the shipowner or the owner of the property salvaged.453 Vessels used by migrants for irregular maritime journeys are generally small, inexpensive, unregistered rubber crafts owned by migrant smugglers. Furthermore, they are typically packed with people, leaving little room for any cargo on board.454 In the past, there have been cases where larger registered cargo vessels were used to transport migrants, generally on maritime routes between Turkey and Italy.455 A maritime incident involving such a type of vessel could have potentially given rise to a significant salvage claim, but enforcement still remains a problem considering that generally such vessels are put on auction by bankrupt shipping companies and later purchased by migrant smugglers.456 Another option for the shipmaster is to be compensated through the 450 Richard L Kilpatrick Jr, ‘The “Refugee Clause” for Commercial Shipping Contracts: Why Allocation of Rescue Costs is Critical During Periods of Mass Migration at Sea’ (2018) 46 GaJIntl&CompL 403, 411. 451 1989 Salvage Convention, Art 16(1). 452 See pages 88–91. 453 1989 Salvage Convention, Art 13(2). 454 Ch 1, ss 1.1 and 1.2. 455 Frontex, ‘Annual Risk Analysis 2015’ (Frontex 2015). 456 Jasmine Coleman, ‘Migrant Ghost Ships: Who Are the People Smugglers?’ bbc News (London, 9 July 2015).

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above-mentioned State administered fund if the salvage services are rendered in the waters under the jurisdiction of a State. Nevertheless, it does not appear that such funds have ever been used in the context of an imro.457 It is possible for a shipmaster to be remunerated for salvage of migrants’ lives if the latter are saved from a registered vessel. For example, the shipmaster of said vessel is requested to render assistance and saves a large group of migrants. Later, the same vessel is involved in an incident, such as a fire on board. If the shipmaster of a different vessel assists and saves the lives of the crew and migrants on board, whilst a different salvor salvages cargo or minimises harm to the environment and saves lives, then the rescuing shipmaster may be entitled to a fair share of the payment awarded to the salvor for salvaging the vessel or other property or preventing or minimising damage to the environment. If in the same scenario the shipmaster saves the lives of the crew and migrants and also salvages cargo, the saving of life may enhance the reward. A similar scenario could also arise if migrants have been smuggled on board a vessel in a container and subsequently found by the crew, which appears not to be an uncommon practice.458 3.3

The Duty to Render Assistance at Sea under Customary International Law

This section examines the duty to render assistance under customary international law. It commences by assessing the role of treaties in the creation of customary international law regulating the duty to render assistance. It then examines whether States are taking measures to ensure that the shipmaster undertakes his obligation to render assistance. In this respect, the practices of major ship registries and important maritime States are examined, as they are specially affected States; and cover 90 per cent of world’s tonnage.459 ­Therefore, 457 Kilpatrick (n 450) 411. 458 James Doward, ‘Tilbury Migrant Death: There Were Screams and Then Bangs of the Door’ The Guardian (London, 16 August 2014); ‘Five Illegal Migrants Found in a Container in Genoa’, The Medi Telegraph Shipping & Intermodal Transport (26 June 2018) ‘Five Illegal Migrants Found in a Container in Genoa’, The Medi Telegraph Shipping & Intermodal Transport (26 June 2018) accessed 7 ­ November 2018; ‘13 African Migrants Suffocate in Libya Shipping Container’ The Malta Independent (St.Julian’s, 23 February 2017); Alex Grove, ‘10 Migrants Found in Container by Police Docks after Humber Port Went Into Lockdown’ Hull Daily (Hull, 7 March 2019). 459 United Nations Conference on Trade and Development, ‘E-handbook of Statistics 2019, Merchant Fleet’ accessed 27 December 2019.

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the vast majority of shipmasters would fall under measures reviewed in the practices which cover the duty to render assistance. The Role of Treaties in the Creation of Customary International Law Regulating the Duty to Render Assistance at Sea Given the overwhelming influence of unclos, the 1974 solas, the 1979 sar, and the 1989 Salvage Convention in the formulation of the duty to render assistance at sea,460 it would be useful to examine the role of treaties in the formation and identification of customary international law. Although treaty provisions may not always codify rules of customary international law, they represent an expression of the will of States and may offer evidence of the existence and content of such rules.461 The International Court of Justice462 observed that under certain circumstances, treaty provisions may (i) codify a rule of customary international law, (ii) lead to crystallisation of a rule that may be emerging, or (iii) stimulate general practice accepted as law.463 Treaties may codify pre-existing rules of customary international law.464 Dinstein has aptly described this process: 3.3.1

…the framers of the treaty identify rules of customary international law existing at the commencement of the drafting of the codification treaty and give these rules expression in the form of jus scriptum.465

460 See Ch 3, ss 3.2.2, 3.2.3, and 3.3 respectively. 461 Mark Villiger, Customary International Law and Treaties (2nd edn, Kluwer Law International 1997) 132; Richard R Baxter, ‘Multilateral Treaties as Evidence of Customary ­International Law’ (1965) 41 byil 275, 275–278; Jonathan I Charney, ‘International Agreements and the Development of Customary International Law’ (1986) 61 WashLRev 971, 990; Hugh Thirlway, The Sources of International Law (2nd edn, oup 2019) 82–84. 462 Hereafter referred to as the icj. 463 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Germany/Netherlands), Judgment [1969] icj Rep 3 (North Sea Continental Shelf Cases), para 71; ilc, ‘Draft conclusions on identification of customary international law’ (2018) ii (2) ybilc (2018 Draft Conclusions on cil) 3, Draft Conclusion 11 in ilc, ‘Draft conclusions on identification of customary international law, with commentaries’ (2018) ii (2) ybilc (2018 Draft Conclusions on cil with commentaries) 143–146, paras 1–8. 464 North Sea Continental Shelf Cases, para 81; Draft Conclusion 11(1)(a) in 2018 Draft Conclusions on cil 3, see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment, Merits [2015] icj Rep 3 [87], where the icj held that the Genocide Convention ‘enshrines principles that also form part of customary international law’; see further Villiger (n 461) 151–514. 465 Yoram Dinstein, ‘The Interaction Between Customary International Law and Treaties’ (2006) 322 Recueil de Cours 243, 357.

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The treaty itself may claim to be codifying the rules of customary international law, as is declared in the Preamble of the hsc.466 Sir Michael Wood argues that the travaux préparatoires of specific treaty provisions may be helpful to indicate to what extent, if at all, parties to the treaty consider the provision to be declaratory of existing international law.467 He also suggests that examining practice outside of the treaty in question, such as that of non-parties, may also be relevant.468 In some cases a written text which stimulates State practice, accompanied by opinio juris, creates customary international law.469 A treaty alone cannot be considered as conclusive evidence of rules of customary international law; treaty rules must attract general support in State practice together with their acceptance as law.470 Furthermore, it is required that there be extensive and representative participation in the State practice, which includes States whose interests are specially affected.471 State practice must also be uniform in the support of a new rule of customary international law in a period since the treaty in question was adopted.472 This principle is confirmed in other icj

466 International Law Association (ila), Committee on Formation of Customary (General) International Law, ‘Final Report of the Committee – Statement of Principles Applicable to the Formation of General Customary Law’ (69th conference, London, 2000) 43; Draft Conclusion 11(1)(a) in 2018 Draft Conclusions on cil 3. 467 ilc, ‘Third Report on Identification of Customary International Law by Michael Wood, Special Rapporteur’ (4 May–5 June, 6 July–7 August 2015) UN Doc A/CN.4/682 (ilc 3rd Report on cil), para 37; Commentary to Draft Conclusion 11 in 2018 Draft Conclusions on cil with commentaries 144–145, para 5; see also Michael Akehurst, ‘Custom as a Source of International Law’ (1977) 47 byil 1, 45. 468 ilc 3rd Report on cil 22, para 37; see also Louis B Sohn, ‘Unratified Treaties as a Source of Customary International Law’, in Adriaan Bos and Hugo Siblesz (eds), Realism in LawMaking: Essays in International Law in Honour of Willem Riphagen (Martinus Nijhoff Publishers 1986) 231, 237. 469 Case concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) Merits, Judgment [1985] icj Rep 13, para 27; Akehurst (n 467) 31–42; Olufemi Elias, ‘The Nature of the Subjective Element in Customary International Law’ (1995) 44 iclq 501, 501–520. 470 North Sea Continental Shelf Cases, para 77; Draft Conclusion 11(1)(c); see Commentary to Draft Conclusion 11 in 2018 Draft Conclusions on cil with commentaries 144, para 4. 471 Draft Conclusions 8 and 9 in 2018 Draft Conclusions on cil 3, Commentary to Draft Conclusion 8 in 2018 Draft Conclusions on cil with commentaries 136, paras 3–4. 472 North Sea Continental Shelf Cases, para 74; see also Fisheries Case (United Kingdom v Norway) Judgment [1951] icj Rep 116, 27, where the icj referred to the criteria of ‘constant and sufficiently long practice’; see also Commentary to Draft Conclusion 8 in 2018 Draft Conclusions on cil with commentaries 136, para 2.

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j­udgments, such as the Nicaragua Case,473 where the Court also requires that State practice should be widespread and consistent.474 The following elements of the unclos formulation of the shipmaster’s duty to render assistance can be considered part of customary international law: (i) an obligation on the flag State to ensure that shipmasters provide assistance to persons in distress; (ii) the shipmaster’s duty to proceed with all possible speed to the assistance of persons in distress at sea, in so far as he can do so without causing serious danger to his ship, crew, or passengers; and (iii) in case of collisions, an obligation of the shipmasters of colliding vessels to render assistance to each other and in so far as possible exchange particulars to one another. As seen above, a review of the ilc deliberations in preparing Draft Article 12 on the duty to render assistance in the hsc475 suggests that the Commission felt that, based on the general practice in existence at the time,476 the duty to render assistance provision ‘states existing international law’.477 As seen above, the ilc considered that the relevant provisions in treaties such as the 1910 Salvage Convention,478 the 1910 Collisions Convention,479 and the 1948 solas480 reflected a rule of customary international law on the duty to render assistance. This view is supported by the hsc Preamble, in which State parties affirmed their desire ‘to codify the rules of international law relating to [the] high seas’.481 Furthermore, at unclos iii, when discussing the duty to render assistance at sea, the drafters of the convention relied on Article 12 of the hsc in formulating unclos Article 98.482 This consistent formulation of the duty serves to support its status as a rule of customary international law; supporting this is the 168 unclos State parties 473 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgment [1986] icj Rep 14 (Nicaragua Case). 474 Nicaragua Case, para 186; Commentary to Draft Conclusion 8 in 2018 Draft Conclusions on cil with commentaries 136, para 3. 475 Ch 3, s 3.2.1.3. 476 Such as the 1910 Salvage Convention, the 1910 Collisions Convention, and the 1948 solas. 477 Mark Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes’ (2002) 14 ijrl 329, 333–334; Raul (Pete) Pedrozo, ‘Duty to Render Assistance to Mariners in Distress During Armed Conflict at Sea: A U.S. Perspective’ (2018) 94 IntLS 102, 106. 478 Ch 2, s 2.3.1. 479 Ibid s 2.3.2. 480 Ch 3, s 3.2.1.3. 481 hsc, Preamble. 482 Ch 3, s 3.2.2.3.a.

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adhering to Article 98.483 As noted by the ilc in its commentary to Draft Conclusion 11 on identification of customary international law: [t]he number of parties to a treaty may be an important factor in determining whether particular rules set forth therein reflect customary international law; treaties that have obtained near-universal acceptance may be seen as particularly indicative in this respect.484 However, it also noted that ‘…the attitude of States not party to a widely ratified treaty, both at the time of its conclusion and subsequently, will also be of relevance’.485 Therefore, it is significant that a major maritime State like the US, which is not a party to unclos, accepts that the rule as formulated in ­Article 98486 reflects customary international law. The unclos model regulating the duty to render assistance is also supported by similar rules found in other imo Conventions such as the 1974 solas, the 1979 sar, and the 1989 Salvage Convention, which also enjoy widespread and general State support.487 State Measures to Enforce the Duty to Render Assistance at Sea in State Practice This section first reviews the practice of specially affected States, including (i) major registries which have a large percentage of the world’s tonnage, such as the Bahamas, China, HK, Greece, Japan, Liberia, Malta, the Marshall Islands,488 Panama, and Singapore,489 and (ii) important maritime States such as Italy, the UK, and the US. All of these States, except for the US, adhere to 3.3.2

483 As of December 2019; see Division for Ocean Affairs and the Law of the Sea, ‘Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements’ accessed 1 December 2019. 484 Commentary to Draft Conclusion 11 in 2018 Draft Conclusions on cil with commentaries 143–144, para 3. 485 Ibid. 486 Ch 3, s 3.3.2. 487 As of December 2019, the 1974 solas has 165 State parties and the 1979 sar has 113 State parties, while 71 States have adhered to the 1989 Salvage Convention; see imo, ‘Status of Conventions’ accessed 3 December 2019. 488 Hereafter referred to as MI. 489 See United Nations Conference on Trade and Development, ‘Review of Maritime Transport 2019’ accessed 1 December 2019, 40.

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unclos.490 Moreover, all the aforementioned States are parties to the 1974 solas,491 while China, HK, Italy, Greece, Japan, Liberia, Malta, Panama, Singapore, the UK, and the US are also parties to the 1979 sar.492 Furthermore, all the States mentioned, except the Bahamas, Japan, Malta, Panama, and Singapore are parties to the 1989 Salvage Convention.493 The purpose of this review is to establish to what extent the shipmaster’s duty to render assistance is being enforced in State practice. Under the Greek Code of Public Maritime Law,494 the shipmaster is obliged to provide all possible assistance to vessels in distress, insofar as such act does not put at risk the safety of his ship or life.495 Failure to provide assistance shall be punishable by imprisonment and a fine.496 In a collision, the shipmasters of the colliding vessels are to render assistance to each other, unless such act may cause serious danger to their ships or passengers on board.497 If a shipmaster neglects to provide assistance or departs from the distress scene before providing such assistance, he shall be liable for punishment by imprisonment and a fine.498 Article 14 of the Japan Mariners Law499 stipulates that whenever it has come to the knowledge of the shipmaster that another vessel is in distress, he should use all possible means necessary to save human life on board that vessel.500 This is qualified only in cases where there is an imminent danger to the vessel under his command, or in a case provided by the Ordinance of the Ministry of Land, Infrastructure, Transport and Tourism.501 If the shipmaster violates Article 14, he shall be liable to imprisonment or a fine.502 In the case of a collision, each shipmaster shall use every possible means necessary to save the 490 See United Nations Treaty Collection accessed 3 December 2019. 491 See imo, ‘Ratification by State’ accessed 3 December 2019. 492 Ibid. 493 Ibid. 494 Legislative Decree 187/1973 (gcpml). 495 Ibid art 120. 496 Ibid art 227. 497 Ibid art 224. 498 Ibid. 499 Law No 100 of 1 Sep 1947, last amended by Act No 45 of 2 June 2017 (jml). 500 Ibid ch ii, art 14. 501 Ibid; see also art 12, which provides that ‘[a] master, when there is imminent danger to his/her vessel, shall exhaust every means necessary to save human life, the vessel and the cargo’. 502 jml, ch xiv, art 125(1).

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other vessel and human life, and give his ship’s details to the shipmaster of the other vessel, except where there is imminent danger to the vessel under his ­command.503 The shipmaster’s failure to render assistance in a collision is also subject to imprisonment or a fine.504 Under the Italian Code of Navigation,505 the shipmaster of a vessel who fails to assist or who does not attempt to assist in those cases in which he is obliged to do so under the Code is punishable with imprisonment.506 In a collision, the shipmasters of vessels involved are obliged to render assistance to the other, provided that this does not cause serious danger for his ship and people. The shipmaster is also obliged, as far as possible, to give the shipmaster of the other ship the necessary information to identify his own ship.507 According to the Maritime Code of the People’s Republic of China,508 every shipmaster is bound, insofar as he can do so without serious danger to his ship and persons on board, to render assistance to any person in danger of being lost at sea.509 In a collision, the shipmaster of each vessel is bound, insofar as he can do so without serious danger to his ship and persons on board, to render assistance to the other ship and persons on board.510 Furthermore, the shipmasters involved are bound to make known to the other details of their ships.511 Under the cmc, salvors may not demand remuneration from those they have saved,512 but the skill and efforts of the salvors in salvaging the ship, other property, and life should be considered when fixing a salvage reward.513 Additionally, life salvors are entitled to a fair share of the payment awarded to the salvor for salvaging the ship and other property or for preventing or minimising the pollution damage to the environment.514 Under US law, the shipmaster of a US-registered vessel shall render assistance to any individual found at sea in danger of being lost, so far as the shipmaster can do so without causing serious danger to his vessel or the individuals 503 504 505 506 507 508

Ibid ch ii, art 13. Ibid ch xiv, art 124. Legislative Decree 16 October 2017 No 148 (Italian Code of Navigation). Ibid pt iii, bk i, title ii, ch vii, art 1158. Ibid pt i, bk iii, title iii, art 485. (Adopted at the 28th Meeting of the Standing Committee of the Seventh National People’s Congress on November 7, 1992 and promulgated by Order No 64 of the President of the People’s Republic of China on November 7, 1992) (cmc). 509 Ibid ch ix, art 174. 510 Ibid ch viii, art 166. 511 Ibid. 512 Ibid ch ix, art 185. 513 Ibid art 180(5). 514 Ibid art 180(4).

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on board.515 A shipmaster who violates this obligation shall be fined, imprisoned, or both.516 Furthermore, provision is made for the shipmaster in the case of marine casualties,517 which include collisions.518 The shipmaster in charge of a vessel involved in marine casualty shall (i) render the necessary assistance to each individual affected, so far as this is without serious danger to the shipmaster’s life or life on board,519 and (ii) give the shipmaster’s details and those of his vessel to the shipmaster of any other vessel involved in the casualty, to any individual injured, and to the owner of any property damaged.520 A shipmaster who fails to do so shall be fined or imprisoned.521 Ships involved in marine casualties may be held by the government as security for payment of the fine.522 Moreover, a salvor of human life who gave aid following an accident giving rise to salvage is entitled to a fair share of the payment awarded to the salvor for salvaging the vessel or other property or preventing or minimising damage to the environment.523 The Malta Merchant Shipping Act524 imposes a general duty on the shipmaster of a Maltese-registered vessel to, as far as he can do so without serious danger to his own vessel or life, render assistance to every person who is found at sea in danger of being lost, even if that person is a citizen of a State at war with Malta.525 A shipmaster who fails his duty shall be liable to imprisonment and a fine or both.526 Under the mmsa, the shipmaster has more detailed obligations regarding the rendering of assistance, reflecting those found in the 1974 solas.527 Article 305(1) obliges the shipmaster, upon receiving a distress signal from any source, to proceed with all possible speed to the assistance of the persons in distress, unless he is unable or in the special circumstances of the case, considers it unreasonable or unnecessary to do so.528 In the case 515 46 usc § 2304 (2006) (a)(1). This obligation does not apply to a vessel of war or a vessel owned by the US government appropriated only to a public service; see 46 usc § 2304 (a)(2). 516 46 usc § 2304(b) (2006). 517 46 usc § 2303. 518 46 usc § 4.03-1(b)(2)(v). 519 46 usc § 2303(a)(1). 520 46 usc § 2303(a)(2). 521 46 usc § 2303(b). 522 46 usc § 2303(c). 523 46 usc § 80107(a). This obligation does not apply to a vessel of war or a vessel owned by the US government appropriated only to a public service; see 46 usc § 801074 (d). 524 Chapter 234 of the Laws of Malta (mmsa). 525 Ibid pt v, art 306(1). 526 Ibid. 527 Ch 3, s 3.2.3.1.b. 528 mmsa, pt v, art 305(1).

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of a ship in distress that has requisitioned a Maltese ship, the shipmaster is required to comply with the requisition by proceeding with all speed to the assistance of persons in distress.529 He is, however, released from his obligations when (i) he is informed that another ship is complying with the requisition or (ii) he is informed that assistance is no longer required.530 Liability for the shipmaster who fails to comply with his duty to render assistance obligations under Article 305 may result in imprisonment, a fine, or both.531 If the shipmaster considers it unreasonable or unnecessary to assist, then he shall report in the official logbook his reasons for failing to assist.532 If he does not do so, he shall be liable to a fine.533 Furthermore, the shipmaster shall enter or cause to be entered in the official logbook every signal of distress or message that a vessel or person is in distress.534 mmsa Article 295(1) requires that the shipmasters of the colliding vessels, as far as they can do so without danger to their own vessels and lives, render assistance to each other.535 Each shipmaster is obliged to stay by the other vessel until there is no need of further assistance.536 The shipmaster is also to give the shipmaster of the other vessel the details and destination of his vessel.537 If the shipmaster fails without reasonable cause to offer assistance in such cases he shall be liable to imprisonment and a fine.538 Furthermore, if the shipmaster is a certified officer, any inquiry into his conduct may be launched and his certificate cancelled or suspended.539 The mmsa provides, in respect of services rendered wholly or in part within Maltese waters in the saving of life from any ship, or elsewhere in saving life from any Maltese ship, that there shall be payable to the salvor by the ship, cargo, or apparel owner a reasonable amount of salvage, limited to the amount of property saved.540 In such cases, life salvage shall be payable in priority to all other salvage claims.541 In cases where the ship, cargo, and apparel are destroyed or the value thereof insufficient to cover the actual expenses paid, the 529 Ibid art 305(2). 530 Ibid art 305(4). 531 Ibid art 305(5). 532 Ibid art 305(6). 533 Ibid. 534 Ibid art 305(7). 535 Ibid art 295(1). 536 Ibid art 295(1)(a). 537 Ibid art 295(1)(b). 538 Ibid art 295(2). 539 Ibid. 540 Ibid pt viii, art 342(1). 541 Ibid art 342(2).

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minister has the discretion to award the salvor an amount from a State Consolidated Fund.542 Under the Singapore Maritime Conventions Act543 there exists a general duty of the shipmaster to, so far as he can do so without serious danger to his own ship or life, render assistance to every person, even if such person be a subject of a foreign State at war with Singapore, who is found at sea in danger of being lost. If he fails to do so, he shall be guilty of an offence.544 The shipmaster’s duties to render assistance, as reflected in the 1974 solas, are also provided for under the Singapore Merchant Shipping (Safety Convention) Regulations:545 if the shipmaster of a Singaporean vessel is in a position to be able to provide assistance on receiving information from any source that persons are in distress, he is duty bound to proceed with all speed to their assistance.546 If the shipmaster is unable to proceed to the assistance of persons in distress, he must enter in the official logbook the reason for failing to proceed to the assistance of such persons.547 The shipmaster of a Singaporean vessel may be requisitioned by a vessel in distress and an sar service to provide assistance. The shipmaster of a vessel requisitioned must comply with the requisition by continuing to proceed will all speed to provide assistance.548 The shipmaster may be released from his obligations to provide assistance on being informed that assistance is no longer necessary.549 In line with obligations imposed under the 2004 Amendments to the 1974 solas discussed above,550 the shipmaster of a Singaporean vessel who has rendered assistance and embarked persons in distress is required to treat them with humanity, within the limitations of the ship.551 The Singapore Merchant Shipping Act552 also provides that the shipmasters of colliding vessels are duty bound, insofar as they can do so without serious danger to life, each to stand by the other vessel until he has ascertained that it needs no further assistance.553 Shipmasters of all ships involved in a collision should exchange information 542 Ibid art 342(3). 543 (Cap IA3, Rev Ed 2004) (smca). 544 Ibid pt ii, s 6(1). 545 (Cap 179, Rev Ed 1999) s 100 (sssr). 546 Ibid pt c, ch v, reg 33(a). 547 Ibid. 548 Ibid reg 33(b). 549 Ibid reg 33(d). 550 Ch 3, s 3.2.3.3. 551 sssr, pt c, ch v, reg 33(f). 552 (Cap 179, Rev Ed 1995) (smsa). 553 Ibid ch 8, pt v, art 106 (1)(a).

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about their ships.554 If a shipmaster fails to, without reasonable cause, provide assistance in the case of collisions, he shall be guilty of an offence and shall be liable on conviction to a fine.555 If he is a certified officer, an inquiry may be held into his conduct, and his certificate may be cancelled or suspended.556 Similar to the mmsa, the smsa provides, for services rendered wholly or in part within Singapore, in the saving of life from any ship, or elsewhere in saving life from any Singaporean ship, there shall be payable to the salvor by ship, cargo, or apparel owner a reasonable amount of salvage.557 In such cases salvage in respect of the preservation of life, when payable by the shipowners, shall be payable in priority to all other salvage claims.558 In cases where the ship, cargo, and apparel are destroyed or the value of thereof is insufficient to cover the actual expenses paid, the minister has the discretion to pay the amount of salvage in respect of the preservation of life, out of a consolidated fund.559 The UK Merchant Shipping (Safety of Navigation) Regulations,560 implement the shipmaster’s obligations to render assistance under the 1974 solas Annex Chapter v regulation 33(1) and (2),561 which have been discussed above.562 A shipmaster shall be released from the duty imposed in paragraph 1 of regulation 33 in the circumstances set out in paragraph 3 of the regulation, and from the duty imposed in regulation 33 paragraph 1 or 2 (as the case may be) in the circumstances set out in paragraph.563 A shipmaster who contravenes his duties to render assistance shall be punishable on summary conviction by a fine and on conviction on indictment by imprisonment or both.564 Under the UK Merchant Shipping Act,565 in a collision, the shipmaster of each vessel is obliged, insofar as he can do so without danger to his own ship, crew, and passengers (if any), to render to the other ship, its shipmaster, crew, and passengers (if any) such assistance as may be practicable and may necessary to save them from any danger caused by the collision, and to stay by the 554 Ibid art 106 (1)(b). 555 Ibid. 556 Ibid art 106(2). 557 Ibid pt ix, s 166(1). 558 Ibid s 166(2). 559 Ibid s 166(3). 560 2002 (uksnr). 561 Ibid s 5. 562 Ch 3, ss 3.2.3.1.b and 3.2.3.3.a. 563 uksnr, Sch 3, s 12(3). 564 Ibid sch 4, s 18. 565 1995, Ch 21 (ukmsa).

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other ship until he has ascertained that it has no need of further assistance.566 The shipmaster is also obliged to give the master of the other ship the name of his own ship and also the names of the ports from which it comes and to which it is bound.567 The shipmaster’s failure to render assistance in a collision without reasonable excuse, may result in, (i) on summary conviction, a fine or imprisonment for a term not exceeding six months, or both,568 and, (ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years, or both.569 Following a collision, the shipmaster is also required to give to the shipmaster of the other ship the name of his own ship and also the names of the ports from which it comes and to which it is bound.570 The shipmaster’s failure to do may result in, (i) on summary conviction, a fine not exceeding the statutory maximum,571 and, (ii) on conviction on indictment, a fine.572 In either case, if the shipmaster is a certified officer, an inquiry into his conduct may be held and his certificate cancelled or suspended.573 It should also be noted that under the ukmsa, the 1989 Salvage Convention has force of law.574 If the shipmaster of a UK-registered vessel does not abide by the duty imposed under the 1989 Salvage Convention Article 10(1), which requires the shipmaster to render assistance, insofar as he can do so without serious danger to his vessel and persons onboard, he shall liable for, (i) on summary conviction, imprisonment for a term not exceeding six months, or a fine not exceeding the statute maximum, or both,575 and, (ii) on conviction on indictment, imprisonment for a term not exceeding two years, or a fine, or both.576 Under the ukmsa, salvors of human life may not demand remuneration from those whose lives are saved,577 but the skill and efforts of the salvors in salvaging the ship, other property, and life should be considered when fixing a salvage reward.578 Furthermore, salvors of human life are entitled to a fair share of the payment awarded to the salvor for salvaging the ship or other property, or for preventing or minimising pollution damage to the 566 Ibid pt iv, s 92(1)(a). 567 Ibid s 92(1)(b). 568 Ibid s 92(4)(a)(i). 569 Ibid s 92(4)(a)(ii). 570 Ibid s 94(b). 571 Ibid s 94(b)(i). 572 Ibid s 94(b)(ii). 573 Ibid. 574 Ibid pt ix, s 224. The exceptions to this general rule are found in sch 11, pt ii, s (2). 575 ukmsa, sch 11, pt ii, s 3(1)(a). 576 Ibid s 3(1)(b). 577 Ibid sch 11, pt 1, art 16(1). 578 Ibid art 13(1)(e).

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­environment.579 The Act also contemplates recourse for life salvage payment where services are rendered wholly or in part in UK waters in saving life from a vessel of any nationality or elsewhere in saving life from any UK ship.580 In such cases, if either the vessel is destroyed581 or the sum to which the salvor is entitled to is less than a reasonable amount for the services rendered in saving life,582 the Secretary of State may, if he thinks fit, pay to the salvor such sum or, as the case may be, such additional sum as he thinks fit in respect of the services rendered for saving life.583 The HK Merchant Shipping (Safety) Ordinance584 incorporates similar duties for the shipmaster in the rendering of assistance found under the mmsa,585 sssr,586 and the uksnr.587 Reflecting rules found in the 1974 solas, the Ordinance requires that the shipmaster of an HK vessel, on receiving a signal of distress or information from any source that a vessel or aircraft is in distress, shall proceed with all speed to the assistance of the persons in distress, informing them if possible that he is doing so, unless he is unable or in the special circumstances of the case considers it unreasonable or unnecessary.588 The shipmaster of an HK vessel may also be requisitioned by the shipmaster of a vessel in distress to assist. In such cases it shall be the duty of the requisitioned vessel’s shipmaster to comply with the requisition by continuing to proceed with all speed to the assistance of persons in distress.589 The shipmaster may be released from his obligation to assist in cases where he is informed that the shipmaster of a vessel in distress has requisitioned other ships who have compiled with the requisition request590 or he is informed by the persons in distress or the shipmaster of any ship that has reached the persons in distress that assistance is no longer required.591 If a shipmaster fails to assist, he commits an offence and is liable for a fine.592 If the shipmaster of a HK vessel considers it unreasonable or unnecessary to render assistance, he must enter a statement 579 580 581 582 583 584 585 586 587 588 589 590 591 592

Ibid art 16(2). Ibid s 5(1)(a). Ibid s 5(1)(b)(i). Ibid s 5(1)(b)(ii). Ibid s 5(2). (Cap 369, ln 366 of 1981) (HK Shipping Safety Ordinance). See pages 100–101. See pages 101–102. See pages 103–104. HK Shipping Safety Ordinance, pt vii, s 84(1). Ibid s 84(2). Ibid s 84(3). Ibid s 84(4). Ibid s 84(5).

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in the official logbook, and if there is no official logbook, he must ensure that other record of his reasons for failing to render assistance is kept,593 as well as every signal of distress or message that a vessel or person is in distress.594 Failure of the shipmaster to abide by such obligations results in an offence and liability for a fine.595 In a collision, the HK Shipping Safety Ordinance provides that where either of the colliding ships is registered in HK, it shall be the duty of the shipmaster of that vessel to render, insofar as he can do so without serious danger to his own ship, crew, and passengers, to the shipmaster, crew, and passengers of the other vessel assistance as may be practicable and may be necessary to save them from any danger caused by the collision and to stay by the other ship until he has ascertained that there is no need of further assistance.596 He is also required to give the shipmaster of the colliding ship (i) the name of his own ship, (ii) the name of the port to which it belongs, and (iii) the names of the ports from which it comes and to which it is bound.597 If the shipmaster fails without reasonable cause to abide by these regulations, he shall commit an offence and is liable for a fine.598 In such cases, there may also be an inquiry into his conduct.599 The 1989 Salvage Convention has force of law in HK, through the HK Merchant Shipping (Collision Damage and Liability and Salvage) Ordinance.600 If the shipmaster of a HK vessel fails to comply with the duty imposed under the 1989 Salvage Convention Article 10(1), he commits an offence and shall be liable to imprisonment or a fine.601 No remuneration is due from persons whose lives are saved,602 but the skill and efforts of the salvors in salvaging the ship, other property, and life should be considered when fixing a salvage reward.603 Furthermore, a salvor of human life who has taken part in the services rendered on the occasion of the accident giving rise to salvage is entitled to a fair

593 594 595 596 597 598 599 600

Ibid s 84(6). Ibid s 84(7). Ibid s 84(8). Ibid s 78(1)(a). Ibid s 78(1)(b). Ibid s 78(2)(a). Ibid s 78(2)(b). (Cap 508, ln 322 of 1997) (HK Collision and Salvage Ordinance) pt iii, s 9; see sch 1, pt ii for cases where the 1989 Salvage Convention does not apply. 601 HK Collision and Salvage Ordinance, sch 1, pt ii, s 3(1)(b). 602 Ibid sch 1, pt i, art 16(1). 603 Ibid art 13(e).

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share of the payment awarded to the salvor for salvaging the vessel or other property or preventing or minimising damage to the environment.604 Under Liberian and mi law,605 the shipmaster has a duty to render assistance in the saving of life at sea or property at sea. In a collision between two vessels, the shipmaster is bound, insofar as he can do so without serious danger to his own vessel, crew, and passengers (if any), to stand by the other vessel until he has ascertained that it needs no further assistance.606 He is to render assistance to the other vessel, its shipmaster, crew, and passengers (if any) as may be practicable and necessary to save them from any danger caused by the collision.607 The shipmaster is also to report to the shipmaster of the colliding vessel details about his own vessel.608 If he fails to do so without reasonable cause, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default.609 Any shipmaster who fails to provide assistance in the case of a collision shall be subject to a fine, imprisonment, or both.610 Furthermore, salvors of human life or cargo who have taken part in the services rendered in connection with the incident giving rise to salvage are entitled to a fair share of the remuneration awarded to the salvors of the vessel, its cargo, and accessories.611 Under Panamanian law,612 in cases where a ship is involved in a maritime incident, the shipmaster and his crew shall make best efforts to undertake a rescue.613 The shipmaster’s duty to render assistance provides that every shipmaster of a Panamanian vessel is bound, so far as he can do so without serious danger to his vessel, crew, or passengers, to render assistance to any person, even to an enemy, in danger of being lost at sea.614 It further provides that in the case of a dispute arising from the shipmaster’s failure to assist, the shipowner incurs no liability.615 Under the plmc, no remuneration is due from 604 Ibid art 16(2). 605 Liberian Maritime Law, Title 21 of the Liberian Code of Laws of 1956 (rlm-107 Series 2018) ch 10, s 296(10) (lml); Maritime Act, Title 47 of the Marshall Islands Revised Code of Laws of 1990 (MI-07 October 2016) ch 8, pt ii, s 811(j) (mima). 606 lml, ch 8, s 204; mima, ch 1, pt iv, s 154. 607 Ibid. 608 Ibid. 609 Ibid. 610 lml, ch 1, s 32; mima, ch 1, pt 1, s 115. 611 lml, ch 9, s 254; mima, ch 7, pt i, s 706. 612 Commercial Code (Law No 2 of August 1916), Maritime Commerce (Law No 55 of 2008) (plmc). 613 Ibid title 1, ch iii, s 1, art 37. 614 Ibid ch ii, art 219. 615 Ibid.

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persons whose lives are saved, without prejudice to any national laws to the contrary.616 A salvor of human life who has taken part in the services rendered on the occasion of the accident giving rise to salvage is entitled to a fair share of the payment awarded to the salvor for salvaging the vessel, its cargo, and appurtenances.617 The Bahamian Merchant Shipping Act618 provides for a duty of the shipmaster to assist in a collision.619 The shipmaster of each colliding vessel is required, insofar as he can do so without causing danger to his own ship and life, to (i) render such assistance as may be practicable and as may be necessary to preserve them from any danger,620 (ii) stay by the other ship until he has ascertained that it has no need of further assistance,621 and (iii) provide to the shipmaster of the other vessel the details of his ship.622 A shipmaster who fails without reasonable cause to comply with the aforementioned requirements shall be guilty of an offence.623 Furthermore, if a shipmaster fails to provide assistance during a collision, the minister for maritime affairs may request an inquiry and also suspend the shipmaster’s certificate of competency pending the outcome of the inquiry.624 Additionally, the bmsa also contemplates situations of salvage in respect of the preservation of life, where salvage services are rendered (i) wholly or in part within Bahamian waters in saving life from any vessel or elsewhere in saving life from any Bahamian vessel, or (ii) within Bahamian waters, a vessel is wrecked, abandoned, stranded or in distress and services are rendered by any person in assisting such vessel or saving wreck.625 In such cases, whenever such services are rendered by any person in assisting such vessel, the owner of the ship, cargo, or apparel saved shall pay to the salvor a reasonable amount of salvage costs, including expenses property incurred, to be determined in case of dispute.626 In cases where salvage in respect of the preservation of life arises, this is payable by the shipowner in priority to all other salvage.627 616 Ibid title iii, ch ii, art 217. 617 Ibid. 618 1976, ch 268 (bmsa). 619 Ibid pt v, s 190. 620 Ibid s 190(1)(a). 621 Ibid. 622 Ibid s 190(1)(b). 623 Ibid s 190(2). 624 Ibid pt vi, s 245. 625 Ibid s 232(1)(a)-(b). 626 Ibid s 232(1)(b). 627 Ibid s 232(2).

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This review of State practice suggests that the duty to render assistance is not only recognised and incorporated into municipal law but generally consistent with the duty found in various treaties examined above.628 Some notable exceptions include that of Cyprus and the Bahamas, two leading maritime registries which are both parties to unclos, the 1974 solas, and the 1979 sar. Nevertheless, it appears that Cyprus does not have specific provisions on the duty in its legislation,629 and the Bahamas does not include a general provision regulating the shipmaster’s duty to render assistance in its law but does provide for a duty of the shipmaster to assist in the case of collisions.630 Apart from the above-mentioned exceptions, it appears that most of the domestic laws of the major flag and maritime States discussed ensure that the duty to render assistance is enforceable against the shipmaster and crew, who are usually subject to heavy penalties, such as imprisonment and/or fines, in the event that they fail to render assistance.631 The duty is not absolute and considers the safeguards found in treaty law, such as the need to safeguard the interests and safety of the vessel, crew, and passengers.632 In this respect, State laws appear to be consistent with the rules regulating the duty to render assistance in unclos, the 1974 solas, the 1979 sar, and the 1989 Salvage Convention.633 The duty to render assistance in the event of a collision is generally accepted in State practice.634 In this respect, State laws are consistent with the relevant provisions of unclos.635 This duty is often accompanied by the duty of shipmasters to exchange information in cases of collisions. Overall, State practice here follows the relevant treaty provisions. However, it is significant that a number of laws go beyond the obligations imposed by unclos and shift the 628 Ch 3, ss 3.2.2 and 3.2.3. 629 Information obtained from an interview with Maria Pilikou, Legal Advisor, Ministry of Foreign Affairs of Cyprus (19 August 2016). Under the Cypriot Constitution, once a State has ratified an international treaty, it automatically becomes part of domestic law. This may explain the absence of specific legislation incorporating the duty to render assistance in Cypriot laws; see Constitution of Cyprus of 4 October 1958, art 169(3). 630 bmsa, pt v, s 190. 631 46 usc § 2304(b); jml, ch xiv, art 125(1); mmsa, pt v, art 303(1); HK Shipping Safety Ordinance, pt vii, s 84(5). 632 cmc, ch xi, art 174; gcpml, art 120; jml, ch xiv, art 125; mmsa, pt v, art 306(1); smca, pt ii, s 6(1). 633 mmsa, pt v, arts 305 and 306; smca, pt ii, s 6(1); sssr, pt c, reg 33; uksnr, art 5(2) and sch 12(2)-(3); HK Shipping Safety Ordinance, pt vii, s 84; plmc, title iii, ch ii, art 219. 634 bmsa, pt iii, s v, s 190; cmc, ch viii, art 166; gcpml, art 123; jml, ch ii, art 13; lml, ch 8, s 204; mmsa, pt v, art 295(1); mima, ch 1, pt iv, s 154; smsa, pt v, s 106. 635 unclos, Art 98(1)(b); see further Ch 3, s 3.2.2.3.a.

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burden of proof against the shipmaster when he fails to exchange information. For example, under lml Section 204, if the shipmaster fails to give information required without reasonable cause, ‘the collision in the absence of proof to contrary shall be deemed to be caused by his wrongful act, neglect, or default’.636 A similar provision is found in the mima and the smsa.637 This position is not found in most laws, where failure to exchange information is subject to imprisonment or a fine.638 In relation to the salvage of persons, most of the State laws examined above provide that the shipmaster who saves human life at sea is entitled to a fair share of the payment awarded to the salvor of the vessel or other property or for preventing or minimising damage to the environment in accordance with the 1989 Salvage Convention Article 16(2).639 However, States which have not ratified the 1989 Salvage Convention, including the Bahamas, Malta, and Singapore, adopt a different formulation regulating life salvage. The laws of these States provide that when the saving of life occurs wholly or partly within their waters or elsewhere from any ship registered under their flag, there shall be payable a reasonable amount of salvage, limited to the property saved.640 Furthermore, the laws of the States prioritise salvage claims payable by the owner of the vessel or property over all other salvage claims.641 Interestingly, States such as Malta, Singapore, and the UK also envisage payment of compensation to the life salvor from State funds.642 This option would be availed of only in certain limited circumstances such as when salvage services are rendered in waters under their jurisdiction or when life is saved from a vessel registered with that State.643 3.4

The Duty to Render Assistance at Sea under Soft Law

This section examines the shipmaster’s duty to render assistance under soft law. It focuses primarily on guidelines produced by different international 636 lml, ch 8, s 204. 637 mima, ch 1, pt v, s 154; smsa, pt v, s 106(2). 638 gcpml, art 224, smsa, pt v, s 106(2); ukmsa, pt v, s 94(b)(ii); HK Merchant Shipping Safety Ordinance, pt vii, s 78(2)(b). 639 cmc, ch ix, art 186; 46 usc § 80107(a); ukmsa, sch 11, pt i, art 16(2); HK Merchant Collision and Salvage Ordinance, sch 1, art 17(2); lml, ch 9, s 254; mima, ch 7, pt i, s 706. 640 bmsa, pt vi, s 232(1)(a); mmsa, pt viii, art 342(1); smsa, pt ix, s 166(1). 641 bmsa, pt vi, s 232(2); mmsa, pt viii, art 342(2); smsa, pt ix, s 166(3). 642 mmsa, pt viii, art 342(3); smsa, pt ix, s 166(2); ukmsa, sch 11, pt ii, s 5(2). 643 Ibid.

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­organisations which may assist the shipmaster in rendering assistance, particularly during imros. As discussed above,644 the legal regime regulating the shipmaster’s rendering of assistance under unclos and customary international law was not intended to regulate imros. Said regime provides general obligations to the shipmaster, and there is presently no international treaty which comprehensively addresses the legal status of the shipmaster in imros. Against this backdrop, the value of the guidelines discussed below is considerable. These instruments provide authoritative and practical guidance which may help the shipmaster to (i) interpret and supplement the obligations which emerge from the legal regime regulating the duty to render assistance discussed above645 and (ii) address problems specific to the rendering of assistance in imros. 3.4.1 imo and ics Guidelines The main guidelines discussed in this section include those instruments adopted under the auspices of the imo or developed by imo in collaboration with other organisations such as unhcr and ics. In relation to the former, reference is made to the following: i. The 2004 imo Guidelines on the Treatment of Persons Rescued at Sea,646 which were adopted together with the 2004 Amendments to the 1974 solas and the 1979 sar during the msc’s 78th session.647 The primary goal of the Guidelines is to provide authoritative advice to States and shipmasters in interpreting, understanding, and implementing their international obligations when rendering assistance and undertaking sar operations.648 ii. The Rescue at Sea: A Guide to Principles and Practice as applied to Refugees and Migrants,649 which assists shipmasters, shipowners, government authorities, insurance companies, and other interested parties 644 Ch 3, ss 3.2.2.3.a. 645 Ibid ss 3.2.2.a, 3.2.3.1.b, 3.2.3.2.b. 646 imo msc, ‘Guidelines on the Treatment of Persons Rescued at Sea’ (20 May 2004) Res msc.167 (78) (2004 imo Guidelines). 647 Ibid para 2.3. In line with the rules found in the unclos, the 1974 solas and the 1979 sar, and customary international law, the Guidelines prioritise respect for the duty to assist persons in distress at sea without delay, but also emphasise the need for States to assist the shipmaster in delivering rescued persons to a place of safety; see 2004 imo Guidelines, para 3.1 and para 1.2. 648 Ibid para 1.1. 649 imo/ics/unhcr, ‘Rescue at Sea: A Guide to Principles and Practice as Applied to Refugees and Migrants’ (2015) (2015 Rescue at Sea Guide).

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affected by ­rescue operations involving irregular migrants, in particular, refugees and asylum seekers.650 iii. The three-volume International Aeronautical and Maritime Search and Rescue Manual,651 published jointly by the imo and the icao, which assists States in the implementation of their obligations under the 1974 solas, the 1979 sar, and the Convention on International Civil Aviation652 by elaborating on the different practicalities associated with rescue operations.653 Each volume of the Manual targets specific sar aspects: a) Volume i on Organization and Management addresses the global sar system and the development and improvement of regional and national sar systems;654 b) Volume ii on Mission Coordination provides guidance to personnel who organise sar operations;655 and c) Volume iii on Mobile Facilities should be carried on board rescue units to help in the performance of search, rescue, or on-scene coordinator functions and with aspects of sar pertaining to their own emergencies.656 The iamsar volumes establish three main levels of coordination within the international sar system: (i) the sar coordinator,657 who is the person or agency designated with overall responsibility for establishing and providing sar services and ensuring their proper coordination; (ii) the sar mission coordinator,658 who is an official temporarily designated to coordinate a response to a distress situation and is assigned by the rcc; and (iii) an on-scene coordinator,659 who is a person appointed to coordinate sar operations within a designated area. According to iamsar ii, if there are no designated sar

650 Ibid 3. 651 Hereafter referred to as iamsar. 652 Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 unts 295. 653 In this respect, the Manual encourages a common aviation and maritime approach to conducting sar services. 654 imo and icao, iamsar i (2019 edn, imo/icao 2019). 655 imo and icao, iamsar ii (2019 edn, imo/icao 2019). 656 imo and icao, iamsar iii (2019 edn, imo/icao 2019). Both the 1974 solas and the 2004 imo Guidelines advise shipmasters to carry out sar duties in accordance with the provisions of iamsar iii, which should be kept on board their ships; see further 1974 solas, anx ch v, reg 21(2) and the 2004 imo Guidelines, para 5.1.3. 657 Hereafter referred to as the sc; see iamsar i, Glossary, xiv. 658 Hereafter referred to as the smc; see iamsar i, Glossary, xiv. 659 Hereafter referred to as the osc; see iamsar i, Glossary, xiii.

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v­ essels available at a distress scene, the shipmaster of a merchant vessel may take over the duties of the osc and assist with the rescue.660 The value of the above-mentioned instruments to the shipmaster are considered within the context of the adoption of the 2004 Amendments to the 1974 solas and the 1979 sar,661 which require State parties responsible for the srr where the distress situation has occurred to exercise primary responsibility to ensure coordination and cooperation to relieve the shipmaster by ensuring that rescuees are delivered to a place of safety, ‘taking into account the particular circumstances of the case and guidelines662 developed by the Organization’.663 It may be argued that this explicit reference to imo guidelines has elevated their status, at least for State parties, as they must take these ‘into account’ when implementing sar obligations under the 2004 Amendments.664 This is interesting considering that some of the instruments adopted by imo, as well as those developed in collaboration with other organisations, considerably widen the scope of the shipmaster’s duties by applying obligations arising under the law of the sea, together with those imposed by other branches of international law such as human rights and refugee law.665 It is recognised that recommendations produced by ngos may have an influential effect on State practice by setting standards of conduct and best practices.666 This may exist through the promotion of principles in guides which may affect or modify State behaviour.667 Guidance provided by ngos may also have a catalytic role in the creation of hard law, by either serving as the basis for the elaboration of treaty rules or becoming the focus of State practice and precipitating a general practice accepted as law.668 This has been explicitly 660 iamsar ii, s 6.8.3(b) and s 6.8.4. 661 Ch 3, s 3.2.3.3. 662 Emphasis added. 663 1974 solas, anx ch v, reg 33, para 1–1; 1979 sar, anx ch 3, para 3.1.9. 664 For a discussion on the ramifications of guidelines as the subject matter of legal rules of reference; see László Blutman, ‘In the Trap of a Legal Metaphor: International Soft Law’ (2010) 59(3) iclq 605, 619–620; Daniel Thürer, ‘Soft Law’ (2009) mpepil 1469, para 11; Barbara Woodward, ‘The Role of International ngos: An Introduction’ (2011) 19 wjildr 203, 213. 665 See further Ch 5. 666 Woodward (n 664) 214–217, 218–223; Kenneth W Abbott and Duncan Snidal, ‘Hard and Soft Law in International Governance’ in Kenneth W Abbott and others (eds), International Organizations as Orchestrators (cup 2015) 421–423; Dana Brakman Reiser and Clare R Kelly, ‘Linking ngo Accountability and the Legitimacy of Global Governance’ (2011) 36 BrookJIntlL 1011, 1012. 667 Brakman Reiser and Kelly (n 666) 1012. 668 Shelton argues that ‘[d]espite their limited juridical effect, non-binding instruments have an essential and growing role in international relations and in the development of

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­recognised by ilc in its commentary to Draft Conclusion 4 on identification of customary international law, wherein it holds that soft law instruments produced by ngos that regulate the conduct of private persons, such as the shipmaster, may be relevant to the formation of customary international law, ‘…but only to the extent that States have endorsed or reacted to such rules’.669 ics guidance to the shipmaster is found primarily in the 2015 Large Scale Rescue Operations at Sea: Guidance on Ensuring the Safety and Security of Seafarers and Rescued Persons.670 It embodies a shipping industry approach to challenges associated with imros and recognises these present problems, which are very different from those associated with traditional rescue operations.671 The ics Guidance originally conceived in 2014672 was as a response to the dramatic increase in irregular migration by sea and distress at sea situations.673 In 2015, it was revised by the ics, working with other industry organisations674 and considering recent experiences of shipping companies, shipmasters, and crews involved in imros.675 The guidelines produced by ngos like ics may be influential in dealing with complex and sensitive situations which require a regulated response, even before binding rules are developed.676 This was observed in the wake of the irregular migration by sea crisis in 2013. i­nternational law’; Dinah Shelton, ‘Soft Law’ in David Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) 71. See also Christine M Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 iclq 850, 856–859; Barnes (n 119) 142; Woodward (n 664) 213. 669 Commentary on Draft Conclusion 4 in 2018 Draft Conclusions on cil with commentaries 132, para 8. 670 ics, Large Scale Rescue Operations at Sea: Guidance on Ensuring the Safety and Security of Seafarers and Rescued Persons (2nd Edition, 2015) (2015 ics Guidance). The guidance found therein is intended to complement the advice provided in the 2015 Rescue at Sea Guide. 671 2015 ics Guidance, s 1. 672 ics, Large Scale Rescue Operations at Sea: Guidance on Ensuring the Safety and Security of Seafarers and Rescued Persons (2014). 673 2015 ics Guidance, s 1. 674 These include: the ecsa, the Asian Shipowners’ Forum, the International Transport Worker’s Federation, the Cruise Lines International Association, the International Association of Dry Cargo Owners, the International Association of Independent Tanker Owners, the International Parcel Tankers Association and the International Ship Manager’s Association; see 2015 ics Guidance, s 1. 675 2015 ics Guidance, s 1. 676 Non-binding instruments such as guidelines often contain more detailed and precise provisions. In this respect, they are often used as an alternative to binding instruments on which it may be more difficult to gain consensus; see Alan Boyle, ‘Soft Law in International Law-Making’ in Malcolm D Evans (ed), International Law (5th edn, oup 2018) 122;

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The ics’s mandate concerns technical and legal matters, as well as policy issues affecting international shipping and the shipmaster.677 Additionally, the ics’s membership is far-reaching, comprising national shipowners across three continents (Europe, Asia, and the Americas) whose member shipping companies operate over 80 per cent of the world’s tonnage.678 As noted above, ngos may contribute to or facilitate the regulatory efforts of intergovernmental bodies by identifying the need to address international problems and lobby like-minded States.679 In this respect, the ics represents the shipping industry in various intergovernmental fora, including imo, where it possesses consultative status.680 Despite lacking voting rights, the ics has been recognised as making a substantial contribution to imo’s work, and therefore it has been bestowed with important privileges such as the right to submit documents on items of the agenda of imo bodies.681 The ics has regularly been involved in imo discussions concerning sar.682 Thus, the relevance of the ics guidelines should not be underestimated. They may be valuable in: i. filling in the gaps in the existing regime regulating the duty to render assistance by clarifying the shipmaster’s obligations in imros, ii. adding to the authority of the shipmaster in imros, and iii. offering the shipmaster guidance, which may serve as the basis for the creation of binding rules regulating his position in imros.683 The above-mentioned imo and ics guidelines recognise the crucial role of shipmasters in providing timely assistance to persons in distress684 and refer to their international legal obligations in this respect.685 The following sections

Francesco Sindico, ‘Soft Law and the Elusive Quest for Sustainable Global Governance’ (2006) 19 ljil 829, 831. 677 ics ‘Representing the Global Shipping Industry’ (Brochure, ics 2013) (2013 ics Brochure) 2. 678 Ibid. 679 Brakman Reiser and Kelly (n 666) 1013–1014; Woodward (n 664) 215–217. 680 For the list of ngos and international organisations which have been granted consultative status with imo; see imo, ‘Non-governmental international Organizations which have been granted consultative status with imo’ accessed 29 June 2019. 681 imo, ‘Rules and Guidelines for Consultative Status of Non-Governmental International Organizations with the International Maritime Organization’ (2012) r 6, para d; Woodward (n 664) 213–214. 682 2013 ics Brochure 4–5. 683 Chinkin (n 668) 856–859; Barnes (n 119) 142; Woodward (n 664) 213. 684 2004 imo Guidelines para 5.1; 2015 Rescue at Sea Guide 2–3; iamsar iii, s 1-1; 2015 ics Guidance s 1. 685 2004 imo Guidelines, para 5.1.1; 2015 Rescue at Sea Guide 4–5; iamsar i, Foreword; 2015 ics Guidance, s 2.

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provide a review of guidelines to identify their relevance to imros and their suitability for shipmasters as references when rendering assistance. This author argues that it is important for the shipmaster to understand the interrelationship between the different imo and ics guidelines686 and to consider them when rendering assistance. Such an approach would avoid fragmentation of his rescue responsibilities and lead to more organised and effective rendering of assistance. 3.4.1.1 Cooperation and Communication Effective implementation of the shipmaster’s duty to render assistance depends on proper cooperation between him and the coastal State authorities via the rcc.687 This implies that the shipmaster is given the necessary State support during a rescue, which should ensure the completion of his rescue obligations by providing for speedy disembarkation.688 On receiving a distress situation alert689 from any source, including an rcc, the shipmaster is advised to take immediate action, which includes acknowledging the receipt of the distress alert.690 The shipmaster is advised to gather information regarding the vessel in distress,691 attempt to communicate with persons on board,692 and make use of all available means to remain aware of its location.693 He should then promptly proceed to the distress scene and inform the appropriate rcc accordingly.694 However, as discussed above,695 it may not always be reasonable, or even possible, for the shipmaster to attend to distressed persons. A shipmaster might be aware of an unfolding distress situation, but may decide against proceeding to the distress scene due to the sailing time involved.696 In such cases, if the shipmaster has previously received the alert, he should 686 See 2004 imo Guidelines, para 5.1.3, where the shipmaster is encouraged to consider the sar principles found in other imo instruments, in particular, the iamsar Manuals. 687 2004 imo Guidelines, paras 1.2, 3.1, and 5.1.4; 2015 Rescue at Sea Guide 10; 2015 ics Guidance, s 5.1. 688 2004 imo Guidelines, paras 3.1 and 6.5.1; 2015 Rescue at Sea Guide 2; 2015 ics Guidance, s 5.5. 689 iamsar iii, s 6-1. 690 Ibid. 691 Ibid. This may include for eg information about the position of the craft, the nature of the distress, and the number of victims, if any. 692 iamsar iii, s 6-4. 693 Ibid. These may include radar plotting, chart plots, automatic identification system, and global navigation satellite system; see also Ch 4, s 4.2.1.1.c. 694 2015 ics Guidance, s 5.2; 2015 Rescue at Sea Guide 10. 695 Ch 3, s 3.2.2.3.a. 696 iamsar iii, s 6-7.

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enter into the logbook the reasons for failing to assist697 and report his decision not to proceed to the appropriate rcc accordingly.698 Nevertheless, the shipmaster is generally encouraged to reconsider decisions not to proceed to assist in cases where the distressed vessel is far from land or in an area with low shipping density.699 If the shipmaster can assist and has proceeded to the distress site, he is advised to remain in constant contact with the rcc throughout the rescue operation.700 A corresponding responsibility lies with the rcc of the relevant sar State to obtain and respect the shipmaster’s judgment concerning the circumstances surrounding the rescue operation. His judgment is important to assess the nature of the distress in the immediate circumstances, and it will determine the level of response and appropriate action to be taken by the relevant rcc.701 Upon reaching the distress site, the shipmaster will need to review any immediate threat to life on the distressed vessel and decide upon action to be taken.702 The shipmaster should supply the rcc with any relevant information relating to the type of assistance needed.703 This should be done in light of the assisting ship’s preparedness for embarkation of distressed persons,704 specifically any limiting factors such as the characteristics of the ship’s equipment and insufficient manpower and supplies on board.705 Furthermore, the shipmaster should inform the relevant rcc about factors surrounding the rescue, including the safety of navigation, weather conditions, and time-sensitive cargo on board his vessel.706 It is not always necessary for the shipmaster to embark persons from a vessel in distress onto his own vessel.707 After consulting with the rcc, the shipmaster may choose to accompany the vessel in distress while it continues passage or until other assisting ships or another sar service becomes available.708 697 Ibid; see also 2015 ics Guidance, s 5.3. 698 iamsar iii, s 6-7; 2015 ics Guidance, s 5.3. Under the latter instrument the shipmaster is encouraged to record all events and decisions relating to the rescue operation. 699 iamsar iii, s 6-7. 700 2015 ics Guidance, s 5.1. 701 Ibid s 5.4. 702 Ibid s 5.5. 703 2004 imo Guidelines, para 5.1.5; 2015 ics Guidance, s 5.4. 704 Ibid. 705 2015 Rescue at Sea Guide 11. 706 Ibid. 707 2015 ics Guidance, s 5.4. 708 Ibid. However, any decision taken in this respect should consider possible risks to both persons in distress and the crew of the assisting ship.

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If distressed persons have been embarked by the shipmaster, there should be an exchange of information between the shipmaster and the relevant rcc concerning the assisting ship, such as details relating to the ship, including its name, the flag and port of registry, the name and address of the shipowner/ operator and agent at the next port of call, the position of the vessel, and the next intended port of call.709 He should also provide the rcc with an assessment relating to the continuing safety and security of the assisting ship,710 particularly the endurance of the rescuees;711 the risks posed to the ship, passengers, crew, and rescuees;712 and preferred arrangements for disembarking rescuees.713 The shipmaster is encouraged to take note of and share with the rcc details such as the number of rescuees, their names, genders, and apparent health and medical conditions.714 The provision of such information will better equip the rcc to assist the shipmaster as quickly and effectively as possible. Considering the above, and where possible, the shipmaster should contact the rcc responsible for the srr where the rescue occurred and seek the necessary assistance, particularly regarding disembarkation.715 In some situations this may be impractical or impossible.716 In such cases the shipmaster should contact other governments willing to assist. 3.4.1.2 Level of Preparedness Shipmasters requested to render assistance may be faced with a multitude of safety and security challenges when undertaking imros.717 A good level of preparedness on the part of the shipmaster and his crew to deal with such situations may facilitate the successful operation of rescue activities.718 This level of preparedness may be even more necessary in mass imros.719 According to iamsar ii, a mass rescue operation720 is considered to be one that ‘involves a need for immediate assistance to large numbers of persons in distress such 709 2015 Rescue at Sea Guide 10. 710 2004 imo Guidelines, para 6.10.2. 711 2015 Rescue at Sea Guide 10. 712 2015 ics Guidance, s 5.5. 713 2004 imo Guidelines, para 6.10.6; see also para 5.1.7. 714 2004 imo Guidelines, para 6.10.1; see also 2015 ics Guidance, s 5.3. 715 2004 imo Guidelines, para 5.1.4. 716 Ch 1, s 1.4. 717 Ibid. 718 2015 ics Guidance, s 4. 719 iamsar ii, s 6.15.10. 720 Hereafter referred to as mro.

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that capabilities normally available to sar authorities are inadequate’.721 These types of operations generally require enhanced sar capabilities that can be achieved inter alia by identifying additional sar facilities, including shipping in or close to the area of distress.722 mros may be characterised by demands including (i) a continuous and intense high priority to implement lifesaving efforts;723(ii) increased availability of means of communication, interlinked amongst organisations at various levels, to provide large amounts of information reliably for the duration of the response to the rescue operation;724 and (iii) integrated planning and operational efforts carried out in real time throughout the rescue operation.725 mros often require intense preparations and operational planning and increased responsibilities on the part of the shipmaster and crew to provide an extraordinary and rapid response to prevent large-scale loss of life. This type of preparedness generally depends on strong and visionary leadership through the shipmaster and cooperation between him and other entities such as coastal State sar authorities.726 A lack of preparedness on the part of the shipmaster in mros may have serious consequences, including mass loss of life. mros may involve hundreds of migrants in distress in a remote or hostile environment, such as in unseaworthy vessels.727 Shipping companies whose vessels are sailing in areas that are likely to be affected by imros are advised to develop and prepare additional plans which cover procedures for rescuing large numbers of persons from other crafts, managing persons on board, and ensuring the safety and security of the rescued persons and crew, as well as post-disembarkation actions by the 721 iamsar ii, s 6.15.1. 722 Ibid. Furthermore, see iamsar ii s 6.15.23 which provides that ship reporting systems for sar may help identify commercial ships available to assist. 723 iamsar ii, s 6.15.6. 724 Ibid. Furthermore, communication plans must provide for a heavy volume of communication use as a major incident will generally involve response from many organisations which may need to effectively communicate with each other from the start of the rescue. Necessary arrangements should be made to link means of interagency communications that are not inherently interoperable. Interagency communications must also be based on terminology understood by all involved; see iamsar ii, ss 6.15.32–6.15.33. 725 iamsar ii, s 6.15.6. iamsar ii includes examples of incidents which may require the immediate rescue of larger numbers of passengers, such as a large passenger ship collision or terrorist incident at sea, but excludes cases requiring the rescue of large groups of migrants in distress; see iamsar ii, s 6.15.4 and s 6.15.10. Due to increased imros in recent years, this author argues that such situations should be a consideration in the upcoming revised iamsar ii to be published in 2022; see iamsar ii, Foreword. 726 Ch 3, s 3.2.3.2.d. 727 Ch 1, ss 1.1 and 1.3.

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s­ hipmaster and shipowner.728 This will require the shipmaster to implement any relevant plans or procedures that enhance safety and security of his crew and vessel.729 These may range from very practical considerations,730 such as wearing appropriate clothing that would help rescued persons identify individuals as part of the vessel’s crew,731 to implementing procedures which assist in calming rescued persons and maintaining overall control and order on the vessel.732 Prior to commencing a rescue operation, the shipmaster should consider the safe navigation of his vessel and other vessels in the area.733 He should also assess the availability and capabilities of the ship’s equipment and life-saving appliances.734 Once proceeding to the distressed vessel, the shipmaster is advised to assess the situation and possible risks he and his crew may encounter.735 In this respect, he may also be required to brief the crew about the upcoming operation. This may involve assigning specific duties and preparing for any on-scene operations,736 for example, those relating to the recovery of people from the water.737 Furthermore, the shipmaster should ensure the equipment expected to be used during a rescue operation is assembled and functional, including, for example, life-saving, first-aid, and signalling equipment.738 He should also assess the availability of food, water, and first aid supplies on board.739 In the case of an imro, there may also be the need for supplemental communication capabilities, possibly the provision of interpreters considering that migrants on board may not be able to speak the language of the shipmaster or members of

728 2015 Rescue at Sea Guide 10; 2015 ics Guidance, s 4.1. The 2015 ics Guidance states that an imro plan may complement existing ship plans and procedures by providing additional information about or clarifications on particular safety and security matters relevant to imros, which may not be addressed in existing plans. The document provides key elements which are most relevant to such types of operations, but acknowledges that because of the unique nature of each rescue, not all advice found therein may be applicable or appropriate to every vessel. See further Ch 4, s 4.2.1.3. 729 2015 Rescue at Sea Guide 10; 2015 ics Guidance, s 5.6; iamsar iii, ss 13-1–13-2. 730 2015 ics Guidance, s 5.8. 731 Ibid. 732 Ibid. 733 Ibid s 5.7; see also Ch 4, s 4.2.1.1.c. 734 2015 Rescue at Sea Guide 10. 735 iamsar iii, s 6-5. 736 2015 ics Guidance, s 5.7; iamsar iii, s 6-5. 737 iamsar iii, s 6-5; see also iamsar ii, s 6.15.28. 738 iamsar iii, ss 6-5–6-6; see also 2015 ics Guidance, ss 4.6 and 5; 2015 Rescue at Sea Guide 10. 739 2015 ics Guidance, ss 4.4 and 4.5.

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his crew.740 The shipmaster should also plan for reliably accounting for everyone involved in the imro, including survivors and his crew.741 However, this task may prove challenging unless the shipmaster can effectively communicate with the rescuees, as otherwise it may be difficult for him to determine whether all rescuees are accounted for. The shipmaster should ensure that his crew are prepared for imros and have received the necessary training. In this respect, the shipmaster and crew should be aware of their general responsibilities under relevant imo treaties.742 The shipmaster and crew are also advised to consider the best ways in which available provisions and equipment can be used to support an imro,743 specifically regarding the provision of food, water, medical supplies, shelter, and separate ablution facilities for rescuees, and the cleaning of accommodation and sanitation of areas of the ship following disembarkation.744 3.4.1.3

Actions to Be Implemented during and after the Embarkation of Rescued Persons The guidelines make clear that the principal task of the shipmaster during a rescue is to preserve safety at sea, which should not be compromised at any stage of the operation.745 The number of people involved is a potential challenge facing the shipmaster when assisting in an imro.746 This could hamper the shipmaster’s ability to conduct the rescue operation while ensuring the safety and security of all involved.747 In this respect, the shipmaster should keep in mind some practical considerations.748 For example, iamsar iii provides guidance to the shipmaster and his crew concerning some of the more physical aspects relating to the recovery of persons in distress and embarkation on the assisting ship in bad weather conditions.749 Recovery methods may include, for example, streaming a rope with lifebuoys or other floatation

740 iamsar ii, s 6.15.29. 741 Ibid; see also iamsar iii, s 13-2. 742 2015 ics Guidance, s 4.2; see also Ch 4, s 4.2.1.2.b. 743 If the vessel’s onboard supplies prove to be insufficient to attend to the number of rescued persons, then the shipmaster is advised to seek assistance from the rcc; see 2015 ics Guidance, ss 4.3, 4.4 and 4.6. 744 2015 ics Guidance, s 4.6. 745 See Ch 4, s 4.2.1.1; 2015 ics Guidance, s 3; 2004 imo Guidelines, para 5.1; iamsar ii, s 6.15.5. 746 2015 ics Guidance, s 5.8. 747 Ibid. 748 Ibid. 749 iamsar iii, ss 14-2 and 14-3.

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d­ evices attached or rigging pilot ladders or Jacob’s ladders to the ship’s side with safety lines, or deploying improvised recovery baskets.750 iamsar iii also recognises the shipmaster’s judgment rescue operations. For example, if he considers that the risks involved in recovering distressed persons outweigh the risks of leaving these persons in life-saving appliances, then he may consider a number of actions which include transferring essential survival and medical supplies.751 Furthermore, if the shipmaster considers that his ship does not have a large freeboard to safely retrieve persons from the water or survival craft, it may be possible for him and his crew to retrieve them onto smaller vessels and then transfer them to a larger vessel.752 During the embarkation phase of a rescue operation, the shipmaster should ensure that persons in distress are brought on board one at a time, through a single entry point.753 Luggage or personal effects of persons being rescued should not be allowed if they hinder safe and speedy embarkation.754 Throughout the embarkation, the shipmaster is advised to retain control, and he may be required to: i. search rescuees and confiscate any dangerous items, particularly weapons and smoking materials and other sources of ignition;755 ii. once persons have been safety embarked, in line with the 2015 Rescue at Sea Guide, record the number of rescuees and their particulars;756 iii. segregate rescuees into appropriate size groups based on medical condition, gender, and age, or by family group;757 and iv. instruct rescuees to move away from the point of embarkation.758 In the initial stages following the embarkation of distressed persons, the shipmaster should move these individuals to a predetermined area that should serve as a controlled environment. In such cases, and whenever practical, the shipmaster may want to consider separating rescuees as mentioned above. Additionally, any accommodation will need to be well ventilated, and he will need to make food and water arrangements.759 Furthermore, following 750 Ibid s 14-3. 751 Ibid s 2-38. 752 iamsar ii, s 6.15.24. 753 2015 ics Guidance, s 5.9. 754 Ibid. 755 Ibid. 756 Ibid. 757 Ibid. 758 Ibid. 759 Ibid s 6.2. These considerations may be particularly important for the shipmaster in order for him to respect human rights obligations towards his rescuees; see Ch 5, s 5.2.3.

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e­ mbarkation it is important for the shipmaster to prioritise the maintenance of ship security.760 After embarkation and confirming that the situation is safe, the shipmaster and his crew should attempt to establish a rapport with the rescuees, who may provide them with information about the circumstances of the distress situation, which can also be relayed to the rcc.761 In this respect, Appendices C and B included in the 2015 ics Guidance are particularly helpful. Appendix C incorporates principles found in the 2004 imo Guidelines and provides a table for compiling information related to persons rescued which may assist in their management on board and with provision of information to coastal State authorities.762 This record of rescuees should include the names, ages, genders, and nationalities of rescued persons, their location on board, and any other relevant information such as medical conditions.763 Appendix B contains a number of flashcards with safety-related signage and information to help the shipmaster and his crew communicate with rescuees.764 For example, no-fire signage accompanied by a warning that states, ‘No flames or naked lights – there is a fire hazard because of the cargo being carried on this ship’.765 These signs and accompanying information have been translated into Arabic, French, and English to be understood by as many rescuees as possible. 3.4.1.4 Disembarkation of Rescued Persons to a Place of Safety As examined above,766 States responsible for the srr where assistance is rendered are required by the 2004 Amendments to the 1974 solas and the 1979 sar to assist the shipmaster to ensure that rescuees are ‘disembarked from the assisting ship and delivered to a place of safety’.767 A problematic issue, however, is what constitutes a place of safety or port of safety, as the concept is undefined under major Conventions treating the duty to render assistance, particularly unclos, the 1974 solas, and the 1979 sar. This is significant considering that the process of delivery of persons to a place of safety is a crucial

760 This issue is discussed in detail in Ch 4, s 4.2.1.3. 761 Ibid. 762 2015 ics Guidance, appx C, 26. 763 Ibid. 764 Ibid appx B, 13. 765 Ibid Flash Card 2. 766 Ch 3, s 3.2.3.2.c. 767 Emphasis added. In determination of a place of safety, States are required to consider ‘… the particular circumstances of the case and guidelines developed by the Organization’; see 2015 Rescue at Sea Guide 12–13 and 2015 ics Guidance, s 7.1.

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part of the shipmaster’s rescue obligations and that the effective completion of such duties depends on this task.768 The 2004 imo Guidelines defines a place of safety as: … 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.769 Notwithstanding the useful definition provided, the guidelines do not specify precisely where such a place of safety should be located.770 Much will depend on the circumstances surrounding the rescue. Yet the guidelines do elaborate on locations which should not be considered as a place of safety. For example, in light of the problems associated with merchant vessels carrying out rescue operations involving a large number of people,771 the guidelines make clear that a rescuing ship should only serve as a ‘temporary place of safety’.772 Vessels like the mv Tampa and others referred to above773 may not have suitable facilities or supplies to accommodate the needs of rescuees without endangering the safety of the vessel or its crew. Therefore, suitable arrangements should be made as soon as possible to relieve the shipmaster of his responsibility of hosting rescuees on his vessel.774 The Appendix to the 2004 imo Guidelines provides further advice to the shipmaster and States considering that a place of safety should be determined ‘by reference to its characteristics and by what it can provide for the survivors’,775 and not ‘solely by reference to geographical location’.776 In fact, as shown in Chapter 5,777 the geographically closest State to the site of rescue may not necessarily constitute a place of safety, as defined by the 2004 imo Guidelines, if it does not include ‘a place where the survivors’ safety is no longer threatened 768 Ch 3, s 3.2.3.3.c. 769 2004 imo Guidelines, para 6.12. 770 Scovazzi (n 370) 48. 771 2004 imo Guidelines, para 6.13. 772 Ibid. This definition of a place of safety is also provided for in the 2015 Rescue at Sea Guide 13. 773 Ch 1, s 1.2. 774 2004 imo Guidelines, para 6.13. 775 Ibid appx, para 3. 776 Ibid. 777 Ch 5, s 5.3.2.

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and wherein their basic human needs (such as food, shelter and medical needs)’ can be met. It is generally left up to States to cooperate with each other and the shipmaster in providing a suitable place of safety for the disembarkation according to the circumstances of each case,778 particularly the ship’s capacity to accommodate and manage rescuees; the ability of the crew to provide assistance, medical assistance, and food; and the need to minimise deviation from the planned voyage.779 As discussed above,780 varying interpretations of what constitutes a place of safety or port of safety has led to political disagreement amongst States.781 These uncertainties do not help to encourage or assist shipmasters in rendering assistance to migrants in distress. The matter is further complicated by the fact that even if a place of safety appears to be the nearest port, it may not always be available.782 In this respect, it is crucial that States cooperate, especially to relieve the shipmaster of rescuees, as soon as practicable783 and to ensure quick arrangements are in place for their disembarkation.784 An important aspect of the 2015 ics Guidance, which appears to be unaddressed by the 2004 imo Guidelines and the 2015 Rescue at Sea Guide, is the maintenance of ship safety and security once rescuees have been disembarked.785 In this respect, the shipmaster should oversee extensive searches for rescues migrants who stowaway on board the rescuing vessel.786 He should also ensure that effective cleaning takes place with hot water and detergent or other disinfecting solution of areas which housed rescued persons.787 The well-being of the crew post-rescue operation is crucial. Because diseases and

778 2004 imo Guidelines, para 6.16; see also 2015 Rescue at Sea Guide 10–11. 779 2015 ics Guidance, s 7. 780 See disputes between Malta and Italy on the interpretation of a place of safety in imros discussed in Ch 3, s 3.2.3.3.c. 781 This is supported by the conclusions of the Parliamentary Assembly of the Council of Europe (pace) in Res 1821, where the organisation noted that the concept of a ‘place of safety’ does not appear to be interpreted in the same way by all member States; see pace, ‘The Interception and Rescue of Asylum Seekers, Refugees and Irregular Migrants’ (21 June 2011) Res 1821, para 5.2. 782 Ch 5, s 3.4.1.5. 783 2004 imo Guidelines, paras 6.3–6.11. 784 Ibid para 6.9. 785 2015 ics Guidance, s 7.4. 786 Ibid. 787 Ibid.

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infections have incubation periods, the shipmaster should ensure ongoing health and psychological support for the crew.788 3.4.1.5

Respect for the Human Rights and Refugee Rights of Rescued Persons During imros, the shipmaster is required to take cognisance of and fulfil relevant human rights law and refugee law obligations.789 The shipmaster may rescue migrants who qualify as asylum seekers and refugees.790 In this respect, the definitions of both terms found in the 2015 Rescue at Sea Guide are useful.791 It should be emphasised that the shipmaster is not responsible for determining the status of persons he has rescued.792 Furthermore, in determining a place of safety, States and the shipmaster may have to consider not only the rules and associated guidelines of the law of the sea but also other relevant international rules found in human rights law and refugee law, especially the principle of non-refoulement.793 If rescued migrants indicate in any way that they fear persecution or ill-treatment if disembarked in a particular place, the shipmaster is advised to uphold the fundamental rules of refugee law. These issues are further discussed in Chapter 5. In cases of disagreement between States or between a State and a shipmaster concerning the place of disembarkation of rescuees who may be asylum seekers or refugees,794 the intervention of organisations such as the unhcr is permitted.795 This is significant, as such an organisation may be in a position to (i) guide the shipmaster regarding his human rights responsibilities and (ii) exert pressure on States to assist the shipmaster by providing an appropriate place for disembarkation.796 788 Ibid s 7.5; see further Ch 4, s 4.2.1.2.c. 789 2004 imo Guidelines, para 1.1; 2015 Rescue at Sea Guide 8–9. 790 Ch 1, s 1.5. 791 2015 Rescue at Sea Guide 8; see also Ch 5, s 5.3. 792 2015 Rescue at Sea Guide 11. This issue is discussed in further detail in Ch 5, s 5.3.3. 793 Martin Ratcovich, ‘The Concept of “Place of Safety”: Yet Another Self-Contained Maritime Rule or a Sustainable Solution to the Ever-Controversial Question of Where to Disembark Migrants Rescued at Sea?’ (2016) 33 aybil 81, 120–121. For an examination of the principle of non-refoulement and its relevance for the shipmaster’s rendering of assistance; see Ch 5, s 5.3. 794 2015 Rescue at Sea Guide, Additional Considerations. 795 2015 Rescue at Sea Guide, Additional Considerations. See also iamsar ii, s 6.15.27, which provides that mros should primarily be coordinated by rccs but may also require extensive rescue support by organisations other than those commonly used for search and rescue activities; see also iamsar ii, s 6.15.6. 796 See eg the mv Salamis case discussed in Ch 1, s 1.4.

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3.5 Conclusion This Chapter examined the current legal status of the duty to render assistance at sea under treaty law, customary international law, and soft law, with an emphasis on the position of the shipmaster in imros. The regime regulating the duty set out in unclos is supplemented by other international instruments adopted under the auspices of the imo: the 1974 solas, the 1979 sar, and the 1989 Salvage Convention. The unclos formulation of the duty, together with the relevant rules found in said instruments, make up a viable regime, which strikes a balance between the safety of life at sea and the responsibilities of the shipmaster. In many respects, this is done by harmonising the various rules regulating the duty to render assistance and supplementing the lacunae in unclos. Furthermore, a review of State practice demonstrated that not only do the rules regulating the duty to render assistance enjoy the status of customary international law but that States are incorporating and implementing this regime into their municipal law, ensuring the enforcement of the duty by their courts. The chapter concluded by examining the value of soft law instruments adopted under the auspices of the imo, unhcr, and ics that focus on said duty in imros. The provisions found in these instruments support and strengthen the legal regime regulating the shipmaster’s duty to render assistance, particularly in the face of imros, for example, they provide the shipmaster with a definition of a place of safety for disembarkation of rescuees. The succinct and user-friendly format of these instruments also focuses on important safety and security concerns for the shipmaster which are not addressed by the other instruments, for example, practical issues relating to management and post-disembarkation of rescuees.

Chapter 4

State Measures Relating to the Duty of the Shipmaster to Render Assistance under the Law of the Sea 4.1 Introduction In the previous chapter, the general duty to render assistance at sea was analysed. It was established that whilst the main formulation of the duty in treaty law is found in unclos Article 98, its implementation depends on related rules found in unclos and other treaties. This chapter focuses on the complex and rigorous measures States are obliged to undertake with respect to safety at sea under unclos Article 94 and their relevance to the shipmaster’s duty to render assistance. It identifies the generally accepted international regulations, procedures, and practices to which such measures are required to conform. This entails an analysis of the relevant rules found in unclos and the treaties adopted under the auspices of imo and ilo. The chapter further examines measures implemented by coastal States with respect to the shipmaster’s duty to render assistance, with an emphasis on the internal waters, territorial sea, and contiguous zone. It concludes by establishing to what extent, if at all, the relevant treaty rules reflect customary international law, and by identifying any rules with respect to the shipmaster’s duty to render assistance found only in customary international law. 4.2

State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Treaty Law

Despite the law of the sea’s longstanding interest in the status of the shipmaster, it is somewhat surprising that unclos refers to him directly on only a few occasions.1 Nevertheless, several unclos rules significantly affect his legal 1 Some examples of direct references include eg unclos, Art 97(1) which provides that ‘…in the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national’. For other direct references to the shipmaster; see

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s­ tatus, particularly when rendering assistance.2 The first part of this section examines the doctrine of flag State jurisdiction and the responsibility of the shipmaster for the implementation of measures concerning the safety, seaworthiness, and security of the vessel and the management of the crew. As was established in Chapter 3, no single international treaty exists that comprehensively regulates the legal status of the shipmaster,3 particularly when rendering assistance in imros. Consequently, it is necessary to refer to State measures required under unclos, as well as imo and ilo treaties, in particular the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, as amended;4 the 1974 solas,5 and related codes, including the International Safety Management Code6 and the International Ship and Port Facility Security Code;7 the 1979 sar;8 the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation;9 and the Maritime Labour Convention, 2006, as amended.10 The second part of this section focuses on relevant coastal State measures in the internal waters, territorial sea, and contiguous zone that may also affect the shipmaster’s duty to render assistance in imros.

2 3

4 5 6

7 8 9 10

unclos, Arts 27(1)(c) and (3), 94(2)(b), (4)(b) and (c), 98(1), and 211(3).; see further Sandra L Hodgkinson and others, ‘Challenges to Maritime Interception Operations in the War on Terror: Bridging the Gap’ (2007) 22 AmUIntlLRev 583, 593–594. John A C Cartner, Richard P Fiske, and Tara L Leiter, The International Law of the Shipmaster (Informa 2009) 77–79, 87–94. Boisson observes that ‘[no] international convention regulates the status of shipmasters … In general, the master bears authority for the maritime expedition, and fulfils a number of functions, technical, commercial, legal, public and disciplinary’.; see Philippe Boisson, Safety at Sea: Policies, Regulations & International Law (Bureau Veritas 1999) 305. (adopted 7 July 1978, entered into force 28 April 1984) 1361 unts 190 (1978 stcw). Specific reference will also be made to stcw Code introduced as part of the Convention in 1995. Part A of the stcw Code is mandatory for State parties; see Boisson (n 3) 318. For a further discussion on the 1974 solas, see Ch 3, s 3.2.3.1. imo (Resolution) ‘International Management Code for the Safe Operation of Ships and for Pollution Prevention’ (23 November 1995) Res A.788(19) on Guidelines on Implementation of the International Safety Management (ism) Code by Administrations (ism Code). The ism Code forms part of 1974 solas, anx ch ix. For the application of ch ix, see 1974 solas, anx ch ix, reg 2. imo (Resolution) ‘The International Ship and Port Facility Security Code’ (Amendment to the Annex of solas, 17 December 2002) Conf Res 2 (isps Code). The isps Code is contained in 1974 solas, anx ch xi-2 on special measures to enhance maritime security. For a further discussion on the 1979 sar; see Ch 3, s 3.2.3.2. (adopted 10 March 1988, entered into force 1 March 1992) 1678 unts 201 (1988 sua). (adopted 23 February 2006, entered into force 20 August 2013) 2952 unts (mlc, 2006). The mlc, 2006 consists of the convention itself, the regulations, and the Code of the mlc, 2006 (mlc, 2006 Code).

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4.2.1 Flag State Jurisdiction Under unclos every State has the right to sail ships flying its flag on the high seas.11 Each State also has the right to fix the conditions for the granting of its nationality to ships, for the registration of ships, and for the right to fly its flag.12 unclos Article 92(1) provides as follows: Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas…13 As a result of the flag State’s exclusive jurisdiction, the shipmaster is generally held responsible for the implementation of the flag State duties contemplated under unclos Article 94, even if there are times when the convention does not directly impose such duties on the shipmaster.14 In fact, to enforce these duties, the flag State is required to assume jurisdiction under its internal law15

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unclos, Art 90; see further Tullio Treves, ‘Navigation’ in René-Jean Dupuy and Daniel Vignes (eds), A Handbook of the New Law of the Sea Volume ii (Martinus Nijhoff Publishing 1991) 835–976; John N K Mansell, Flag State Responsibility: Historical Development and Contemporary Issues (Springer 2009) 61–63. unclos, Art 91(1). Nationality is conferred upon vessels through the administrative act of registration, which is an official confirmation that ships meet the relevant flag State laws and regulations in return for the flag State’s diplomatic protection; see further Richard Coles and Edward Watt, Ship Registration: Law and Practice (2nd edn, Informa Law 2009) 7; Donald R Rothwell and Tim Stephens, The International Law of the Sea (2nd edn, Hart 2016) 168–169; Yoshifumi Tanaka, The International Law of the Sea (3rd edn, cup 2019); Mansell (n 11) 27–32. The right of navigation under unclos, Art 90 and the exclusive jurisdiction of the flag State governed by unclos, Art 92(1) also apply within the eez by virtue of unclos, Art 58(2). However, it should be noted that the right of navigation is more limited in the eez, where States must pay due regard to the eez rights of the coastal State; see unclos, Art 58(3); see further David Joseph Attard, The Exclusive Economic Zone in International Law (Clarendon Press 1987) 75–76. Bruce argues that ‘…the master is the person in command of the ship – but such privilege also has its responsibilities, and these are well detailed by the flag State administrations’.; see DJF Bruce, ‘Flag States and the Shipmaster’ in The Nautical Institute on Command: A Practical Guide (2nd edn, The Nautical Institute 2000) 70; see also Francis Lansakara, ‘Rescue of Migrants at Sea under Maritime Law Regime’ (2015) 14 isil YBInt’lHuman&RefugeeL 288, 289; Kyriaki Noussia, ‘The Rescue of Migrants and Refugees at Sea: Legal Rights and Obligations’ (2017) 31 Ocean yb 155, 158. unclos, Art 94(2)(b). This provision requires the flag State to assume jurisdiction ‘…not only over ships flying its flag, but also over the master, officers and crew of such ships. The reference “master” indicates that the article only applies to merchant ships … by necessary extension paragraph 2(b) also applies to all persons on board the ship, whether legally or not’; see Myron H Nordquist and others (eds), The United Nations Convention on

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and to place the ship ‘in the charge’ of a shipmaster.16 As part of its duties in the exercise of effective jurisdiction under unclos Article 94(2)(b), the flag State must take measures over ships flying its flag which are necessary to ensure the protection of life at sea.17 However, the administrative act of ship registration alone is insufficient to ensure the exercise of flag State duties concerning safety of life at sea. The effective implementation of these duties is secured through the doctrine of genuine link required by unclos.18 This doctrine is fundamental, as it ensures that an effective link exists between the vessel and the State responsible for the compliance of its shipmasters with the rules of international law. It further governs the attribution of flag State responsibility19 in cases of violations of applicable rules by their shipmasters.20 Yet the convention does not define what constitutes a genuine link,21 and its meaning in law of the sea remains somewhat controversial.22 It is within the flag State’s discretion to decide the conditions upon which nationality is granted.23 This led to

16 17 18 19 20 21

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the Law of the Sea 1982, Volume iii: A Commentary (Martinus Nijhoff Publishers 1995) (Virginia Commentary iii) 146. unclos, Art 94(4)(b). The article also refers to officers, however, in practice and as is reflected in domestic laws, the ultimate responsibility for and overriding authority over the ship lies with the shipmaster; see Ch 4, s 4.2.1.1. unclos, Art 94(3); see also Richard A Barnes, ‘Flag States’ in Donald R Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (oup 2015) 314–315; Oya Özçayir, Port State Control (2nd edn, llp 2004) 21. unclos, Art 91(2); see further Simone Borg, ‘The Influence of International Case Law on Aspects of International Law Relating to the Conservation of Living Marine Resources beyond National Jurisdiction’ (2012) 23 YIntlEnvL 44, 56–57. For an examination of flag State responsibility and the shipmaster’s duty to render assistance, see Ch 6, s 6.4.1. Virginia Commentary iii (n 15) 104. Douglas Guilfoyle, ‘Part vii High Seas’ in Alexander Prölss (ed), The United Nations Convention on the Law of the Sea: A Commentary (CH Beck, Hart, Nomos 2017) 699. In the absence of clarification on the meaning of genuine link under unclos, this criterion is often interpreted in the context of the Nottebohm judgment, where the icj held that with respect to the nationality of an individual there must exist ‘…a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties’. The absence of this link may lead to non-recognition of nationality by a third State; see Nottebohm Case (Liechtenstein v Guatemala), Second Phase, Judgment [1955] icj Rep 4, 23. The lack of agreement between States on firm conditions for the establishment of a genuine link is evidenced by the failure of the entry into force of the United Nations Convention on Conditions for Registration of Ships (7 February 1989, not yet in force) 26 ilm 1229; see Tanaka (n 12) 194; Ademuni Odeke, Bareboat Charter (Ship) Registration (Kluwer Law International 1998) 130–138. This principle is laid down in unclos, Art 91(1); see further Simone Borg, Conservation on  the High Seas: Harmonizing International Regimes for the Sustainable Use of Living ­Resources (Edward Elgar Publishers 2012) 194–195.

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the development of so-called ‘open registry’ States, which allow shipowners to register their vessels with little or no real connection to such States.24 This situation may also lead to problems of enforcement due to poor control, as ‘open registry’ States may be either unable or unwilling to exercise proper jurisdiction over their ships.25 This may consequently have serious implications for the implementation of the shipmaster’s duty to render assistance and other related responsibilities, particularly considering the safety and security challenges and economic losses associated with a commercial vessel’s involvement in imros.26 The International Tribunal for the Law of the Sea27 has clarified the rules regulating genuine link through its jurisprudence, specifically the M/V “Saiga” (No. 2)28 and the M/V “Virginia G” cases.29 The former concerned the arrest of oil tanker the M/V “Saiga” by Guinea for providing oil and gas to fishing vessels off West Africa in violation of their customs laws.30 Guinea claimed that the vessel had not been validly registered in St. Vincent and the Grenadines at the time of the arrest,31 and even if it had been, no genuine link existed between the M/V “Saiga” and St. Vincent and the Grenadines. Consequently, Guinea claimed that the latter was not competent to bring a claim on behalf of the vessel.32 In its judgment, itlos observed that: …the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.33

24 25

26 27 28 29 30 31 32 33

Mansell (n 11) 75–77 and 95–96; Barnes, ‘Flag States’ (n 17) 306–307. Rothwell and Stephens note that such States have a reputation for taking little interest in the affairs of the ship and persons on board, and generally do not apply standards to ensure the safety of ship and crew; see Rothwell and Stephens (n 12) 168; see further Özçayir (n 17) 23; Yaodong Yu, Yue Zhao, and Yen-Chiang Chang, ‘Challenges to the Primary Jurisdiction of the Flag States Over Ships’ (2018) 49 OceanDev&IntlL 85, 86. Ch 1, ss 1.3–1.4. Hereafter referred to as itlos. The M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v Guinea) (Merits, Judgment of July 1 1999) itlos Rep 1999 (M/V ‘Saiga’ ( No 2)). The M/V “Virginia G” Case (Panama/Guinea-Bissau) (Merits, Judgment of 14 April 2014) itlos Rep 2014 (M/V “Virginia G”). M/V “Saiga” (No. 2), paras 32 and 35. Ibid para 58. Ibid paras 75–76 and 77–78. Ibid para 63.

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A similar situation arose in the 2014 M/V “Virginia G” case, which involved a Panamanian-registered oil tanker that was confiscated, together with the fuel it was carrying, by Guinea-Bissau for unauthorised refuelling of licensed fishing vessels in its eez.34 Panama claimed that it was entitled to damages suffered during the ship’s detention. Guinea-Bissau argued that the absence of a genuine link between M/V “Virginia G” and Panama was a cause for inadmissibility of Panama’s claims.35 In its judgment, itlos reaffirmed its findings in the M/V “Saiga” (No. 2) case and elaborated further: …once a ship is registered, the flag State is required under article 94 of the Convention, to exercise effective jurisdiction and control over that ship in order to ensure that it operates in accordance with generally accepted international regulations, procedures and practices.36 In the view of the tribunal, therefore, the test for a genuine link between a ship and its flag State exists to ensure the performance of duties listed in unclos Article 94. A ship may be registered with a flag State, which will only retain the genuine link if it abides by its international obligations to ensure effective jurisdiction and control over that vessel.37 The doctrine of the genuine link also obliges flag States to ensure that shipmasters comply with the duty to render assistance and other necessary measures, especially those found in unclos Articles 94(3) and (4) aimed at protecting the safety of life at sea.38 These measures are vital to rendering assistance, particularly with respect to ensuring a high level of preparedness when the shipmaster is faced with imros. Furthermore, in taking such measures, the flag State is required to conform to ‘generally accepted international regulations, procedures and practices’.39 Some authors opine that this does not require the flag State to adopt such 34 35 36 37

38 39

Ibid para 62. Ibid para 21. M/V “Virginia G”, para 113. Any State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report this to the flag State under unclos, Art 94(6). The flag State is then obliged to ‘investigate the matter and, if appropriate, take any action necessary to remedy the situation’; see further Yoshinobu Takei, ‘International Legal Responses to the Flag State in Breach of Its Duties: Possibilities for Other States to Take Action Against the Flag State’ (2013) 82(2) ActScandJurisGent 283, 287–288. unclos, Art 94(3). Ibid Art 94(5); see also Arts 39(2)(a) and 54.

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r­ egulations but instead requires it to take measures to ensure that the flag State conforms to what is required under said regulations.40 This view is supported by unclos, which requires the flag State to take ‘any steps which may be necessary to secure their observance’.41 Much will depend on the legal system of the flag State, as the courts of most States will enforce a treaty rule only once it has become part of municipal law.42 Consequently, such measures will have to include the incorporation of said international regulations into municipal law. Other measures exist to encourage cooperation, such as active participation of flag States in the deliberations of the organisations which have adopted said regulations, such as imo and ilo.43 The flag State must take measures necessary to ensure that the shipmaster and crew comply with ‘…applicable international regulations concerning the safety of life at sea…’44 These international regulations are primarily found in imo and ilo Conventions.45 In effect, they either complement unclos, or deal with its lacunae, or provide more technical and specific rules. Indeed, these instruments, together with unclos, establish a comprehensive international regulatory regime addressing measures States are required to take to ensure (i) safety and seaworthiness of the vessel, (ii) proper management of the crew, and (iii) security of the vessel and crew. It is now proposed to examine these measures and how they may affect the position of the shipmaster when rendering assistance at sea.46

40

41 42 43 44 45

46

Kraska and Pedrozo argue that ‘[s]tates have freedom, however, to devise the specific form of such application [to generally accepted international regulations, procedures and practices] to their individual interpretation of the regulations’; see James Kraska and Raul Pedrozo, International Maritime Security Law (Martinus Nijhoff Publishers 2013) 368; see also Guilfoyle, ‘Part vii High Seas’ (n 21) 710; Bernard H Oxman, ‘The Duty to Respect Generally Accepted International Standards’ (1991) 24 NYUJIntlL&Pol 109, 139–140. unclos, Art 94(5). See eg the Malta Merchant Shipping (Safety Convention) Rules, sub leg 234.30, art 3 (mmssr) which gives the 1974 solas the force of law in Maltese legal system. Mansel adds that ‘regular reporting of the flag State’s activities should be made to the imo and ilo as required by the various instruments’; see Mansel (n 11) 4. unclos, Art 94(4)(c). Virginia Commentary iii (n 15) 147–148; Guilfoyle, ‘Part vii High Seas’ (n 21) 712–713; Tanaka (n 12) 191; Tamo Zwinge, ‘Duties of the Flag States to Implement and Enforce International Standards and Regulations – And Measures to Counter Their Failure to Do So’ (2011) 10 jibl 297, 302–305. The shipmaster’s duty to render assistance under imo conventions such as the 1974 solas and the 1979 sar has been examined in detail in previous chapters; see Ch 3, s 3.2.3.

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4.2.1.1 Safety and Seaworthiness Under unclos, every State has a duty to take measures to ensure the safety of life at sea and the seaworthiness of its vessels.47 The shipmaster plays a crucial role in the implementation of such measures. His position is generally reflected in the practice of major flag States that require him to assume full responsibility for proper management of the ship and the safety of the vessel, its crew, and passengers at all times.48 Interestingly, under Panamanian law, the position of the shipmaster in this respect is strengthened, as he is endowed with governmental authority and represents Panama in relation to the preservation of order on board the vessel and the safety of passengers, seamen, and cargo.49 With regard to State measures to ensure seaworthiness, Cartner, Fiske, and Leiter observe that this duty ‘…rests on the master during the voyage. His duty is clear. He must keep the vessel seaworthy and he must refuse to sail when the vessel is unseaworthy’.50 His obligation is enforced in municipal law, with most flag States requiring both the shipmaster and shipowner to ensure that the ship is seaworthy, with criminal sanctions imposed upon failure to do so.51 The obligation to ensure seaworthiness is extremely important in implementing the duty to render assistance. As has been noted in the analysis of unclos Article 98(1), the act of rendering assistance is subject to the decision of the shipmaster to act without causing serious danger to the ship, the crew, or the passengers on board.52 Unseaworthy vessels threaten the life of persons aboard and are less capable of effectively implementing the duty to render assistance. Hence, the shipmaster’s failure to ensure that his ship is seaworthy could severely inhibit his ability to provide safe rescues.53 Major maritime States appear to have adopted a consistent definition of seaworthiness, which reflects the position in the treaties mentioned below. The Bahamas, Malta, Singapore, and the UK define unseaworthiness as a ship which is unfit to go to sea without serious danger to human life.54 This ­qualification may also extend to life in distress. Elements of unseaworthiness, 47 48 49 50 51 52 53 54

unclos, Art 94(3)(a); see also Barnes, ‘Flag States’ (n 17) 315; Robin R Churchill and Alan Vaughn Lowe, The Law of the Sea (3rd edn, mup 1999) 265–266. See eg lml, ch 10, ss 296(3) and 296(5); mmsa, pt iv, art 100(2); mima, ch 8, pt ii, ss 811(c) and (e); Republic of the Marshall Islands Maritime Regulations (MI-108, August 2018) (mimr) ch 7, s 7.41.1. plmc, ch ii, s 1, art 29. Cartner, Fiske, and Leiter (n 2) 180. mmsa, pt v, art 279(2), smsa, pt v, s 110; ukmsa, pt iv, s 98. Ch 3, s 3.2.2.3.a. See pages 135–138. bmsa, pt v, s 210(7)(b); mmsa, pt v, art 278(1); smsa, pt v, s 110(1); ukmsa, pt iv, s 94(1).

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especially those relating to the shipmaster’s duty to render assistance, include undermanning,55 overloading, unsafe or improper loading,56 and any other matters relating to the safety of the ship.57 Significantly, the mmsa extends the interpretation of unseaworthiness to include ‘…unfamiliarity by the master or the crew with essential shipboard procedures relating to the safety of ships’.58 Familiarity with essential safety shipboard procedures is also required under unclos Article 94(4)(b) and required for proper seamanship, as discussed below.59 They could prove to be vital in rendering assistance, particularly in the post-operation boarding of rescued migrants. International safety and seaworthiness measures are primarily regulated by rules found in the 1974 solas60 and complemented by the regulations of the ism Code. The substantive provisions of both instruments have been incorporated into numerous municipal laws.61 The ism Code establishes international standards for the safe management and operation of ships to ensure safety of life at sea, prevention of human injury or loss of life, and avoidance of damage to the marine environment and to property.62 It sets out standards of safety and seaworthiness in shipping through the development of a safety management system63 on board, which should include a safety and environmental policy,64 encourage the safe operation of ships in accordance with the relevant international and flag State laws,65 and develop procedures to prepare for and respond to emergency situations.66 If the ship operates in accordance with the 55 56 57 58 59 60 61 62 63

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bmsa, pt v, s 210(7)(b); mmsa, pt v, art 278 (2)(b); smsa, pt v, s 110(2)(b); ukmsa, pt iv, s 94(2)(b). bmsa, pt v, s 210(7)(b); mmsa, pt v, art 278(2)(c); smsa, pt v, s 110(2)(c); ukmsa, pt iv, s 94(2)(c). mmsa, pt v, art 278(2)(c); smsa, pt v, s 110(2)(d); ukmsa, pt iv, s 94(2)(d). mmsa, pt v, art 278(2)(d). Ch 4, s 4.2.1.2.b. For a discussion on the 1974 solas, see Ch 3, s 3.2.3.1. See eg HK Merchant Shipping Safety Ordinance, mmssr, Singapore Merchant Shipping Safety Regulations, and uksnr. ism Code, pt A, s 1.2.1. Hereafter referred to as the sms; see ism Code, pt A, s 1.1.4. The sms is to be developed, implemented and maintained by the shipowner who is defined in ism Code, pt A, s 1.1.2, see s 1.4; see further William Tetley, International Maritime and Admiralty Law (Éditions Yvon Blais 2002) 53. ism Code, pt A, s 1.4.1. The safety and environmental protection policy encourages safe ship operation practices, assesses and identifies possible safety risks, and improves the safety management skills of crew to prepare for safety and environmental emergencies; see ism Code, pt A, s 2. ism Code, pt A, s 1.4.2. Ibid s 1.4.5.

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sms, the flag State will issue a safety management certificate67 or interim safety management certificate.68 Additionally, ships must have on board a document of compliance issued by the flag State which recognises the shipowner has abided by the requirements of the ism Code.69 The shipmaster is considered to be a crucial part of the sms.70 Under the ism Code, he must be properly qualified for command and be fully conversant with the sms.71 The ism Code further imposes specific duties on the shipmaster; for example, he is responsible for the implementation of the safety and environmental protection policy and for ensuring it is respected by the crew.72 This is complemented by his duty to issue to the crew appropriate orders and instructions concerning the operation of the vessel.73 The overall effectiveness of the ism Code depends largely on the shipmaster’s ability to effectively implement the sms.74 Anderson argues that: [i]t would be inconceivable and entirely inappropriate to appoint a Master who was not in a position to ensure that he/she could effectively implement the sms onboard as well as motivate the crew and monitor its effective implementation.75 This position appears to be reflected in most State laws, which also recognise the critical role of the shipmaster in implementing the sms.76 For example, the

67 68 69

70 71 72 73 74 75 76

Ibid pt B, s 13.7. Ibid s 14. Ibid pt B, ss 13.1 and 13.2. As noted by Mathison, the document of compliance is important, as without it the vessel will not be able to trade; see I Mathison, ‘The ism Code and the Master’ in The Nautical Institute on Command: A Practical Guide (2nd edn, The Nautical Institute 2000) 33. Cartner, Fiske, and Leiter (n 2) 171–172; Phil Anderson, ism Code: A Practical Guide to the Legal and Insurance Implications (3rd edn, Informa Law 2015) 140. ism Code, pt A, ss 6.1.1 and 6.1.2. The shipmaster depends on the shipowner so that his duties can be safely performed; see ism Code, pt A, s 6.1.3. ism Code, pt A, ss 5.1.1 and 5.1.2. Ibid, s 5.1.3. Ibid ss 5.1.4 and 5.1.5. Anderson (n 70) 142. See eg the Panama Maritime Authority, ‘Implementation of ism Code’ (September 1996) Merchant Marine Circular No 100; Bahamas Maritime Authority, ‘International Safety Management (ism) Code’ (issued 23 April, effective from 2 May 2018) Bulletin No 23; Malta Maritime Authority, Merchant Shipping Directorate, ‘Implementation of the International Safety Management (ism) Code for the Safe Operation of Ships and for Pollution Prevention’ (14 March 2001) msd Notice No 42; UK Merchant Shipping, ‘International

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HK Merchant Shipping (Safety) (Safety Management) Regulation77 requires the shipmaster to be familiar with the sms and the planned arrangements for its implementation.78 The rules found in the ism Code and the responsibilities placed on the shipmaster are relevant to the implementation of the duty to render assistance. Undertaking rescue operations may require the shipmaster to respond in accordance with the procedures for responding to emergencies required by the ism Code and included in the vessel’s sms.79 It may be argued that as a result of increasing imros in various parts of the world, the practicalities of conducting a rescue operation in such circumstances should be considered in the sms and the vessel’s safety and environmental protection policy. In particular, the sms should consider plans and procedures for rescuing large groups, accommodating large transfers of persons once embarked, and managing the safety of the crew and rescuees.80 The inclusion of such procedures in the sms enhances the shipmaster’s authority in rescue operations, allowing him to instruct the crew according to procedures vetted by the shipowner. It is significant that ism Code section 5.2 requires the sms to establish that the shipmaster has ‘overriding authority and responsibility to make decisions’ regarding safety.81 This is also supported by 1974 solas Annex Chapter v regulation 34-1: The owner, the charterer, the company operating the ship as defined in regulation ix/1, 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… Therefore, the shipmaster has full authority to take the necessary actions in the interest of the protection of human life at sea, even if this requires him to deviate from the established sms procedures or act contrary to the instructions of the shipowner. It is the shipmaster’s prerogative under treaty law to take onthe-scene decisions as to whether the duty to render assistance should be

Safety Management (ism) Code Regulations 2014’ (2014), No 1512 which provide guidance to the shipmaster on the implementation of the sms. 77 (sub leg ax, Cap 369). 78 Ibid s 9(b). 79 2015 ics Guidance, s 2. 80 Reference may be made to relevant procedures provided in soft law instruments discussed in Ch 3, s 3.4. 81 ism Code, pt A, s 5.2. A similar approach is taken in the isps Code; see Ch 4, s 4.2.1.3.

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i­ mplemented considering the safety of his vessel, crew, and passengers.82 This fundamental and powerful right bestowed on the shipmaster ensures that the duty is not absolute. His prerogative under section 5.2 of the ism Code and 1974 solas Annex Chapter v regulation 34-1 complements his right to exercise his professional judgment to decide whether it is in the interest of the ship, crew, and passengers to render assistance. Furthermore, if the shipmaster decides that it is possible for him to undertake the rescue, he is permitted to take any actions following the rendering of assistance to maintain safety onboard, without interference from any third party.83 For example, during an imro, the shipmaster may have to take decisions to limit access to certain parts of the vessel for safety and security reasons. The overriding authority and responsibility of the shipmaster to implement decisions concerning the safety of the vessel is generally respected and protected in State laws.84 HK has gone so far as to criminalise persons who prevent or restrict the shipmaster from executing any decisions concerning the safety of his vessel.85 An extensive international regime governs the rules relating to the safety and seaworthiness of vessels. This author has chosen to focus on three safety and seaworthiness measures she considers particularly relevant to the duty of the shipmaster to render assistance: (i) the maintenance of communications, (ii) proper watchkeeping, and (iii) the holding of charts and nautical publications on board the vessel. Furthermore, ‘seaworthiness’ within the context of unclos Article 94(3)(a) is considered to be a broad concept which embraces ‘…the design, construction, manning, equipment, as well as the standards of maintenance, of the ship and vessel’.86 This suggests some overlap may exist between flag State measures to ensure safety regarding the seaworthiness of the vessel, and between others discussed below relating to security measures87 and manning and training of the crew.88 82 83 84

85 86 87 88

KX Li and Jim Mi Ng, ‘International Maritime Conventions: Seafarers’ Safety and Human Rights’ (2002) 33 JMarL&Com 381, 389. Li and Mi Ng observe that ‘[t]he master of the ship has the ultimate right to judge on the spot the situations of the ship, cargo, and sea and weather, and to decide the proper safety measures’.; see Li and Mi Ng (n 82) 390. See eg Liberia Maritime Authority, ‘International Safety Management Code (ism Code)’ Marine Notice, ism-001, Rev 06/12, s 6.7; MI, ‘International Safety Management (ism) Code’, Marine Notice, No 2-011-13, Rev.July/2019, s 3.2; Singapore Merchant Shipping (Safety Convention), ch v, reg 34-1, HK Merchant Shipping (Safety) (Navigational Equipment and Safety of Navigation) Regulation (sub leg ba, Cap 369) (HKSSR) pt 3, s 27(1). hkssr, pt 3, s 27(2). Virginia Commentary iii (n 15) 147. Ch 4, s 4.2.1.3. Ibid ss 4.2.1.2.a–b.

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4.2.1.1.a Maintenance of Communications unclos requires the flag State to take measures to ensure that the ship maintains effective communications on board the vessel.89 Moreover, it requires the shipmaster and, to the extent appropriate, the crew to be fully conversant with and to observe the applicable international regulations concerning the maintenance of communication by radio90 found mainly in the 1974 solas, the 1979 sar, and the 1978 stcw.91 Efficient communications at the disposal of the shipmaster are crucial to the effectiveness of his duty to assist. A lack of proper communication systems on board may frustrate this duty, as the shipmaster may not be informed of a distress situation or be able to engage in important communications to ensure successful rescue operations. One of the constitutive elements of the duty to render assistance under unclos Article 98 is the obligation of the shipmaster to proceed at all possible speed to the rescue of persons in distress ‘if informed of their need of assistance’.92 In this respect, the shipmaster depends on effective lines of communication not only with people seeking rescue but also with neighbouring coastal or sar States, especially the relevant rccs.93 Under the 1979 sar, the relevant rcc may instruct the shipmaster to attend to a distress situation,94 and it may assist him by coordinating the rescue and providing the necessary assistance and instructions on a place of disembarkation.95 The shipmaster should further ensure that his ship has communication systems which are able inter alia of receiving shore-to-ship distress alerts and of transmitting and receiving ship-to-ship distress alerts, sar coordinating communications, and on-scene communications.96 In this respect, the 1974 solas requires that ships are equipped with appropriate radio communications,97 specifically the Global Maritime Distress and Safety System,98 which provides automated distress alerting and communication with service location information to locate ships

89 unclos, Art 94(3)(c). 90 Ibid Art 94(4)(b). 91 See also iamsar iii, s 8. 92 unclos, Art 98(1)(b); see further Ch 3, s 3.2.2.3.a. 93 Ch 3, s 3.2.3.2.d. 94 1979 sar, anx ch 2, paras 2.1.1, 2.1.9, and 2.1.10. 95 For an analysis of issues relating to disembarkation, see Ch 3, s 3.2.3.3.c. 96 1974 solas, anx ch iv, regs 4.1.2–4.1.5. 97 Ibid anx ch iv. For the application of ch iv, see 1974 solas, anx ch IV, reg 1-2. 98 Hereafter referred to as the gmdss. The gmdss is the international radio safety system for ships mandated by the imo. Such communication systems have largely replaced other types of distress signals recognised by maritime custom and international agreements such as Morse code; see John E Noyes, ‘Ships in Distress’ (2007) mpepil 1219, para 7.

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in distress.99 The gmdss assists in alerting the rcc ashore of the position of the ship in distress, and ships in the immediate vicinity of the ship in distress can be alerted and can contribute to a coordinated rescue service without delay.100 Several other important measures regarding the maintenance of communications concern the shipmaster and may be relevant in the case of rendering assistance. Ships are required to have in place ship reporting systems that contribute, inter alia, to the safety and efficiency of navigation.101 Ship reporting systems may provide the shipmaster with information to assist him in directing his vessel towards a distress location. These systems may also provide information about navigational hazards, for example, unseaworthy migrant vessels which have been abandoned. Furthermore, all adopted ship reporting systems and actions must be consistent with international law, including the 1979 sar rules.102 Under the 1979 sar Annex Chapter 5 para 5.1.3.2, State parties must ensure that ship reporting systems provide up-to-date information on the movement of vessels to inter alia permit rapid identification of vessels which may be called to assist.103 The shipmaster therefore has a responsibility to respond to alerts to assist persons in distress, and his obligation to comply with relevant ship reporting systems has been incorporated into various State laws.104 For example, under the sssr, the shipmaster of a Singaporeanregistered vessel must comply with the requirements of the adopted ship ­reporting systems and report to the appropriate authority all information required in accordance with the provisions of such system.105 Similarly, under HK and UK laws shipmasters who do not comply with the relevant ship reporting systems applicable to their vessels may be subject to a fine or imprisonment.106 99 1974 solas, anx ch iv, reg 5-1(2). 100 Boisson (n 3) 365–371; see also International Mobile Satellite Organization, ‘The Global Maritime Distress and Safety System (gmdss)’ accessed 3 December 2018. See 1978 stcw, ch iv, reg iv/2, on certification of gmdss radio operations. 101 1974 solas, anx ch v, reg 11-1; see also reg 11-7, which obliges the shipmaster to comply with the requirements of the adopted ship reporting systems and report to the appropriate authority all information required in accordance with the provisions of each system. 102 1974 solas, anx ch v, reg 11-8; see also 1979 sar, anx ch 5 regulating ship reporting systems. 103 1979 sar, anx ch 5, para 5.1.3.2. 104 Panama Maritime Authority, ‘Compliance with Mandatory Ship Reporting Systems’ (September 2001) Merchant Marine Circular No 113. 105 Singapore Merchant Shipping (Safety Convention), ch v, reg 11(b); uksnr, sch 3, s 4(2). 106 hkssr, pt 3, ss 16(1) and (2); uksnr, sch 4, s 4.

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In relation to ship reporting obligations, shipmasters have a duty to communicate and disseminate information on immediate dangers for ­navigation.107 Under the 1974 solas, in any situation in which a direct danger to navigation may materialise, the shipmaster is obliged to communicate this information to nearby ships and the competent authorities.108 Whilst it appears that the purpose of this obligation is to alert other ships to hazards faced by the shipmaster, and thereby prevent accidents at sea, it may also be argued that this duty imposes on a shipmaster the need to advise other shipmasters of any risks accompanying rescues, which may be considered as ‘any other direct danger to navigation’.109 This is also supported by the 1974 solas obligation imposed on State parties to take all steps necessary to ensure that, when intelligence is received from whatever reliable source, it is promptly brought to the knowledge of those concerned and communicated to other interested governments.110 This rule may be important in rescue operations in which unseaworthy vessels are left abandoned and may endanger the safety of navigation, as was evidenced in the 2015 mv Ezadeen case,111 when a dilapidated Sierra Leone–­ registered cargo vessel departed from Turkey towards Greece with over 400 migrants on board.112 After several days, it lost power in very rough seas.113 The migrants sent a distress call to the Italian authorities informing them that the crew had abandoned the vessel and there was no one to steer it.114 The vessel drifted for some time before being towed safely into port by the coastguard.115 The shipmaster’s obligation to report any direct danger to navigation as required by the 1974 solas is enforced under most flag State laws. For example, 107 Boisson (n 3) 338. 108 1974 solas, anx ch v, reg 31-1. For the application of ch v, see reg 4. 109 1974 solas, anx ch v, reg 32, indicates different types of information that must be included in the danger message submitted by the shipmaster, such as the kind of derelict or danger to navigation. 110 1974 solas, anx ch v, reg 31-2. 111 ‘Abandoned Migrant Ship Ezadeen reaches Italy’ bbc News (London, 3 January 2016). 112 John Hooper, ‘Abandoned Ship Ezadeen with 450 Migrants on Board Being Towed to Italy’ The Guardian (London, 2 January 2015). 113 Ibid. 114 Sally Hayden, ‘Italy Rescues Another Abandoned Migrant Ship, Suggesting a Change in Smuggling Tactics’ Vice News (US, 2 January 2015) accessed 12 December 2018. 115 Lizzie Dearden, ‘Abandoned Migrant “Ghost Ship” Arrives in Italy Carrying Hundreds of Syrian Refugees’ The Independent (London, 3 January 2015) accessed 15 December 2018.

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Malta imposes this duty on shipmasters under the penalty of an administrative fine,116 whilst HK law appears to impose stricter penalties for contravention, as the shipmaster is liable to both a fine and a criminal sanction.117 In the event that any accident, collision, or defect occurs which affects the safety of the ship or its life-saving appliances or other equipment, the shipmaster should be familiar with relevant emergency procedures and is to immediately report the incident to the appropriate authorities.118 This responsibility may be pertinent in rescue operations given the dangers that often accompany the implementation of the shipmaster’s duty to render assistance, including the loss of life and damage to the ship or its equipment. The ship may be damaged during or after rescue operations. Additionally, the shipmaster must be mindful of the fact that embarking distressed migrants may adversely impact the vessel’s safety of navigation, as was demonstrated in the King Jacob incident.119 Furthermore, the shipmaster’s duty to report accidents is also important to ensure that the flag State is kept abreast of developments throughout the rescue operation. The shipmaster’s duty to report obligation appears to be generally reflected in State practice. Under the jml, the shipmaster of a Japanese vessel is required to report to the minister on any occurrence which may affect its navigation, and specifically if he is engaged in efforts to save human life.120 A similar duty is found under Singapore and Maltese laws, which extend the duty to the shipowner, and where failure to report such information to relevant authorities without reasonable cause could lead to a fine.121 4.2.1.1.b Watchkeeping Effective watchkeeping at all times is vital, as the duty to render assistance relates to ‘any person found at sea in danger of being lost’.122 The shipmaster’s capacity to find or be informed of distressed persons thus greatly depends on effective watchkeeping.123 Under the 1978 stcw, the shipmaster is to ensure that watchkeeping arrangements are adequate for maintaining safe and e­ ffective 116 mmsa, pt v, arts 300(1) and (2). 117 HK Safety of Equipment and Navigation Regulation, pt 3, s 24(5). 118 1974 solas, anx ch i, reg 11-c. For the application of ch i; see 1974 solas, anx ch i, reg 1-a. Any accidents or incidents affecting the vessel or persons on board should also be entered by the shipmaster in the ship’s logbook; see 1974 solas, anx ch v, regs 33-1 and 28 regulating the records of navigational activities. 119 Ch 1, s 1.3. 120 jml, ch ii, art 19(2). 121 smsa, pt v, ss 107(1)-(2); mmsa, pt v, arts 307(1)-(2). 122 unclos, Art 98(1)(a). See further Ch 3, s 3.2.2.3.a. 123 See also page 139.

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watch, taking into account the prevailing circumstances and conditions.124 Such arrangements must be undertaken in accordance with stcw Code standards.125 Furthermore, the Code also regulates principles to be observed in keeping with a navigational watch, specifically a proper lookout must be maintained at all times to detect inter alia ships or persons in distress.126 These obligations are particularly relevant for shipmasters when their vessels navigate through active irregular migration routes such as those found in the Mediterranean, Southeast Asia, Gulf of Aden, or the English Channel.127 Shipmasters must remain vigilant not only to avoid collisions with ships carrying migrants that may be under command of persons without proper seamanship but also to spot distress situations en route, to address incidents as soon as practicable. Effective watchkeeping is equally crucial when the shipmaster has embarked distressed persons on board his vessel. He will need to implement effective watches to monitor rescuees and ensure that they do not infiltrate sensitive or dangerous areas of the ship. The Bahamas, the MI, Malta, the UK, and Panama all require that the maintenance of adequate watchkeeping be the responsibility of the shipmaster, who must act in accordance with requirements in the 1978 stcw and the stcw Code.128 Under certain laws, such as that of HK and China, this responsibility also extends to the shipowner.129 4.2.1.1.c Charts and Nautical Publications The importance of proper charts and nautical publications on board is emphasised in unclos Article 94(4)(a). Under unclos Article 98(1)(b) the shipmaster must proceed with all possible speed and, if necessary, divert from the 124 1978 stcw, anx ch viii, reg viii/-2. For the application of ch viii, see 1978 stcw, Art iii. See further the stcw Code, pt A, ch viii, regs 9–10; see also reg 8. 125 stcw Code, pt A ch viii, s A-viii/1. For an example of the requirements for fitness for duty, see stcw Code, pt A, ch viii, s A-vii/1–2. 126 stcw Code, pt A, ch viii, pt 4-1, reg 14.3. 127 Ch 1, s 1.2; see also Vassilis P Tzevelekos and Elena Katselli Proukaki, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 ActScandJurisGent 427, 428. 128 Bahamas Merchant Shipping (Training, Certification, Manning and Watchkeeping) Regulations, 2011 (btcmwr) pt iv, ss 30(1) and (2); MI, ‘Principles of Watchkeeping’, Marine Notice No 7-038-4, para 1.1.1; Malta Merchant Shipping (Maritime Labour Convention) Rules, sub leg 234.51 (mmlcr), arts 33(1) and (2); UK Merchant Shipping (Standards of Training, Certification and Watchkeeping) Regulations 2015 (2015, No 782) (ukstcwr), pt 4, ss 47(1) and (2); Panama Maritime Authority, ‘Watchkeeping at Sea’, Merchant Marine Circular No 188, para 2. 129 HK Merchant Shipping (Seafarers) (Certification and Watch-keeping Regulation), ch 478, sub leg T-2, s 4; Regulations on Watchkeeping for Seafarers on Seagoing Ships of the People’s Republic of China (Enacted by Order of the Ministry of Transportation and Communications No 73 Jiao-Hang-Zi-02484 dated January 31, 1984), ch ii, s 2, art 11.

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planned route to attend to persons in distress. This requires access to the latest charts and nautical publications to enable him to adopt a route which will allow the vessel to arrive expeditiously at the site of distress. Furthermore, in rescue operations, it may also be necessary for the shipmaster to consult procedures outlined in relevant nautical publications, particularly the iamsar Manuals.130 The requirement to have on board the latest charts and nautical publications is elaborated on in treaties such as the 1974 solas.131 Electronic charts are also accepted.132 Additionally, under 1974 solas Annex Chapter v regulation 34-1, the shipmaster is responsible for planning out his voyage using the appropriate nautical charts and publications, which is essential for the safe navigation of the vessel and avoidance of dangers.133 In this respect, electronic chart display information systems134 on board may also be used.135 Consequently, the shipmaster must decide whether the diversion is safe.136 It is therefore important that he should have available the latest charts. The implementation of this rule is found in various domestic laws. The MI require the shipmaster to ensure that the vessel carries adequate and up-to-date charts, sailing directions, lists of lights, notices to mariners, tide tables, and all other nautical publications necessary for the intended voyage.137 The Bahamas, Panama, and Liberia also require their vessels to have on board digital, electronic, or paper charts.138 Moreover, Singapore and Malta require their vessels to carry on board adequate and up-to-date nautical charts and publications, including 130 Relevant procedures relating to the shipmaster’s duty to render assistance set out in the iamsar Manuals are discussed in detail in Ch 3, s 3.4.1. 131 1974 solas, anx ch v, reg 27. 132 Ibid reg 19, s 2.1.4. 133 1974 solas, anx ch v, reg 34-1. This is also a mandatory requirement under the stcw Code, pt A, ch viii, s A-viii/2, pt 2, reg 5. See further Bruce (n 14) 72; Boisson (n 3) 334–338. See also the ism Code, pt A, s 11.1, which requires the shipowner to establish and maintain procedures to control all documents and data relevant to the vessel’s sms. This documentation relate not only to the necessary certifications but also to all navigational charts and publications; see Mathison (n 69) 37. 134 Hereafter referred to as ecdis. 135 1974 solas, anx ch v, reg 19-2-4. 136 In this respect, as confirmed by 1974 solas, anx ch V, reg 34–1, and the ism Code, s 5.2, discussed above, no third party shall prevent or restrict the shipmaster from taking any decision which he feels is necessary for the safety of navigation; see Ch 4, s 4.2.1.1. 137 mimr, ch 7, s 7.41.15. 138 Bahamas Maritime Authority, ‘ecdis, Nautical Charts and Publications’ (14 November 2017) Bulletin 51; Panama Maritime Authority, ‘Electronic Charts and Publications in regards to the Carriage Requirements and Crew Training on board Panama Flagged vessels’ (24 July 2012) Merchant Marine Circular mmc-218; Liberia Maritime Authority, ‘Safety of

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the iamsar iii.139 The same obligations are found in the hkssr.140 However, the latter specifically provides that the responsibility to ensure that nautical charts, nautical publications, and manuals are carried on board the ship and kept up to date extends to the shipmaster and shipowner.141 Similarly, under the uksnr, a shipmaster or shipowner who allows his vessel to go to sea without carrying on board up-to-date nautical charts and publications may be found guilty of an offence punishable on summary conviction by a fine.142 4.2.1.2 Crew The shipmaster’s responsibility for the overall safety of the ship depends on measures taken by States to ensure proper manning, labour conditions, and crew training on ships flying their flags.143 This responsibility is largely dependent on the shipmaster, who oversees all activities on board, but he will have to delegate some responsibilities to his officers and crew.144 When rendering assistance, the shipmaster must assess to what extent he can rely on the crew’s expertise and capabilities to effectively carry out the rescue.145 Thus, the shipmaster should ensure that not only is he supported by an adequately sized crew146 but that the crew is properly trained to undertake imros.147 Furthermore, he has duties to ensure that proper labour conditions are maintained for his crew and that these are not compromised when undertaking rescues.148 4.2.1.2.a Manning unclos provides that every State should take measures to ensure that the ‘crew is appropriate … in numbers for the type, size, machinery and equipment

139 140 141 142 143 144 145 146 147 148

Navigation – Nautical Charts and Publications and Notices to Mariners’, Marine Notice nav-001, Rev 06/12. Singapore Merchant Shipping Safety Regulations, ch v, regs 27 and 21; Transport Malta, Merchant Shipping Directorate, ‘Publications to be Carried Onboard Malta Flagged Vessels’ Technical Notice sls.33. hkssr, pt 3, s 20(2). Ibid s 20(3). uksnr, s 13. unclos, Art 94(3)(b); see also Churchill and Lowe (n 47) 269–270; Özçayir (n 17) 21. P Chawla, ‘What a Ship Owner Requires from a Master’ in The Nautical Institute on Command: A Practical Guide (2nd edn, The Nautical Institute 2000) 19. unclos, Art 94(4)(b). Ibid Art 94(4)(c). Ibid; see further Cartner, Fiske, and Leiter (n 2) 211. Özçayir (n 17) 21; Cartner, Fiske, and Leiter (n 2) 216–225.

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of the ship…’.149 This measure is also reflected in the 1974 solas, which requires all State parties ‘…to maintain, or, if it is necessary, to adopt, measures for the purpose of ensuring that, from the point of view of safety of life at sea, all ships shall be sufficiently and efficiently manned’.150 For this purpose, the flag State must provide its ships with a safe manning document that establishes the minimum safe manning level required to comply with safety of life at sea requirements,151 which have been elaborated upon in imo Resolution A.1047.152 These include, for example, the capability to maintain safe navigational watches and the need to undertake emergency duties and responsibilities.153 Furthermore, when determining the minimum safe manning of a ship, the ability of the shipmaster and crew to coordinate the activities necessary for safe operation of the vessel and security of the ship must be considered.154 imros often tend to be complex and are likely to engage as many crew members as possible.155 A shipmaster whose vessel is not sufficiently or efficiently manned may face problems in effectively implementing the duty. He will need to rely on the manpower of the crew when embarking migrants. For example, if large groups of migrants are rescued, it may be important for the maintenance of the good order of the vessel that the shipmaster can rely on an adequately manned crew to assist with monitoring the rescuees. The requirement for ships to be sufficiently manned is imposed in municipal laws. Under Chinese law,156 all vessels should be manned with duly qualified officers and crew according to the standard of manning adequate to ensure the safety of navigation.157 Similarly, under the mimr, all vessels that fly the MI flag should have a sufficient number of seafarers on board to ensure that vessels are operated safely, efficiently, and with due regard to security.158 In this respect, every vessel must be manned by a crew that is adequate in terms of size and ­qualifications 149 unclos, Art 94(4)(b). 150 1974 solas, anx ch v, reg 14-1; ism Code, pt A, s 6.2.2, which requires the shipowner to ensure that each ship is appropriately manned to encompass all aspects of maintaining safe operation on board. See also Churchill and Lowe (n 47) 269–270. 151 1974 solas, anx ch v, reg 14-2. 152 imo Assembly, ‘Principles of Minimum Safe Manning’ (30 November 2011) Res A.1047 (27). 153 Ibid anx 1, paras 3.1.1.1, 3.2.1.4, and 3.2.5. 154 Ibid anx 2, para 1.4.2. 155 Ch 1, s 1.3. 156 Maritime Traffic Safety Law of the People’s Republic of China (Adopted at the Second Meeting of the Standing Committee of the Sixth National People’s Congress, and effective as of January 1, 1984) (Maritime Traffic Law of China). 157 Ibid ch iii, art 6. 158 mimr, ch 7, s 7.38.

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to ensure the safety and security of the vessel and its personnel under all operating conditions and in accordance with the minimum safe manning document.159 Under the mmlcr,160 the HK Merchant Shipping (Safety)(Ship’s Manning Regulation), and the ukstcwr,161 the shipmaster is obliged to ensure that his vessel does not proceed to sea unless he is in possession of a minimum safe manning certificate or a copy of it issued in respect of the ship.162 A shipmaster of a UK-registered or HK-registered vessel who fails to abide by this rule may be liable to a fine or imprisonment.163 Additionally, under the mmsa, every Maltese ship when going to sea must be provided with such number and description of officers and crew as the minister may by regulations prescribe.164 Failure to comply with this requirement leaves the shipmaster or owner of the ship liable to a fine for each offense.165 A similar position is found in the ukmsa and the bmsa, which provide that if a ship goes to sea without carrying the required number of officers and seamen, both the shipmaster and shipowner will be liable to a fine, and the ship may be detained or have its certificate of registry revoked.166 Under the smsa, a stricter approach is adopted against the shipmaster and shipowner: if a ship goes to sea without carrying the required number of officers, doctors, and other seamen, they may be guilty of both an offence and liable on conviction to a fine.167 Under said Act, the ship may also be detained.168 4.2.1.2.b Training Under unclos Article 94(3)(b), flag States must take the necessary measures to ensure the training of the crew. In this respect, the shipmaster plays an important role in assessing the relevant competences of his crew and ensuring that these are up to standard.169 This requires him to be familiar with standards 159 Ibid. 160 mmlcr, art 32(2). 161 ukstcwr, pt 4, s 46(2). 162 HK Merchant Shipping (Safety) (Ship’s Manning Regulation) (ln, 123 of 2016) Cap 369, s 107 (HK Ship’s Manning Regulation) pt 2, s 5(2) and pt 3, s 8(3)(a); Panama Maritime Authority, ‘Principles of Minimum Safe Manning’ Merchant Marine Circular mmc-285. 163 ukstcwr, pt 5, s 55(3); HK Ship’s Manning Regulation, pt 2, s 5(3). 164 mmsa, pt vi, art 90(1). 165 Ibid art 90(2). 166 ukmsa, pt iii, s 49(1); bmsa, pt iii, s 74. 167 smsa, pt iii, s 48. 168 Ibid; see also Maritime and Port Authority of Singapore, ‘Revised Safe Manning Requirements for Singapore Ships’ Shipping Circular to Shipowners (19 December 2013) No 22 of 2013, para 1. 169 Cartner, Fiske, and Leiter (n 2) 211.

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for training and qualifications of the crew consistent with those found mainly in the mlc, 2006 and the 1978 stcw.170 The mlc, 2006 requires that seafarers ‘… shall not work on a ship unless they are trained or certificated as competent or otherwise qualified to perform their duties’.171 The shipmaster must make this determination in accordance with specific training and qualifications rules found in the 1978 stcw.172 For example, officers in charge of navigational watches on ships must be familiar with precautions for the protection and safety of passengers in emergency situations, especially through an appreciation of the procedures to be followed for rescuing persons from the sea and assisting a ship in distress.173 Furthermore, they should have specific competences concerning sar activities to (i) respond to a distress situation; (ii) implement the contents of the iamsar Manuals;174 (iii) demonstrate practical instruction or approved simulator safety training, where appropriate; (iv) ensure that a distress or emergency signal is immediately recognised; and (v) ensure that any contingency plans and instructions in standing orders are implemented and complied with.175 The duty to ensure adequate training for the shipmaster and crew in accordance with the rules found in the 1978 stcw and its Code is reflected in State practice.176 For example, under the sstcmr, the shipmaster 170 John A C Cartner, ‘The Shipmaster and the Maritime Labour Convention’ in Jennifer Lavelle (ed), The Maritime Labour Convention 2006: International Labour Law Redefined (Informa Law 2014) 54. 171 mlc, 2006, reg 1.3(1); see also ism Code, pt A, s 6.2.1, which requires the shipowner to ensure that each ship is manned with qualified, certificated, and medically fit seafarers in accordance with national and international requirements. Furthermore, the shipowner should establish and maintain procedures for identifying any training which may be required in support of the sms and ensure that such training is provided for all personnel; see ism Code, pt A, s 6.5. 172 He is responsible for ensuring that obligations set out in the convention are given full and complete effect; see stcw Code, pt A, ch i, s A-i/14(1). Special training may be required in the case of crews working on certain ships, such as oil and chemical or liquified gas tankers, which may be carrying dangerous or noxious substances; see stcw Code, pt A, ch v, ss A-iv/1 and A-v/1–2. 173 stcw Code, pt A, ch ii, tab A-ii/1. 174 The contents relevant to the shipmaster’s rendering of assistance in the iamsar Manuals are discussed in detail in Ch 3, s 3.4.1. 175 stcw Code, pt A, ch ii, tab A-ii/2. In the case of sar operations, shipmasters and chief mates may have more detailed requirements for competences; see stcw Code, ch ii, tab A-ii/2. Eg the shipmaster and chief mate should be able to coordinate an sar operation and have thorough knowledge of and ability to apply procedures contained in the iamsar Manuals. 176 btcmwr; HK Merchant Shipping (Seafarers) (Safety, Security and Designated Duties Training) Regulation sub leg aj Cap 478; Malta Merchant Shipping (Training and Certification) ­Regulations, sub leg 234.17; Singapore Merchant Shipping (Training, Certification

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should not permit a person on board the ship to perform any function or service unless they are properly certificated to do so. Failure to abide by this obligation may result in the shipmaster being found guilty of an offence, and he may be liable on conviction to a fine.177 Under the HK Safety, Security and Designated Duties Training Regulation, the same duty of the shipmaster applies, but it is extended also to the shipowner. Any shipmaster or shipowner who contravenes this obligation commits an offence and is liable on conviction to a fine and imprisonment for two years.178 Overall, the shipmaster depends on an adequately trained and qualified crew to avoid accidents at sea and respond effectively to distress situations. It is important that the shipmaster ensures that he and his crew are sufficiently prepared to manage high-pressure situations. This expertise is even more necessary when implementing risky imros, as was evidenced by the events that unfolded in the King Jacob incident.179 For example, a crew member who is not familiar with emergency procedures may threaten the stability of a rescue, consequently hindering the shipmaster’s ability to effectively exercise the duty to render assistance. As noted above, proper training of crew is regulated by the mlc, 2006, which also prohibits a seafarer from working on a ship unless he has successfully completed training for personal safety on board the ship.180 While under the btcmwr, the mmlcr, and the ukstcwr, the shipowner should ensure that crew members assigned to any Bahamian, Maltese, or UK ships possess the appropriate certificates,181 he should also provide written instructions to the shipmaster setting out policies and procedures for seafarers who are newly appointed on board the ship,182 which should include safety and security procedures and arrangements, including familiarisation with sar operations.183 The shipmaster may also be responsible for ensuring that newly employed s­ eafarers obtain such information.184 This raises the question should training required by the mlc, 2006 include measures to deal with imros? imros have become increasingly common in

177 178 179 180 181 182 183 184

and Manning) Regulations (31 January 2001) (sstcmr), ch 179, ss 74, 100, and 216; ukstcwr; Maritime Traffic Law of China, ch iii, art 7; mimr, ch 7, s 7.41. sstcmr, pt vii, s 22. Ibid pt 4, s 17(2). Ch 1, s 1.3. mlc, 2006, reg 1.3(2). btcmwr, pt iii, s 23(1); mmlcr, pt iii, art 30(1)(a); ukstcwr, pt 5, s 51. btcmwr, pt iii, s 23(1)(a); mmlcr, pt iii, art 31(1); ukstcwr, pt 5, s 51(4). btcmwr, pt iii s 23(4); mmlcr, pt iii, art 31(2); ukstcwr, pt, s 51(5)(a)(ii). btcmwr, pt iii, s 23(5); mmlcr, pt iii, art 31(3); ukstcwr, pt, s 51(6).

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certain regions where mass irregular migration by sea occurs.185 Considering this reality, it may not be unreasonable to argue that shipmasters, particularly those who frequently navigate through such regions, need to ensure a level of preparedness on the part of the crew to effectively contribute to an imro. This approach is suggested by P&I Clubs, as well as shipping industry organisations such as the ics.186 Furthermore, shipowners have complained that seafarers have been refusing to man ships sailing in active migration routes due to the increased risks of encountering rescue operations.187 One possible remedy to this problem would be to ensure that the proposed training enables crews to deal with imros.188 For example, additional training may be given for the crew to embark and attend to large numbers of rescuees as suggested in the 2015 ics Guidance.189 4.2.1.2.c Labour and Living Conditions States are required to take appropriate measures to ensure proper labour and living conditions for the crew.190 The mlc, 2006 provides seafarer labour standards to be imposed by States, including employment conditions, accommodation, and health protection.191 Under the mlc, 2006, the day-to-day responsibilities to implement occupational health, safety, and welfare standards lie with the shipmaster,192 who is considered to be an integral part of the mlc’s enforcement.193 The mlc, 2006 requires States to ensure that the crew’s hours of work or rest are regulated, and to establish the maximum hours of work or minimum hours 185 Ch 3, ss 3.4.1.1–3.4.1.2. 186 Ch 1, s 1.2. 187 Ibid. 188 This approach is reflected in the advice given by international leading law firms; see Norton Rose Fulbright, ‘The Rescue of Migrants at Sea – Obligations of the Shipping Industry’ accessed 20 December 2018. 189 Ch 1, s 1.3. 190 unclos, Art 94(3)(b). 191 mlc, 2006, Preamble; see further Paul J Bauer, ‘The Maritime Labour Convention: An Adequate Guarantee of Seafarer Rights, or an Impediment to True Reforms?’ (2008) 8 ChiJIntlL 643, 646. 192 Cartner (n 170) 49. 193 Ibid; see for eg mlc, 2006, reg 2.12 which requires that: ‘[e]ach Member shall require that records of seafarers’ daily hours of work or of their daily hours of rest be maintained to allow monitoring of compliance with paragraphs 5 to 11 inclusive of this Standard…. The seafarers shall receive a copy of the records pertaining to them which shall be endorsed by the master, or a person authorized by the master, and by the seafarers’.

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of rest consistent with the mlc, 2006.194 From a review of State practice, it appears that Bahamian, HK, Liberian, Maltese, MI, Panamanian, Singaporean, and UK laws adopt the mlc, 2006 approach and require the shipmaster to ensure that hours of work or rest are observed by seafarers.195 This is a significant right bestowed on the shipmaster, as he may require a crew member to perform any hours of work necessary in the interest of the ship’s safety or to assist other ships or persons in distress.196 The shipmaster’s right is important if his crew has to work overtime to attend to the rescuees. This right is also protected under the municipal laws of major flag States.197 Accordingly, under the mlc, 2006 the shipmaster may suspend the schedule of hours of work or rest and require a crew member to perform any hours of work necessary until assistance has been rendered.198 This right is necessary for attending to urgent distress situations. However, the mlc, 2006 necessitates that: …as soon as practicable, after the normal situation has been restored, the master shall ensure that any seafarers who have performed work in a scheduled rest period are provided with an adequate period of rest.199 194 mlc, 2006, reg 2.3(5). Generally, the maximum hours of work for crew members shall not exceed fourteen hours in any twenty-four hour period; and seventy-two hours in any seven-day period; see mlc, 2006, Standard A2.3(5)(a), while minimum hours of rest shall not be less than ten hours in any twenty-four hour period; and seventy-seven hours in any seven-day period; see mlc, 2006, Standard A2.3(5)(b). 195 Bahamas Merchant Shipping (Maritime Labour Convention Regulations), 2012 (bmlcr) pt iv, s 17(1) HK Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, ch 478, sub leg af, div 7, s 22(1)-(5); Liberia Maritime Authority, ‘Terms and Conditions for Employment of Seafarers under the Maritime Labour Convention’, Marine Notice mlc-003 Rev 2/17 (Liberia Marine Notice mlc-003); mmlcr, pt iii, art 38; MI, ‘Minimum Hours of Rest’, Marine Notice No 7-0-051, Rev 11/13; Panama Merchant Authority, ‘Merchant Marine Circular No 268 on Maritime Labour Convention (mlc 2006) – Minimum Rest Hours’; Singapore Merchant Shipping (Maritime Labour Convention) Act 2014 (No 6 of 2014) (smlca), pt iv, s 16; UK Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (2018, No 58) (UK Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations), s 5(2)(a). 196 mlc, 2006, Standard A.2.3(14); see also stcw Code, ch viii, s A-viii/1(8). 197 bmlcr, pt iv, s 17(11); HK Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, pt 2, s 22(3); Liberia Marine Notice mlc-003, s 3.3.14; mmlcr, pt iii, art 42; MI, Marine Notice No 7-0-052 Rev 11/13 on Minimum Hours of Rest, s 1.4; Panama Merchant Authority Merchant Marine Circular No 268, s 5; smlca, pt iv, s 16(10); UK Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations, s 11; see also the jml, ch vi, art 68(1). 198 mlc, 2006, Standard A.2.3(14). 199 Ibid.

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As discussed above, an imro may take days to be completed.200 The reluctance of States to agree on a place of disembarkation for rescued migrants may result in a significant delay before a ‘normal situation has been restored’. Thus, whilst the mlc, 2006 gives the shipmaster the right to regulate the work undertaken by the crew, this is balanced by his duty to compensate the crew with adequate rest as ‘soon as practicable’. An important element in the maintenance of proper labour and living conditions is the shipmaster’s duty to protect the health and safety of all persons on board. This is particularly relevant in the case of imros. Vulnerable rescued migrants generally originate from States with low health standards and may require medical attention.201 It is not unusual for such persons to suffer injuries or illness, either due to exposure at sea or during the rescue itself.202 Concern for the health and safety on board a ship is reflected in municipal laws. For example, under Bahamian, Singaporean, and UK law, regulations may be imposed which require ships to carry a number of qualified doctors on board.203 Interestingly, in cases where ships are not required to carry a doctor onboard, some laws, such as the smsa204 and the ukmsa,205 require the shipmaster to make arrangements to ensure that any medical attention on board the ship is given either by him or under his supervision by a person appointed by him for the purpose. Furthermore, under the merchant shipping acts of the Bahamas, Malta, and Singapore, the relevant minister is empowered to take measures to protect the health of all persons on their registered ships and require them to carry the appropriate medicines, medical equipment, and books containing instructions and advice.206 Indeed, such Acts make it the responsibility of the shipowner and the shipmaster to ensure that the ship has the required levels of medicines and related equipment.207 Failure is treated very seriously and may result in a fine on the part of the shipmaster or the shipowner,208 as well suspension of the ship’s certificate of registry209 or the detention of the ship.210 This author a­ rgues that the level of medical preparedness also depends on the 200 Ch 1, s 1.3. 201 Ibid. 202 Ibid. 203 bmsa, pt iii, s 67(1)(a); smsa, pt iii, s 47(1)(a); ukmsa, pt iii, s 47(1)(a). 204 smsa, pt iv, s 74. 205 ukmsa, pt iii, s 53. 206 bmsa, pt iii, s 122(1); mmsa, pt iv, art 152(1); smsa, pt iv, s 73(1). 207 bmsa, pt iii, s 122(2); mmsa, pt iv, art 152(2); smsa, pt iv, s 73(2). 208 mmsa, pt iv, art 152(2); smsa, pt iv, s 73(2). 209 bmsa, pt iii, s 122(3); mmsa, pt iv, art 152(3). 210 smsa, pt iv, s 73(3).

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particular circumstances of the ship’s route. It may be reasonable that if the ship passes through active migration routes,211 the level of medical preparedness should be higher than on other routes, as this would enable the shipmaster to better deal with the high risk of medical problems presented by rescuees. Related to the question of health is the duty to ensure that ships have occupational health and safety hazard protection. This may include dangers affecting members of the crew when rendering assistance and safety hazards encountered either during the operation itself or when rescuees are on board, such as in the case of infectious diseases.212 It is therefore essential that a ship’s occupational health and safety policy cover problems related to rescue operations and embarkation of rescuees. State parties to the mlc, 2006 are obliged to specify the duties of the shipmaster213 when implementing: …on-board programmes for the prevention of occupational accidents, injuries and diseases and for continuous improvement in occupational safety and health protection … taking account of preventive measures, including engineering and design control, substitution of processes and procedures for collective and individual tasks, and the use of personal protective equipment…214 It is the duty of the shipmaster to implement the above-mentioned onboard programmes. This rule is reflected in the mmlcr215 and the Liberia Maritime Authority Marine Notice mlc-005,216 which require the shipowner to ensure that the occupational health and safety programme imposes responsibility on the shipmasters for its implementation and compliance. Interestingly, HK law requires safety officials on HK-registered vessels to form part of a safety committee that must be chaired by the shipmaster.217 211 Ch 1, s 1.2. 212 Ibid. 213 mlc, 2006, Standard A4.3(2)(c); see also ism Code, pt A, s 9.1 which provides that the vessel’s sms should include procedures ensuring that non-conformities, accidents, and hazardous situations are reported to the shipowner, investigated, and analysed with the objective of improving safety and pollution prevention. 214 mlc, 2006, Standard A4.3(1)(c). 215 mmlcr, pt v, art 116(a). 216 Liberia Maritime Authority, ‘Health and Safety Protection, Accident Prevention, Medical Care, Welfare and Social Security Protection of Seafarers under the Maritime Labour Convention (mlc), 2006’, mlc-005 Rev 04/18, paras 3.3.10(b) and (c). 217 Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation, ch 478, sub leg R, pt ii, s 4(1)(a) and 1(c); see also s 6(d).

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Under unclos Article 98(1), the shipmaster is required to render assistance only, if such can be done without causing serious danger to the crew.218 This obligation may be severely tested in the face of imros; bad weather conditions or the boarding of migrants may expose the crew to health and safety risks.219 It is therefore possible to argue that when implementing health and safety programmes, as required under the mlc, 2006, the shipmaster should ensure a level of preparedness which enables the crew to deal with health hazards and medical or safety problems that accompany rescue operations, such as tending to injuries incurred in the operation or dealing with medical problems of rescuees.220 4.2.1.3 Security Safety and security regimes are complementary. Both address the protection of ships, passengers, crew, cargo, and the marine environment. The list of measures States are required to take under unclos Article 94(3) to ensure safety at sea is considered to be non-exhaustive.221 Thus, although not explicitly referenced in unclos, security measures should also be considered by States when implementing their duties under Articles 94(3) and (4). Security measures help to protect against unlawful and deliberate acts against ships, passengers, and crew and are hence essential to the preservation of life.222 The shipmaster’s duty to protect the security of his vessel is also found in municipal laws. Whilst most empower the shipmaster generally to maintain order, the extent of these powers vary. In the case of the lml223 and the mima,224 the shipmaster is required to take all such steps as are necessary and appropriate to maintain order and discipline. Similar powers are granted to the shipmaster under the mmsa, under which he has the authority to enforce obedience to his lawful commands for the navigation and management of his ship and the preservation of good order on board.225 Significantly, the Act s­ pecifically 218 Ch 3, s 3.2.2.3.a. 219 Ch 1, s 1.3. 220 This is also advised under various soft law instruments regulating the shipmaster’s duty to render assistance in imros; see Ch 3, s 3.4.1.2. 221 This is evidenced by the use of the phrase ‘inter alia’ in the drafting of unclos, Art 94(3); see further Guilfoyle, ‘Part vii High Seas’ (n 21) 711. 222 Proshanto Muhkerjee and Maximo Quibranza Mejia Jr, ‘The isps Code: Legal and Ergonomic Considerations’ in Maximo Quibranza Mejia Jr (ed), Contemporary Issues in Maritime Security (World Maritime University Publications 2002) 33–34. 223 lml, ch 10, s 296(2). 224 mima, ch 8, pt ii, s 811(b). 225 mmsa, pt iv, art 169(1).

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grants the shipmaster the power to ‘…arrest and confine, or cause the arrest and confinement of, any person on board his ship in [a] reasonable manner and for such time as may be reasonable in the circumstances’.226 These powers to arrest or confine are also provided for under the cmc,227 the smsa,228 and the ukmsa.229 Whilst the pmlc grants the shipmaster the power to arrest the alleged offenders,230 it also grants him further authority, as he is considered to represent ‘public authorities’ of Panama and may: …impose any criminal penalties on any person who disturbs the peace, commits any disciplinary offense, or refuses or fails to provide any services corresponding thereto on board the vessel, as prescribed by the law or regulations.231 In imros, security issues often arise, and this has become more pressing in the face of increased terror attacks. Problems of security and order may arise when the shipmaster takes on board rescuees, particularly when large numbers are involved.232 The following sections discuss the role of the shipmaster in the implementation of measures to suppress unlawful acts against the safety of navigation and to ensure security on ships during imros. 4.2.1.3.a Suppression of Unlawful Acts against the Safety of Navigation The 1988 sua was adopted as a response to the 1985 Achille Lauro hijacking,233 and aimed to ensure that appropriate action is taken against persons who 226 227 228 229 230

Ibid art 169(2). cmc, ch iii, s 2, art 36. smsa, pt iv, s 94. ukmsa, pt v, s 105. plmc, title 1, ch 1, s 5, art 32(3). In such cases, the shipmaster should also provide a report of the facts concerning the incident and deliver the alleged offenders to the competent authority. 231 plmc, title 1, ch 1, s 5, art 32(2). 232 Ch 1, s 1.3. 233 On 7 October 1985, the Italian-registered cruise liner, the Achille Lauro, was sailing from Alexandria to Port Said when it was seized by a group of men who formed part of the Palestine Liberation Front. The hijackers secretly boarded the vessel while in port in Genoa and succeeded in smuggling onboard explosives and several automatic weapons. The men took control of the ship and held passengers aboard hostage demanding the release of 50 Palestinians prisoners by Israel. After their demands had not been met, they killed and threw overboard an American-Jewish passenger; see Christopher Joyner, ‘Suppression of Terrorism on the High Seas: The 1988 imo Convention on the Safety of Maritime Navigation’ (1989) 19 IsraelYBHumRts 343, 343; Helmut Tuerk, ‘Combating Terrorism at Sea – The Suppression of Unlawful Acts Against the Safety of Maritime Navigation’ (2008)

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commit offences against the safety of navigation. These crimes are listed in Article 3 and include the seizure of the ship by force,234 acts of violence against persons on board ships,235 the placing devices on board a ship which are likely to destroy or damage it,236 and damaging or interfering with the operation of any maritime navigational facilities of the ship.237 Attempts or complicity to commit any of the 1988 sua Article 3 offences constitute a crime under the convention.238 The 1988 sua Article 6 requires State parties to exercise jurisdiction over offences listed in Article 3 of the convention in the following cases: i. [t]he offence is committed against or on board a ship flying the flag of the State at the time when such an offence is committed,239 ii. [t]he offence is committed in the territory or territorial sea of that State,240 or iii. [t]he offence is committed by a national of that State.241 Moreover, a State party also has the option to exercise jurisdiction over any offence when: i. [t]he offence is committed by a stateless person who has their habitual residence in that State,242 ii. [d]uring the commission of the offence a State national is seized, threatened, injured, or killed,243 or iii. [t]he offence is committed to compel that State to do or abstain from doing any act.244 From a review of these provisions, it may be argued that the criteria for the exercise of jurisdiction over any of the offences listed in Article 3 of the ­convention must reflect a jurisdictional nexus with the State concerned, for 15 UMiamiIntL&CompLRev 337, 338; Md Saiful Karim, Maritime Terrorism and the Role of Judicial Institutions in the International Legal Order (Brill Nijhoff 2016) 7; Natalie Klein, Maritime Security and the Law of the Sea (oup 2012) 148; Kamal-Deen Ali, Maritime Security Cooperation in the Gulf of Guinea: Prospects and Challenges (Brill Nijhoff 2015) 188. 234 1988 sua, Art 3(1)(a). 235 Ibid Art 3(1)(b). 236 Ibid Art 3(1)(d). 237 Ibid Art 3(1)(e). 238 Ibid Art 3(2). For a discussion of the degree of support or complicity necessary to have committed an offence under Art 3 of sua, see Francesco Francioni, ‘Maritime Terrorism and International Law: The Rome Convention of 1988’ (1988) 31 gyil 263, 270–271. 239 1988 sua, Art 6(1)(a). 240 Ibid Art 6(1)(b). 241 Ibid Art 6(1)(c). 242 Ibid Art 6(2)(a). 243 Ibid Art 6(2)(b). 244 Ibid Art 6(2)(c).

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e­ xample, flag or territory.245 In cases in which Article 6 applies and the offender is found in the territory of a State party, the latter has a positive duty to extradite the offender.246 However, in circumstances in which the State does not extradite, it must submit the case for prosecution to its appropriate authorities.247 The shipmaster may deliver to the authorities of a 1988 sua State party any person he has reasonable grounds to believe has committed any of the offences under the convention.248 He is required, whenever practicable and if possible before entering the territorial sea of the receiving State, to give notification of his intention to deliver such persons and to provide reasons for such a delivery.249 The receiving State then has an obligation to accept the delivery of such persons,250 or it may request the flag State to accept delivery of that person.251 It is possible that rescuees may commit offences listed in the 1988 sua Article 3. The shipmaster may be faced with similar security concerns that emerged in the Achille Lauro case.252 Rescuees may be armed or smuggling weapons, or possibly connected to terrorist groups.253 Once on board, they may penetrate restricted areas of the ship and cause damage to the ship or its equipment. Desperate and frustrated rescuees may threaten to use violence against the shipmaster and crew if their demands are not met; if, for example, a request for disembarkation in a particular place is not granted or is not acceptable. In the mv Tampa incident, the rescuees threatened to take over the vessel if the shipmaster disembarked them in Indonesia.254 More recently, several imros conducted by commercial vessels escalated into serious safety and security incidents for the shipmasters and crews. In July 2018, the shipmaster of the Italian-registered Vos Thalassa rescued more than 245 David Freestone, ‘The 1988 International Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’ (1988) 3 ijecl 305, 309–310; Kraska and Pedrozo (n 40) 810–812. 246 1988 sua, Art 10(1); see further Jan Engel de Boer, ‘The imo: Maritime Terrorism/Security and Global Ocean Governance’ in David Joseph Attard (ed), The imli Treatise on Global Ocean Governance Volume iii: imo and Global Governance (oup 2018) 154. 247 1988 sua, Art 10(1). 248 Ibid Art 8(1). 249 Ibid Arts 8(2) and 8(4). 250 Except where the receiving State has grounds to consider the convention inapplicable in relation to the acts giving rise to the delivery; see 1988 sua, Art 8(3). 251 1988 sua, Art 7(5). 252 See page 155, fn 233. 253 Ibid. 254 Ch 1, s 1.2.

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sixty migrants off Libya.255 When he reverted to the Libyan coastguard to transfer the rescuees, they ‘started to threaten the crew, surrounding and pushing them and making ‘“cut your throat” gestures’.256 Consequently, the vessel returned to its position and reported the incident to Rome’s rcc.257 The situation escalated, with the migrants threatening to take over the vessel, which led to the intervention of the Italian coastguard and eventual transfer of the migrants to an Italian naval vessel.258 Following disembarkation in Italy, several migrants where questioned by the Italian police.259 The shipmaster and crew of the Italian-registered Grande Tema faced similar circumstances in December 2018. This incident, however, did not involve rescued migrants but stowaways.260 Four stowaways threatened the shipmaster and crew, requiring them to lock themselves on the bridge.261 It was reported that the stowaways demanded the shipmaster sail close to the British coast so that they could jump off the vessel and swim ashore.262 The shipowner Grimaldi Lines reported as follows: [T]hey managed to get whatever they could find on the vessel – pieces of iron tubes … and they were using them in order to threaten. It is a small group but obviously you can understand that it could be scary for the crew members.263 255 ‘Italy Stops with Migrants, Turns Up the Pressure on the EU’ The Times of Malta (Birkirkara, 10 July 2018); Nick Squires, ‘Italy Intensified Campaign Against Migrants by Refusing Access to Merchant Vessel Involved in Rescue’ The Telegraph (London, 10 July 2018). The Vos Thalassa was involved in a similar migrant rescue incident in 2017, where the shipmaster was confronted by rescuees who became threatening and aggressive; see Ch 5, s 5.2.3.2.a. 256 Alice Cuddy, ‘Italian Coast Guard Intervenes in Migrant Rescue “To Save Crew”’ Euronews (Lyon, 11 July 2018) accessed 29 December 2018. 257 Ibid. 258 ‘Italy Accuses Migrants of Hijacking Rescue Ship off Libya’ bbc News (London, 12 July 2018). 259 Tom Kington and David Charter, ‘Mutinous Migrants Threaten to Kill Italian Crew After Rescue’ The Times (London, 11 July 2018). 260 Peter Stubley, ‘Stowaways Abroad Ship in Thames Estuary “Threaten Staff with Iron Bars”’ The Independent (London, 21 December 2018) accessed 29 December 2018. 261 Ibid. 262 Hayley Dixon and Jamie Merrill, ‘Special Forces Retake Cargo Ship After Stowaways Threatened Staff’ The Telegraph (London, 22 December 2018). 263 Caroline Davies, Nadeem Badshah, and Mattha Busby, ‘Margate: Special Forces Rescue Stowaway-held Ship’ The Guardian (London, 22 December 2018).

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The vessel eventually docked in Tilbury, where Special Forces boarded the vessel and detained the stowaways, who were later charged with unlawful violence under the Public Order Act.264 Therefore, the application of the 1988 sua may be relevant for the shipmaster, particularly when involved in imros. A rescuee who commits any of the offences under the convention will trigger its application. This provides the opportunity for the shipmaster to address the security threat by delivering the offender to a State party to the 1988 sua, particularly if it is not practical to keep the offender aboard until he can be delivered to the flag State.265 Upon disembarkation, the offender will either be extradited to the State party requesting extradition, such as the flag State, or prosecuted in the State where he was disembarked.266 The latter occurred in the case of the Palau-registered El Hiblu 1 hijacking. On 27 March 2019, the vessel was sailing from Istanbul to Libya when a military aircraft requested the shipmaster to attend to a distress situation.267 He embarked more than ninety migrants and proceeded towards his next port of call in Tripoli.268 On approaching the Libyan coast, the migrants became alarmed, screaming at the shipmaster to turn his vessel around.269 The situation soon escalated, with some migrants threatening the shipmaster and crew with heavy metal tools.270 Describing the situation as one of ‘horror’, the shipmaster reported that the migrants began to ‘…beat and smash the ship and threatened that they would leave the ship in pieces’271 if the vessel continued to Libya. Under duress and fearing for the safety of his vessel and crew, the shipmaster sailed towards Europe. He subsequently informed the Libyan authorities that the migrants ‘…are going to kill me and kill us if we return. We are leaving’.272 As the vessel headed north, the then Italian minister of the interior promptly informed the media that the vessel would not be allowed to enter Italian 264 Public Order Act 1986, pt i, art 3(7) (poa 1986); see also ‘Thames Estuary Cargo Ship Stowaways Detained’ bbc News (London, 22 December 2018). 265 Joyner (n 233) 361–362; Freestone (n 245) 313–314. 266 1988 sua, Art 10. 267 ‘Captain Feared Death in Migrant Hijack at Sea’ The Malta Independent (St.Julian’s, 29 March 2019). 268 Matthew Vella, ‘Tanker Overpowered by Migrants Who Refused to Go Back to Libya, in Malta’ Malta Today (San Gwann, 28 March 2019). 269 ‘Rescued Migrants Hijack Merchant Ship Near Libya – Reports’ bbc News (London, 27 March 2019). 270 ‘Hijacked Captain Recalls “Horror” in the Mediterranean Sea as Migrants Took Over Ship’ The Guardian (London, 30 March 2019). 271 Ibid. 272 Ibid.

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ports.273 The vessel then proceeded to Malta, and the El Hiblu 1’s shipmaster made contact with the authorities when it was some 30 nm away from the Island.274 He repeatedly informed them that he was not in control of the vessel and that he and his crew were being threatened by a number of migrants to proceed to Malta.275 The vessel was stopped on the high seas, where afm boarded and handed over control to the shipmaster.276 Although the El Hiblu 1 was initially refused entry into Malta’s territorial sea,277 the vessel was later allowed to disembark the rescuees.278 Three of the migrants were arrested and charged inter alia with the 1988 sua offence of unlawful seizure of a ship, which is considered both ‘an act of terrorism’ and ‘terrorist activity’ under Maltese Criminal Code279 Articles 328A(2)(e) and (4)(i)(i) respectively.280 If found guilty, the offenders may face a prison sentence of seven years to life.281 It is significant that a number of major flag States have taken steps to implement the 1988 sua provisions into their domestic legal systems. Malta has criminalised the offences listed in Article 3 under its domestic law.282 Similarly, Liberia has criminalised certain 1988 sua–related offences under its Penal Code.283 Other States, such as Singapore and the MI, have more detailed legislation implementing sua rules. Under the Singapore Maritime Offences Act,284 the 1988 sua offences are criminalised in Sections 3–7. The Act provides that the shipmaster of a Singaporean-flagged ship may deliver to the authorities of any party to the 1988 sua any person on board the ship who he has reasonable grounds to believe has committed any offences under the convention.285 Furthermore, in cases where the shipmaster of a Singaporean ship intends to deliver any person on board the ship who has allegedly committed any of the 273 ‘Rescued Migrants Hijack Merchant Ship off Libya’ Reuters (London, 27 March 2019). 274 doim, ‘Press Release by the Armed Forces of Malta’ (28 March 2019) accessed 1 April 2019. 275 Ibid. 276 Ibid. 277 Ibid. 278 Ibid. 279 Chapter 9 of the Laws of Malta (Malta Criminal Code). 280 ‘Three Teens Charged with Terrorist Activity in Ship Hijacking Case’ The Times of Malta (Birkirkara, 30 March 2019); ‘3 Teenage Migrants are Charged in Malta with Hijacking Ship at Sea’ The New York Times (New York, 31 March 2019). 281 Malta Criminal Code, pt ii, title ix, sub-title iv A, art 328A(3). 282 Ibid arts 328A(2)(e) and 328A(4)(i)-(p). 283 Title 26, ch 14, s 14.54 and ch 15, ss 15.32–15.34. 284 Ch 170B, 2003, ss 3–7. 285 Ibid s 8(2).

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o­ ffences set out in the 1988 sua to Singapore or any other State party to sua,286 he must notify the appropriate officer in that State of his intention to deliver that person and of his reasons for intending to do so.287 In such cases, the shipmaster is to make oral or written statements relating to the alleged offence and deliver any other evidence relating to the offence that may be in the shipmaster’s possession.288 Failure to do so may result in an administrative fine,289 unless the shipmaster can prove that the giving of a notification would endanger the safety of the ship.290 Under the mima, any marine offence or criminal act must be reported by the shipmaster or shipowner to the maritime administrator.291 If the marine offence or criminal act occurs in the jurisdiction of a State or territory signatory to the 1988 sua other than the MI, the administrator may waive flag State jurisdiction and allow the State or territory to assert jurisdiction over the case.292 If such offences occur on the high seas, the maritime administrator must notify and offer jurisdiction to the State governments of the victim and the accused.293 If no State accepts jurisdiction, the maritime administrator must notify the minister of justice.294 After an investigation to determine whether a crime has occurred, the ministry of justice will make arrangements to extradite or prosecute the accused.295 4.2.1.3.b Ship and Port Facilities The September 11, 2001, terror attacks have generally resulted in much stricter security measures imposed on ships and in ports facilities.296 The international community was concerned that there would be follow-on attacks in the 286 Ibid s 8(3). 287 Ibid s 8(4). Any notification must be made: (a) before the ship in question enters the territorial waters of that country; or (b) if in the circumstances it is not reasonably practicable to comply with (a), as soon as reasonably practicable after the ship has entered the territorial waters of that country; see the Singapore Maritime Offences Act, s 8(5). 288 Singapore Maritime Offences Act, s 8(6). 289 Ibid s 8(7). 290 Ibid s 8(8). 291 mima, ch 7, pt i, s 711(1). 292 Ibid s 711(2). 293 Ibid s 711(3). 294 Ibid. 295 Ibid. The maritime administration may choose to waive the jurisdiction of the MI where such waiver is deemed necessary and appropriate to the prosecution of a marine offense or criminal act; see mima, ch 7, pt 1, s 711(4). 296 Justin S C Mellor, ‘Missing the Boat: The Legal and Practical Problems of the Prevention of Maritime Terrorism’ (2002) 18 AmUIntlLRev 341, 341–343.

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maritime domain.297 In response to these concerns, imo advanced two further maritime security initiatives: (i) the adoption of the Protocol of 2005 to the 1988 sua298 and (ii) an amendment to the 1974 solas to include a new section in Chapter xi-2 on Special Measures to Enhance Maritime Security which incorporates security regulations and requirements for ships and port facilities, centred on the isps Code.299 Due to the nature of imros, it is useful to analyse the shipmaster’s role in the implementation of ship security rules found in the isps Code within the context of rescue operations. The isps Code provides an international framework to detect and prevent security incidents affecting ships and port facilities.300 It is divided into two main parts: (i) a mandatory Part A which sets out requirements for governments, port authorities and shipping companies; and (ii) a non-mandatory Part Bwhich provides guidance on how the requirements in Part A of the Code can be met.301 Due to the varying types and sizes of ships and port ­facilities, the 297 De Boer (n 246) 160–161. 298 imo, ‘Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’ (adopted 14 October 2005, entered into force 28 July 2010) imo Doc LEG/CONF.15/21 (2005 sua). The 2005 sua increased the number of offences considered to be unlawful under the 1988 sua and included a new procedure for the boarding of foreign-flagged vessels on the high seas by officials of another State party where there are reasonable grounds to suspect that the ship has committed one of the offences under the 2005 sua; see 2005 sua, Arts 3bis and 8bis. See further De Boer (n 246) 149–160; Kraska and Pedrozo (n 40) 820–853; Klein (n 233) 170–184; Robert C Beckman, ‘The 1988 sua Convention and 2005 sua: Tools to Combat Piracy, Armed Robbery, and Maritime Terrorism’ in Rupert Herbert-Burns, Sam Bateman, and Peter Lehr (eds), Lloyd’s miu Handbook of Maritime Security (crc Press 2009) 191–196. 299 James Kraska, ‘Ship and Port Facility Security’ in David Joseph Attard (ed), The imli Manual on International Maritime Law Volume iii: Marine Environmental Law and Maritime Security Law (oup 2016) 443–444; Klein (n 233) 158. 300 isps Code, pt A, s 1.2.1; see also Chris Trelawny, ‘The imo: Maritime Security an Essential Feature for Sustainable Maritime Development and Global Ocean Governance’ in David Joseph Attard (ed), The imli Treatise on Global Ocean Governance Volume iii: imo and Global Governance (oup 2018) 106–107. The rules of the isps Code have been incorporated into the municipal laws of major flag States; see Bahamas Ship and Port Facility (Security) Regulations, 2016 (bspfsr); Port Facility Security Rules of the People’s Republic of China (issued by the Ministry of Transport on December 17, 2007, and amended via the Decision of the Ministry of Transport on Amending the Port Facility Security Rules of the People’s Republic of China (No 68 [2016], mot) on September 2, 2016); HK Merchant Shipping (Security of Ships and Port Facilities) Ordinance, ch 582 (hksspo); HK Merchant Shipping (Security of Ships and Port Facilities) Rules, ch 582, s 6 (hksspfr); Malta Port Security Regulations, sub leg 499.35 (mpsr); UK Ship and Port Facility (Security) Regulations 2004 (2004, No 1495). 301 Kraska (n 299) 444; Klein (n 233) 158. As noted by Kraska and Pedrozo, certain States have also incorporated provisions of Part B of the ISPS Code into their domestic laws; see ­Kraska and Pedrozo (n 40) 383.

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isps Code does not indicate specific measures which each ship or port facility should adopt. This maritime security instrument instead provides a standarised international framework which allows flag States to assess security incidents by setting appropriate security levels and measures respond to and counter threats. The isps Code is an important instrument to which the shipmaster is subject, and he is responsible for implementation of certain rules found therein.302 In turn, the shipowner should ensure that the shipmaster is given the necessary support to carry out his duties under the isps Code.303 The shipmaster needs to demonstrate a comprehensive understanding of isps Code rules and regulations; for example, the setting of different security levels which reflect the degree of risk a security incident would present to either port facilities or ships entering or scheduled to enter port facilities.304 If there is a significant security risk posed by rescuees on board his vessel, the shipmaster may need to instruct the relevant flag State authorities, who will then set an appropriate security level for the ship and communicate it to relevant port authorities.305 Furthermore, under the isps Code, State are also required to appoint persons to designated roles, including the ship security officer,306 the company security officer,307 and the port facility security officer.308 The shipmaster may need to interact and liaise with these individuals, some of whom may be accountable to him.309 If the vessel has a small crew, the shipmaster could be designated as the sso. This is the position reflected in Liberian law, however, if the sso is not the shipmaster, he is accountable to the shipmaster.310 Under other ­jurisdictions,

302 303 304 305 306

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308 309 310

Cartner, Fiske, and Leiter (n 2) 98–99. isps Code, pt A, s 6.1. Ibid ss 2.1.9–2.1.11. Ibid s 4.1; see further Kraska and Pedrozo (n 40) 387–389. Hereafter referred to as the sso. The sso refers to the person on board the ship, accountable to the shipmaster and designated by the company as responsible for the security of the ship, including implementation and maintenance of the ssp and for liaison with the company security officer and port facility security officers under the isps Code, pt A, s 2.6. Hereafter referred to as cso. The cso refers to the person designated by the company for ensuring that a ship security assessment is carried out; that an ssp is developed, submitted for approval, and thereafter implemented and maintained; and for liaison with port facility security officers and the sso under the isps Code, pt A, s 2.7. Hereafter referred to as the pfso. The pfso refers to the person designated as responsible for the development, implementation, revision, and maintenance of the pfsp and for liaison with the sso and cso under the isps Code, pt A, s 2.1.8. Eg as in the case of the sso when implementing the ship security plan discussed below. Liberian Maritime Authority, ‘International Ship & Port Facility Security Code (isps Code)’, Marine Notice, isp-001, 06/12’ (Liberia Marine Notice isp-001), s 2.8.

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such as the MI, it is advised that shipmaster assume the role of the sso once he has completed an approved training course on the isps Code.311 Another important aspect of the isps Code is the development of ssps for vessels and a port facility security plan312 for port areas.313 The ssp ensures the application of measures designed to protect persons on board, cargo, cargo transport units, the ship’s stores, or the ship from the risks of a security incident.314 The ssp must be approved by the flag State and carried on board at all times.315 As observed by Kraska, the ssp should clearly state ‘the master’s plenary authority’ over the vessel,316 in particular his overriding authority and responsibility to take decisions with respect to the safety and security of the ship and to request the assistance of the shipowner or of any contracting State as may be necessary.317 The shipmaster together with the sso should ensure proper ssp implementation, which may need to consider risks associated with or specific to imros, such as those identified in the 2015 ics Guidance.318 The ssp may require the implementation of additional security procedures such as preventing access to sensitive or dangerous areas of the ship, searching rescued persons and confiscating dangerous weapons or items, and establishing watches and plans for monitoring those on board.319 Furthermore, under the stcw Code, the shipmaster and crew should be trained and have minimum standards of competences in security awareness and recognition of maritime security threats. They should be able to follow isps Code procedures and principles.320 This competence is important for the shipmaster when he has to rely on crew members to assess and address security risks associated with imros. Under the isps Code, the shipmaster may be tasked with drawing up the ship’s declaration of security,321 which is an agreement reached between a ship and either a port facility or another ship with which it interfaces, specifying the security measures each will implement.322 This rule appears to be reflected in  State practice. Under the HK law, the shipmaster has a responsibility to 311 The Marshall Islands ‘International Ship and Port Facility Security (isps) Code’, Marine Notice No 2-011-16, s 13.2.1. 312 Hereafter referred to as the pfsp. 313 isps Code, pt A, s 16. 314 Ibid s 2.4. 315 Ibid s 9.1. 316 Kraska (n 299) 450. 317 isps Code, pt A, s 6.1. 318 Ch 4, s 4.2.1.1. 319 2015 ics Guidance, s 6.1; see also Ch 4, s 4.2.1.1.b. 320 stcw Code, pt A, ch vi, s A-vi/6(4). 321 Hereafter referred to as dos; isps Code, pt A, s 5.2.1. 322 isps Code, pt A, s 5; see further Kraska and Pedrozo (n 40) 389–392.

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­complete the dos,323 and he must keep it on board during the next ten calls of the ship at any port facility.324 Maltese legislation requires that the dos should be completed, signed, and dated by the shipmaster or sso.325 Under the Bahamian law, it is the responsibility of the shipmaster to request that a dos be completed by the pfso, or the port facility where no pfso has been appointed, prior to entering a port or in a port which is not compliant with the isps Code.326 If such a request is refused or disregarded, the shipmaster will have to draw up the dos himself,327 and he must ensure that in either case the declarations of security are retained on board the ship for a period covering at least the last ten port calls.328 The shipmaster’s authority, which should be expressly provided for in the ssp, is recognised and protected under most State laws.329 Like the ism Code,330 regulation 8 provides that the shipmaster may not be constrained by the shipowner, the charterer, or any other person from taking or executing any decision which, in his professional judgement, is necessary to maintain the safety and security of the ship.331 This is complemented by other provisions in the isps Code, which allow the shipmaster, even at the highest security level,332 to seek clarification of or amendments to the instructions of the persons responding to a security incident or threat thereof if there are reasons to believe that his compliance with such instructions may endanger the safety of his ship.333 These powers strengthen the position of the shipmaster when rendering assistance, which may require him to make important decisions effecting ship security. If, for example, the shipowner refuses to authorise the rescue operation because it appears to him to be too risky, the isps Code gives the 323 324 325 326 327 328 329 330 331 332

333

hksspfr, pt 2, s 21(1). Ibid, s 21(2). These responsibilities may also be undertaken by the sso. mpsr, art 13(1). bspfsr, pt v, s 5(1)(a). Ibid pt v, s 5(1)(b). Ibid s 5(1)(c). hksspo, s 15; sssr, ch xi-2, reg 8; bspfsr, pt ii, s 11(2)(b); Liberia Marine Notice isp-001, s 3.9; MI, ‘International Ship and Port Facility Security Code’ Marine Notice No 2-011-16, s 8.2.1; see also s 13.2.1. Ch 4, s 4.2.1.1. In cases of a conflict between safety and security requirements, the shipmaster will give effect to those requirements necessary to maintain the safety of the ship; see further 1974 solas, anx ch xi-2, reg 8-2. The highest security level in the isps Code is identified as security level 3: ‘... the level for which further specific protective security measures shall be maintained for a limited period of time when a security incident is probable or imminent, although it may not be possible to identify the specific target’; see isps Code, pt A, s 2.1.11. isps Code, pt B, s 4.10.

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shipmaster the ultimate overriding responsibility to decide.334 It also empowers the shipmaster to take any actions necessary for the preservation of security once rescuees have been embarked. 4.2.2 Coastal State Jurisdiction In addition to flag State jurisdiction, the shipmaster may find himself subject to coastal State jurisdiction. Measures taken by the coastal State may have a bearing on the shipmaster’s duty to render assistance. This necessitates an examination of the position of the shipmaster in rescue operations when his ship enters the (i) internal waters, (ii) territorial sea, and (iii) contiguous zone of a coastal State. 4.2.2.1 Internal Waters When a ship enters the internal waters of a coastal State, it subjects itself to the sovereignty of that State.335 Accordingly, the coastal State is entitled to enforce its laws against the ship and those on board, including the shipmaster.336 One may ask whether in this case the coastal State is obliged to have laws in place to require the shipmaster to render assistance to any person found in distress in its internal waters. Despite the wording of unclos Article 98(1), which imposes the duty to render assistance on the flag State, it would be reasonable to expect the coastal State to take such measures, through its laws, to ensure that shipmasters render assistance also in its internal waters.337 This approach is reflected in State practice; for example, the Italian Code of Navigation imposes an obligation to render assistance to a ship found it its internal waters that is in danger of being lost.338 It also states that any shipmaster who is informed of

334 Ibid pt A, s 6.1. 335 unclos, Art 2(1). Internal waters are assimilated to the territory of a State, wherein the State enjoys territorial sovereignty and may exercise prescriptive and enforcement jurisdiction. See further Churchill and Lowe (n 47) 65–66; Tanaka (n 12) 95–97; Edward D Brown, The International Law of the Sea Volume i: Introductory Manual (Dartmouth 1994) 37; Richard Barnes, ‘The International Law of the Sea and Migration Control’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff Publishers 2010) 117. 336 Churchill and Lowe (n 47) 65; Rothwell and Stephens (n 12) 58. 337 See further Ch 3, 3.2.2.3. 338 Italian Code of Navigation, pt i, bk iii, title iv, ch 1, art 489. This obligation also applies in the case of collisions, which is regulated by bk iii, title iii, art 485; see also Federal Act on the internal maritime waters, territorial sea and contiguous zone of the Russian Federation (adopted by the State Duma on 16 July 1998), art 9(3), as discussed on page 169.

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the danger must approach the ship and render assistance, provided that this does not cause serious danger to his ship, crew, and passengers and unless he is aware that assistance will be provided by others in conditions that are more favourable or similar to the ones he could offer.339 Furthermore, under unclos Article 98(2), the coastal State is required to take measures associated with the duty to render assistance, including the promotion, establishment, and maintenance of adequate and effective sar services. A manifestation of this duty is the effective operation of rccs, as discussed in Chapter 3.340 It would therefore be desirable if the coastal State would ensure that shipmasters conform with the directives and instructions of such centres in its internal waters.341 This requirement is evident in State practice, for example, in the Law of the Sea of Vietnam’s provisions regulating sar.342 In the internal waters and territorial sea of Vietnam, the State has exclusive rights in carrying out sar activities for persons and vessels in distress.343 This empowers the competent authorities to mobilise individuals and vessels operating in the maritime zones of Vietnam to assist in sar, if conditions allow and this does not cause danger to those individuals and vessels.344 Does the duty to render assistance under unclos Article 98(1) continue when the ship enters the internal waters of another State? Although the convention deals with the duty to render assistance under Part vii on the high seas, as discussed above the wording of unclos Article 98(1) does not restrict the duty to any particular area of the sea.345 It would thus be reasonable to expect the flag State obligation to persist even if the ship enters the internal waters of another State. The shipmaster’s duty to render assistance is also ­related to the question of access to a port to seek sanctuary due to force majeure or if rescuees on board result in the ship being in distress. This issue is not

339 Italian Code of Navigation, pt i, bk iii, title iv, ch 1, art 489; see also art 490, which provides that in the case of a ship in danger, the shipmaster of the assisting ship is bound, under the circumstances and within the limitations set forth in art 489 of the Code of Navigation, to attempt salvage or, if this is impossible, to rescue the persons on board. This obligation, with the same limitations imposed, exists in relation to persons in distress at risk of being lost at sea or in internal waters. 340 Ch 3, s 3.2.3.2.d.ii. 341 This position would also apply to the territorial sea; see further Ch 4, s 4.2.2.2. 342 The Law of the Sea of Vietnam (adopted on 21 June 2012, by the xiiith National Assembly of the Socialist Republic of Vietnam at its 3rd session) ch iii, art 33. 343 Ibid art 33(4). 344 Ibid art 33(5); see also the sar provisions in Canada Shipping Act, Statutes of Canada 2001, ch 26, pt 5, ss 130 (2)-(3) and 131(1)-(4) discussed on page 169. 345 Ch 3, s 3.2.2.3.

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regulated by the convention; therefore, it is necessary to refer to the customary international law examined below.346 4.2.2.2 Territorial Sea 4.2.2.2.a Innocent Passage As discussed in Chapter 3, shipmasters have a duty to render assistance to persons in distress in all maritime areas, including the territorial sea.347 This is affirmed by unclos Article 18(2), which although requires passage through the territorial sea to be continuous and expeditious, permits the shipmaster to temporarily stop or anchor, not only if the ship itself is in distress but also for the purpose of rendering assistance.348 This may apply to a shipmaster whose ship is facing a situation of distress caused by, for example, deteriorating weather conditions, or rescuees requiring urgent medical attention. In fact, there have been cases where States permitted rescuing vessels to temporarily shelter in the territorial sea on humanitarian grounds. At the end of December 2018, the vessels of two German ngos, the Sea-Watch 3 and the Sea-Eye, rescued over 80 migrants in the Mediterranean. After being stuck out at sea for weeks, conditions onboard the vessels began to deteriorate. Weather conditions became more severe, which resulted in the rescuees waiting in cramped accommodation, many suffering from dehydration and serious sea sickness. It was also reported that some of the individuals jumped overboard in an attempt to reach Malta. On 2 January 2019, Malta granted both vessels permission to enter its territorial sea to seek shelter for humanitarian reasons.349 Furthermore, in August 2019, an administrative tribunal in Lazio, overturned a law imposed by the Italian central government discussed below,350 which aimed to prevent the entry of ngo rescue migrant vessels into the Italian territorial sea. The tribunal held that the serious ­medical 346 Ch 4, s 4.3.2. 347 Ch 3, s 3.2.2.3. 348 This humanitarian exception also applies to vessels in distress in straits used for international navigation and in archipelagic waters; see unclos, Arts 39(1)(c) and 52. See further Richard A Barnes, ‘Innocent Passage in the Territorial Sea’ in Alexander Prölss (ed), The United Nations Convention on the Law of the Sea: A Commentary (CH Beck, Hart, Nomos 2017) 185–186. 349 Daren Zammit Lupi, ‘We Are Not Fish: Migrants Stranded at Sea Grow Frustrated’ Reuters (London, 4 January 2019); Kurt Sansone, ‘Sea-Watch Doctor Says Situation Is “Dire” for Stranded Migrants’ Malta Today (San Gwann, 6 January 2019); Patrick Kingsley, ‘Stranded Migrants are Finally Brought to Shore After 19 Days’ The New York Times (New York, 9 January 2019); Yannick Pace, ‘Migrant On Board Sea-Watch 3 Jumps Overboard in Attempt to Reach Malta’ Malta Today (San Gwann, 4 January 2019). 350 See pages 169–171.

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and psychological conditions of the 147 rescuees on board the ngo operated Open Arms, and permitted entry due to circumstances ‘…of exceptional gravity and urgency’.351 The shipmaster’s rendering of assistance may also be necessary to maintain proper order and safety of navigation within the territorial sea.352 Distress situations often involve unseaworthy vessels that may seriously disrupt or threaten the safety of navigation, particularly if left abandoned.353 In the interest of saving life at sea and preserving the safety of navigation, it appears reasonable that coastal States should legislate to impose on shipmasters of foreign ships an obligation to render assistance in the territorial sea. For example, under the Federal Act on the internal maritime waters, territorial sea and contiguous zone of the Russian Federation,354 foreign ships have the right to make an emergency call in the territorial sea.355 Such a call may be made if, for example, the ship has been involved in an accident that endangers its safety, crew or passengers require urgent medical assistance, and specifically for the delivery of rescuees.356 In the event of such an emergency call, the nearest harbour master may instruct other vessels in the territorial sea to assist.357 The Canadian Shipping Act358 provides more detailed obligations in this regard, requiring that in the case of a vessel in distress in ‘Canadian waters’, the Canadian sar mission coordinator may, inter alia: (a) direct all vessels within an area that the search and rescue mission coordinator specifies to report their positions; (b) direct any vessel to take part in a search for that person, vessel or aircraft or to otherwise render assistance; (c) give any other directions that the search and rescue mission coordinator considers necessary to carry.359

351 Gordon Watson, ‘Italian Court Lifts Salvini ban on Open Arms Rescue Vessel’ Newsbook (Blata L-Bajda, 14 August 2019). 352 See unclos, Art 21(1)(a), which allows the coastal State to adopt laws and regulations in conformity with the provisions of the convention and other rules of international law relating to innocent passage through the territorial sea in respect of the safety of navigation and the regulation of maritime traffic. 353 Ch 1, s 1.3. 354 Federal Act on the internal maritime waters, territorial sea and contiguous zone of the Russian Federation (adopted by the State Duma on 16 July 1998). 355 Ibid art 9(2). 356 Ibid art 9(1). 357 Ibid art 9(3). 358 Canada Shipping Act, Statutes of Canada 2001, c 26. 359 Ibid pt 5, ss 130(2)(a)-(c).

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Despite the growing trend of States to ensure that shipmasters implement the duty required under unclos Article 18(2), there is evidence that some States may use the doctrine of innocent passage to hinder the shipmaster’s duty to render assistance and the completion of imros. According to unclos Article 19(1), passage is considered innocent if it is ‘not prejudicial to the peace, good order or security of the coastal State’. The Convention also provides a list of activities which render the vessel’s passage non-innocent, in particular, the ‘loading or unloading’ of any person contrary to the immigration laws and regulations of the coastal State. In such cases, the coastal State may take the necessary steps to prevent360 or temporarily suspend passage361 considered noninnocent. These measures may include an exchange of communications requiring the vessel to leave the territorial sea, positioning of another vessel to block the ship’s passage, and under certain circumstances, the use of armed force.362 In an imro, the coastal State may choose to prevent passage if the shipmaster wishes to navigate his vessel through the territorial sea for the purpose of disembarking rescued migrants in the coastal State. This is the Italian position which in 2018–2019 prevented the passage of ngo rescue vessels through Italy’s territorial sea.363 Italy argued that these vessels are encouraging clandestine migration, which is presenting a threat to the security of Italy, thus rendering their passage non-innocent.364 Furthermore, as discussed above,365 in August 2019, Italy approved a law which allows the Italian minister of interior to limit or block the access, passage and anchoring of vessels in Italy’s territorial sea for public order or security reasons in accordance with unclos Article 360 unclos, Art 25(1). 361 UNCLOS, Art 25(3). The coastal State may temporarily suspend innocent passage on the basis of security reasons in specified areas of the territorial sea and following publication of the suspension. It should do so without discrimination in form or in fact among foreign ships. According to Barnes, suspension is possible for a wide range of security measures, including protective measures by States against vessels carrying migrants; see Barnes, ‘Innocent Passage in the Territorial Sea’ (n 348) 226. 362 Rothwell and Stephens (n 12) 233. 363 Infomigrants, ‘Italian Government Working on Decree to Stop “Security Risk” ngos’ (4 February 2019) accessed 5 March 2019. 364 Italy’s former minister of the interior was quoted as describing the passage of ngo rescue ships in Italy’s territorial sea as being ‘detrimental to the order and security of the Italian State’; see Lorenzo Tondo, ‘Italian Authorities Order Seizure of Migrant Rescue Ship’ The Guardian (London, 20 March 2019); Nick Squires, ‘Matteo Salvini Wants to Ban Migrant Rescue Vessels from Entering Italy’s Territorial Waters’ The Telegraph (London, 31 January 2019). 365 See page 168.

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19. In such circumstances, it allows for the arrest of shipmasters of these vessels who enter into Italy’s territorial sea without authorisation.366 The law also places tough administrative sanctions on violating shipmasters, where they may be subject to a fine of up to one million euro, and also have their vessel confiscated.367 Although the raison d’etre behind the law appeared to be prevention of the entry of ngo rescue vessels into Italian waters, the law applies to all vessels (except for warships or other government ships operated for noncommercial purposes) including commercial vessels.368 This author disagrees with this approach, as it may result in a violation of relevant international obligations under the 1974 solas and the 1979 sar.369 These conventions require States to assist shipmasters in delivering rescuees to a place of safety as soon as reasonably practicable.370 Preventing access to the territorial sea may ultimately inhibit the shipmaster’s ability to effectively deliver the rescuees to safety. However, the situation may be different if the rescuees present a serious threat to the national security or public health of the coastal State, for example, in cases where rescued migrants on board possess weapons or explosives or have contracted infectious and deadly diseases. In such circumstances, the coastal State may be justified in preventing the shipmaster from accessing its territorial sea but may also be required to provide the shipmaster with assistance. There is evidence that States have taken such preventive measures, for example, in the mv Western Copenhagen371 and El Hiblu 1 cases.372 Passage is further considered to be non-innocent under unclos Article 19(2)(g)373 if the shipmaster authorises the loading or unloading of any person contrary to the customs, fiscal, immigration, or sanitary rules of the coastal State. Could a coastal State rely on Article 19(2)(g) to prevent the passage of a vessel carrying rescued migrants? This author argues that it will be necessary to examine the circumstances of each case. In a rescue operation, the shipmaster may find it necessary to ‘load’ persons who find themselves in distress in the 366 ‘Italian Parliament approves Law Targeting Rescue Ships in Victory for Salvini’ The Times of Malta (Birkirkara, 6 August 2019). 367 Kurt Sansone, ‘Tough Italian Law Penalizing Migrant Rescue Vessels Concerns unhcr’ Malta Today (San Gwann, 6 August 2019). 368 Marco Manzone, ‘Sea Watch 3: Can Coastal States Limit the Right of Innocent Passage?’ International Law Office. 369 Ch 3, ss 3.2.3.1 and 3.2.3.2. 370 Ibid s 3.2.3.3.c. 371 Ch 1, s 1.3. 372 Ch 4, s 4.2.1.3.a. 373 This is contingent upon the coastal State adopting appropriate laws in relation to innocent passage in accordance with unclos, Art 21(1)(h).

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territorial sea. In this context, the coastal State should refrain from relying on the reference to ‘loading’ in Article 19(2)(g) as a legal basis to prevent innocent passage and deny the shipmaster access to the territorial sea.374 Any attempt by the coastal State to do so may conflict with the obligation of the shipmaster to provide assistance in the territorial sea affirmed in unclos, the 1974 solas, the 1979 sar, and under general international law.375 There may also be situations in which the shipmaster has already rescued persons and is required to authorise the ‘unloading’ of persons onto another vessel within the territorial sea, even if this may be contrary to the immigration laws and regulations of the coastal State. For example, this may be necessary if the safety and security of the rescuing ship requires a reduction of rescuees. 4.2.2.2.b The Exercise of Criminal Jurisdiction This section examines the right of the coastal State to exercise criminal jurisdiction over foreign ships passing through the territorial sea376 in light of ensuring that shipmasters render assistance. Criminal jurisdiction ‘should not’377 be exercised on 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, save only in specific cases, inter alia: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea.378 It may not be unreasonable to envisage that the consequences of a shipmaster’s failure to render assistance may extend to the coastal State or affect the peace of the coastal State or good order of its territorial sea;379 for example, 374 Melanie Fink and Kristof Gombeer, ‘Non-Governmental Organisations and Search and Rescue at Sea’ (2018) 4 MarSafeLaw Journal 1, 11. 375 Mark Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes’ (2002) 14 ijrl 329, 356. 376 unclos, Art 27; see further Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (Springer 2006) 247–253; John E Noyes, ‘The Territorial Sea and Contiguous Zone’ in Donald R Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (oup 2015) 101; Churchill and Lowe (n 47) 98. 377 It has be argued that the phrase ‘should not’ does not clearly prohibit the exercise of coastal State jurisdiction against other cases not explicitly provided for in UNCLOS Art 27(1), such as the failure of a shipmaster of a foreign-flagged vessel to provide assistance in the territorial sea; see Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (cup 2009) 11; Ivan A Shearer, ‘Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels’ (1986) 35 iclq 320, 327. 378 unclos, Art 27(1); see further Barnes, ‘Innocent Passage in the Territorial Sea’ (n 348) 235–356; Tanaka (n 12) 95. 379 unclos, Art 27(1)(b).

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unattended distress situations may lead to loss of life.380 Additionally, if persons in distress are stranded on unseaworthy ships, they may cause collisions and also negatively affect the good order of the territorial sea. The situation may be even more precarious if the distressed ship is located in sea lanes and traffic separation schemes in the territorial sea, particularly those used by ships carrying sensitive cargo.381 Consequently, the State may be entitled to exercise criminal jurisdiction under unclos Article 27 with respect to the failure to render assistance and arrest the shipmaster or conduct any investigation in connection with such failure. This is the position adopted, for example, under US law,382 which imposes a duty on the shipmaster to render assistance in waters subject to the jurisdiction of the US,383 including the territorial sea.384 A shipmaster who violates 46 usc § 2304(a) may be fined or imprisoned, or both.385 Moreover, it could be argued that even in the absence of specific legislation criminalising the shipmaster’s failure to render assistance in the territorial sea, the coastal State should apply general principles found in criminal law statutes against the shipmaster,386 for example, manslaughter and failure to assist a person in distress generally.387 An interesting question relates to whether the coastal State can exercise jurisdiction over a shipmaster of a foreign ship for failing to render assistance before entering the territorial sea. In this respect, it may be argued that there is a universal interest of protecting life at sea.388 Indeed, the convention requires ‘every State’ to render assistance to any person found in danger of being lost at sea,389 particularly if the persons in distress are vulnerable migrants. It has been noted by Tzevelekos and Katselli Proukaki that in light of the ­transnational 380 Martin Davies, ‘Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea’ (2003) 12 PacRimL&PolyJ 109, 127. See eg the increasing number of migrant lives lost in distress situations occurring within Libya’s territorial sea; see also European Commission, ‘EU Action in Libya on Migration’ (2017) accessed 25 April 2019. 381 In particular, tankers, nuclear-powered ships, and ships carrying nuclear or other inherently dangerous or noxious substances or materials; see unclos, Art 22(2). 382 Ch 3, s 3.3.2. 383 46 usc § 2301 (2006). 384 See Proclamation 5298 (27 December) 103 Stat. 2981. 385 46 usc § 2304(b) (2006). 386 Ch 4, s 4.2.2.1. 387 See eg French Criminal Code, Book ii, ch iii, s iii, arts 223-5-223-7; Italian Criminal Code, Royal Decree 19 October 1930 n 1398, revised by Law 28 July 2016 No 153, bk ii, title 12, ch 1, art 593. 388 Ch 5, s 5.2.3.1. 389 unclos, Art 98(1)(a); see also Ch 3, s 3.2.2.3.a.

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nature of migration, all States have the responsibility to offer protection.390 States have a duty to offer assistance to protect persons in distress on the high seas and in their internal waters and territorial sea.391 In fact, the authors go so far as to argue that, considering the jurisdictional principles emerging under human rights law, the duty applies to all States on the high seas, not only the flag State392 Consequently, some could argue that the coastal State may exercise criminal jurisdiction against a shipmaster of a foreign ship in its territorial sea for failing to render assistance on the high seas. However, this approach may be difficult to reconcile with unclos, considering Article 27(5) which provides that: …the coastal State may not take any steps on board the ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.393 In light of the above, it appears that a coastal State may not be able to arrest or prosecute the shipmaster of a foreign-flagged vessel who has failed to render assistance before entry into that coastal State’s territorial sea, unless perhaps requested to do so by the flag State of the vessel. Coastal States should not only enforce the shipmaster’s duty to render assistance but also provide him with the necessary support to complete the rescue operation by arranging, if necessary, for the disembarkation of rescuees.394 Unfortunately, there is evidence to suggest that the opposite approach is adopted by certain coastal States. This practice may disincentivise shipmasters from rendering assistance, especially if they are threatened with criminal prosecution if entry to disembark rescuees is done without authorisation. The criminalisation of shipmasters in such circumstances has been a controversial issue for nearly two decades.395 In fact, this issue was a point of contention in 390 391 392 393

Tzevelekos and Katselli Proukaki (n 127) 442–445. Ibid 454–465. Ibid 435. Anne T Gallagher and Fiona David, The International Law of Migrant Smuggling (cup 2014) 239. 394 Ch 3, ss 3.2.2.3.b, 3.2.3.1.c, and 3.4.1.1. 395 Andrew Linington, ‘Is the Criminalisation of Shipmasters an Occupational Hazard?’ Onboard Online (8 November 2018)  accessed 6 March 2019; see also European Transport Workers’ Federation (etf), ‘Seafarers

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the mv Tampa incident.396 The vessel’s shipmaster was threatened with prosecution for violating Australia’s immigration and anti–people smuggling laws,397 if he attempted unauthorised entry into Australia’s territorial sea in order to access the Christmas Island port to disembark the rescuees.398 The El Hiblu 1’s shipmaster faced similar circumstances.399 It was reported that the Maltese authorities had initially investigated the shipmaster for migrant smuggling.400 They considered the theory that he may have intentionally misled the Maltese authorities about the security threat on board in an attempt to gain speedy access to port to disembark. The shipmaster claimed that he was maltreated by Maltese officials, who confiscated his personal belongings and ordered him to take off his clothes for a body search.401 He was later detained in a holding cell and questioned by Maltese police for several hours. The shipmaster made the following claim: ‘[Malta had] treated me in a very disrespectable way after rescuing 98 people. They dealt with me as a criminal and accused me of illegal migration’. However, no formal charges were brought against the shipmaster.402 Other States, such as Italy, have actually prosecuted shipmasters of vessels involved in rescuing migrants in distress. On 8 August 2007, two Tunisian

396 397

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399 400

401 402

Are Not Lifeguards But They Should Not Be Criminalised for Saving Lives at Sea – Sea Rescue: An etf Statement’ (17 December 2018) accessed 6 March 2019 (2018 etf Statement). Ch 1, s 1.2. According to Australian law, a person who commits an offence of people smuggling is liable for a minimum imprisonment for ten years, a fine of 210,000 Australian dollars, or both; see Migration Act 1958 (No 62, 1958) as amended, div 12 A, art 233A. It is interesting to note that under the same Act, specific penalties may be placed on the shipmasters in cases of unauthorised persons who enter Australia on board their vessels; see art 232. David Marr and Marian Wilkinson, Dark Victory: How a Government Lied Its Way to Political Triumph (Allen & Unwin 2004) 31. However, ultimately, Australia did not pursue prosecution against the shipmaster of mv Tampa. See further Gallagher and David (n 393) 462; Donald R Rothwell, ‘The Law of the Sea and the M/V Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty’ (2002) 13 PubLRev 118, 118. Ch 4, s 4.2.1.3.a. Denise Grech, ‘Migrant Ship Captain Could Face Smuggling Charges’ The Times of Malta (Birkirkara, 30 March 2019). The commission of such a crime may result in severe punishment, including imprisonment and heavy fines under Maltese laws; see eg the Malta Criminal Code, title ix (iv B), s 337(A)(1), and the Immigration Act, Chapter 217 of the Laws of Malta, pt iv, art 32(1). ‘Captain Feared Death in Migrant Hijack at Sea’ The Malta Independent (St.Julian’s, 29 March 2019). Edwina Brincat, ‘Teen “Ringleaders” Ordered Hijacked Ship to “Go Malta” Captain Testifies’ The Times of Malta (Birkirkara, 10 April 2019).

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f­ishing boats, the Fakhreddine Morthada and the Mohadmed el-Hedi, took ­forty-four rescued migrants to Lampedusa.403 Upon arrival, all seven crew members were charged with aiding illegal immigration,404 but they were eventually acquitted in 2009.405 Both shipmasters were convicted of charges of resisting public officials and committing violence against a warship when they defied Italy’s instructions not to enter Lampedusa’s port.406 The shipmasters of both vessels were eventually acquitted of these charges on appeal in 2011.407 In September 2018, the shipmaster and crew of a Tunisian fishing vessel rendered assistance to fourteen migrants in distress who were attempting to reach Lampedusa.408 After the migrant vessel lost power, the fishermen decided to tow it closer to Lampedusa for the migrants to disembark.409 The crew was subsequently arrested on charges of aiding illegal immigration,410 but they were eventually acquitted.411 The above cases demonstrate a worrying trend where States, particularly those affected by irregular migration, have prosecuted or threatened to prosecute shipmasters for facilitating migrant smuggling, even when bona fide persons in distress have been rescued. Within the EU, member States are required to give effect to EU Council Directive 2002/90/ec defining the facilitation of unauthorised entry, transit, and residence.412 The EU Facilitation Directive requires the adoption of appropriate national measures to sanction persons who assist non-EU nationals into the territory of a member State in  reach of laws on entry or transit of aliens.413 Nevertheless, it also ­permits

403 Tugba Basaran, ‘Saving Lives at Sea: Security, Law and Adverse Effects’ (2014) 16 ejml 365, 376. 404 Under the Migration Law of 1998, Legislative Decree of 18 July 1998, No 286, art 12(3), facilitation of irregular migration may be punished by imprisonment of five to fifteen years and a fine of 15,000 euros for each person in the case; see ‘Tunisian Sailors Arrested for Saving Illegal Immigrants’ The Malta Independent (St.Julian’s, 19 August 2007). 405 Basaran, ‘Saving Lives at Sea’ (n 403) 376. 406 Bayoud and Zenzeri, Tribunale di Agrigento, Sezione Penale Feriale, 1107/2009. 407 Corte d’Appello di Palermo, iii Sezione Penale, 2932/2011. 408 ‘Anger as Italy Arrests Tunisian Fishermen “Rescuing Migrants”’ bbc News (London, 6 September 2018). 409 Lorenzo Tondo, ‘Tunisian Fishermen Await Trial After “Saving Hundreds of Migrants”’ The Guardian (London, 5 September 2018). 410 Ibid. 411 ‘Italy Acquits Tunisian “Migrant Smuggling” Fishermen’ bbc News (London, 22 September 2018). 412 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence [2002] oj L287/17 (EU Facilitation Directive). 413 Ibid Art 1(a).

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member States to  refrain from imposing such sanctions if facilitating ­unauthorised entry or ­transit was done to ‘provide humanitarian assistance’.414 However, as correctly observed by Carrera and others, ultimately ‘the actual decision on whether to use criminal sanctions against people … facilitating access to humanitarian assistance has been left to the discretion of each Member State’.415 This ‘humanitarian exemption’ should serve to protect shipmasters who have saved lives and who disembark or attempt to disembark rescued migrants in EU member States. Unfortunately, this appears not to be the case, as even in States such as Italy, where the ‘humanitarian exemption’ has been declared,416 formal prosecutions have been brought against shipmasters of ngo vessels involved in sar operations, whose purpose is purely to provide humanitarian assistance.417 In the 2004 Cap Anamur418 incident, the shipmaster of the rescue and support vessel saved thirty-seven migrants on the high seas between Libya and Lampedusa.419 He requested permission to disembark at port of Empedocle.420 Italy initially granted authorisation but revoked it immediately before the ship entered its territorial sea.421 Italy declared that it was not obliged to

414 Ibid Art 1(2). 415 Sergio Carrera and others, Policing Humanitarianism: EU Policies against Human Smuggling and their Impact on Civil Society (Hart Publishing 2019) 15. According to the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the Request of the European Parliament Committee on Petition (peti), ‘Fit for purpose? The Facilitation Directive and the Criminalization of Humanitarian Assistance to Irregular Migrants: 2018 Update’ (December 2018) (2018 peti Report), 11, forms of explicit exemption for humanitarian assistance were applicable in only seven EU member States. 416 2018 peti Report 11. 417 Human Rights at Sea, ‘Volunteer Maritime Rescuers: Awareness of Criminalisation’ (April 2016); 2018 peti Report 11. 418 The vessel was owned and managed by an ngo by the same name, which has been rescuing migrants in distress at sea since the Indochinese crisis; see Cap Anamur, ‘About Us’ accessed 9 May 2019. 419 Patricia Mallia, Migrant Smuggling by Sea: Combating a Current Threat to Maritime Security Through the Creation of a Cooperative Framework (Martinus Nijhoff Publishers 2010) 80; Adam Smith, ‘Uncertainty, Alert and Distress: The Precarious Position of ngo Search and Rescue Operations in the Central Mediterranean’ (2017) 5 JIntlLIntlRel 30, 54; Pier Luigi, ‘Is It a Crime to Help People to Survive (Cap Anamur and other cases)’ accessed 9 May 2019. 420 Paolo Cuttitta, ‘From the Cap Anamur to Mare Nostrum: Humanitarianism and Migration Controls at the EU’s Maritime Borders’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection in Times of Emergencies (Asser Institute 2014) 22. 421 Ibid.

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receive the migrants.422 After being unable to locate a place for disembarkation for several days, the shipmaster announced a state of emergency, fearing that he would no longer be able to guarantee the safety of the rescuees. Consequently, he entered port of Empedocle without authorisation.423 Following disembarkation, the ship was detained, and the shipmaster and crew were charged with aiding and abetting illegal immigration.424 After a five-year trial, it was held that the shipmaster and crew could not be charged with aiding and abetting illegal migration because the duty to rescue is an obligation under international law and national law.425 Moreover, between 2017 and 2019, there has been a proliferation of criminal cases instituted by Italy against the shipmasters and crews of ngo vessels conducting sar operations. In July 2017, the Iuventa’s426 shipmaster was instructed by Rome rcc to proceed towards the high seas off Libya to attend to migrants in distress who required assistance. Upon arrival, it found an Italian warship on standby. Italian authorities on board ordered the shipmaster to proceed to the port of Lampedusa.427 When the Iuventa reached port, the vessel was impounded428 and the shipmaster and crew charged with aiding irregular migration and colluding with smugglers.429 Similar action was taken against the .

422 Ibid. 423 Smith (n 419) 57; Eugenio Cusumano, ‘Emptying the Sea with a Spoon? Non-governmental Providers of Migrants Search and Rescue in the Mediterranean’ (2017) MarPolicy 91, 95. 424 Alessia di Pascale, ‘Migration Control at Sea: The Italian Case’, in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff Publishers 2010) 302–303. 425 Cap Anamur, Tribunale di Agrigento, I Sezione Penale, I Collegio, 954/2009; see also Cuttitta (n 420) 23; Giovanni Bruno and others, ‘Correspondents Report: A Guide to State Practice in the Field of International Humanitarian Law – Italy’ in Michael Schmitt and Louise Arimatsu (eds), 13 YIntlHL (Springer 2010) 545. 426 As of December 2019, the vessel, operated by German ngo Jugend Rettet has rescued more than 14,000 people in distress at sea; see Jugend Rettet Iuventa, ‘Mission’ accessed 1 December 2019. 427 ai, ‘Between the Devil and the Deep Blue Sea: Europe Fails Refugees and Migrants in the Central Mediterranean’ eur 30/8906/2018 (ai 2018) (2018 ai Report) 15. 428 The vessel remains impounded at the time of writing. 429 Carrera and others (n 415) 110; European Council on Refugees and Exiles, ‘The Italian Supreme Court Rejected an Appeal Against the Seizure of ngo Iuventa’ (24 April 2018). According to reports, the vessel’s crew was accused of collusion with smugglers during three separate rescue operations, one on 10 September 2016 and two on 18 June 2017; see Blaming the Rescuers, ‘The Iuventa Case’ accessed 15 February 2019; see also EU Agency for Fundamental Rights (fra), ‘Fundamental Rights Considerations: ngo Ships Involved in Search and Rescue in the Mediterranean and Criminal Investigations’ (2018 fra Report), tab 2.

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shipmaster and crew of the Open Arms,430 which had saved more than 200 migrants off the Libyan coast on 15 March 2018.431 The Italian coastguard informed the vessel’s shipmaster that he should revert to the Libyan coastguard, which was responsible for the rescue operation. The latter instructed the shipmaster to hand over the migrants, which he refused to do.432 According to reports by Proactiva Open Arms, the Libyan coastguard even threatened to open fire if they did not comply with their request.433 The Open Arms then sailed for several days seeking a port of safety until Italy finally permitted it to disembark in Pozzallo.434 Following the disembarkation, the shipmaster was charged with criminal association and facilitation of irregular migration435 for refusing to hand over the migrants to the Libyan coastguard.436 The investigation was later handed over to prosecutors in Ragusa,437 and the shipmaster remains under investigation.438 In March 2019, the rescue and support vessel, the Mare Jonio operated by the ngo Mediterranea, was seized by order of a Sicilian

430 The vessel is operated by the Spanish ngo Proactiva Open Arms; see Proactiva Open Arms, ‘Home page’ accessed 5 February 2019. 431 ‘Spanish Ship Seized by Italy for Saving Migrants from Libya Return’ bbc World News (London, 19 March 2018); see also Lorenzo Tondo, ‘My Crew Saved 218 Migrants from Drowning – So Why Are We the Enemy?’ The Guardian (London, 24 March 2018). 432 Virginia Passalacqua, ‘The “Open Arms” Case: Reconciling the Notion of “Place of Safety” with the Human Rights of Migrants’, ejil:Talk! (21 May 2018) ; see also 2018 ai Report (n 427) 16. 433 Open Migration, ‘The Prosecutor’s Case Against the Rescue Ship Open Arms’ (29 March 2018) accessed 5 February 2019. 434 ‘Spanish Ship Seized by Italy for Saving Migrants from Libya Return’ (n 431). 435 2018 fra Report, tab 2. 436 Tribunale di Catania, Sezione del Giudice per le Indagini Preliminari, Decreto di Convalida e di Sequestro Preventivo, N 3476/18 rgnr, N 2474/18 rg gip; see accessed 1 March 2019. 437 Tribunale di Ragusa, Ufficio del Giudice per le Indagini Preliminari, Decreto di Rigetto di Richiesta di Sequestro Preventivo, N 1216-1282/18 rgnr, N 1182/18 rg gip; see accessed 1 March 2019. 438 ai, ‘When Solidarity – Like that Shown by Stansted 15 – Becomes a Crime’ (6 February 2019) accessed 5 March 2019. Other incidents have instigated criminal investigations by Italian authorities which were later discontinued. See eg the incident involving the Vos Hestia operated by Save the Children ngo, where the shipmaster of the vessel was interviewed by the deputy prosecutor of Trapani; see also 2018 fra Report, tab 2.

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­ rosecutor, and its shipmaster also placed under investigation for possible aidp ing and abetting illegal migration.439 In July 2019, the shipmaster of the ngo operated Sea-Watch 3 rescued 53 migrants in distress off Libya. She refused to hand over the rescued migrants to the Libyan coastguard, and proceeded to the closest safe port which was Lampedusa.440 The vessel spent two weeks out at sea where conditions onboard began to deteriorate, with some of the rescued migrants threatening to commit suicide.441 Due to the gravity of the circumstances, the shipmaster ignored an Italian blockade and entered the port of Lampedusa without authorisation.442 The migrants were disembarked, and the shipmaster arrested and later questioned by Italian prosecutors in Agrigento over alleged aiding illegal immigration.443 However, her arrest was later overturned by the Tribunale d’ Agrigento, where the judge held that the shipmaster had been carrying out her duty to save life at sea and had not committed any act of violence.444 These cases demonstrate that there is a risk that the criminalisation of ngo shipmasters may be extended to shipmasters of commercial vessels. This author considers that the practice of criminalising acts of shipmasters who have rendered assistance fails to consider the humanitarian needs of the rescuees and serves as a disincentive for shipmasters.445 Following his acquittal the shipmaster of the Cap Anamur was reported to have announced: ‘if seafarers at sea notice a refugee boat, they know that we stood trial for three years. The acquittal then perhaps does not play an important role anymore’.446 Similarly, in the El Hiblu 1 incident, following the alleged ill-treatment and threat of prosecution by the Maltese authorities, the shipmaster stated, ‘…if I find a million 439 ecre, ‘Mare Jonio Seized by Italian Authorities while Loss of Lives on the Med Continues’ (22 March 2019) accessed 25 March 2019. 440 Roland Hughes, ‘Carola Rackete: How a Ship Captain took on Italy’s Salvini’ bbc News (London, 6 July 2019). 441 Frank Hornig, ‘We were all in a State of Total Despair’, Interview with Sea-Watch Captain Carola Rakete’ Spiegel International (Hamburg, 8 July 2019) accessed 10 July 2019. 442 Ibid. 443 Ibid. 444 Lorenzo Tondo, ‘Italian Judge orders Release of Ship Captain who Rescued Refugees’ The Guardian (London, 2 July 2019). 445 On the problems of disembarkation, see Ch 3, s 3.2.3.3.c. 446 Tugba Basaran, ‘The Saved and the Drowned: Governing Indifference in the Name of Security’ (2015) Security Dialogue 1,7.

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people dying in front of me in the sea, I will never rescue them after what I saw here in Malta’.447 Additionally, it can be argued that this practice of criminalisation is inconsistent with the principle that for humanitarian purposes, ships are entitled to enter the internal waters of another State.448 This author’s view is supported by the decisions of various organisations such as imo,449 the Council of Europe,450 and a number of ngos,451 which have encouraged coastal States to end the threat of prosecution against shipmasters. This approach is also supported by the position of the Tribunale Agrigento in the Cap Anamur and SeaWatch 3 cases.452 Coastal States should be encouraged to take measures which may assist shipmasters in relieving them of the burden of continuing to host rescuees, particularly bearing in mind the humanitarian considerations and the ship’s safety and security.453 4.2.2.3 Contiguous Zone The applicable legal status of contiguous zone waters depends on whether the State has declared an eez or not.454 In the event that it has not declared an eez, the contiguous zone remains subject to the high seas regime and, therefore, unclos Article 98 applies. If the State has established an eez, then the eez regime will apply in the contiguous zone.455 In such a scenario, unclos Article 98 would also apply by virtue of Article 58(2) in so far as that it is ‘not incompatible’ with the rules in Part v of the convention on the eez.456 447 ‘Ship Takeover by Migrants Raises Concerns for Rescues at Sea’ The Malta Independent (St. Julian’s, 31 March 2019). 448 Ch 4, s 4.3.2. 449 2004 imo Guidelines, para 3.1; see Ch 3, s 3.4.1; see also 2018 etf Statement (n 395); unhcr, ‘Desperate Journeys – Refugees and Migrants Arriving in Europe and at Europe’s Borders (January–December 2018)’ accessed 27 February 2019 7. 450 Tineke Strik, ‘The “Left-to-die Boat”: Actions and Reactions’ (June 2014) pace Doc 13532. 451 Human Rights at Sea, ‘Legal and Policy Matters Arising from the Increased Criminalisation of Civil Society Search and Rescue Activities in the Mediterranean’ (Briefing Note, February 2019) accessed 3 March 2019; 2018 ai Report (n 427) 14–16; Human Rights Watch (hrw), ‘EU/Italy/Libya: Disputes Over Rescues Put Lives at Risk’ (25 July 2018) (2018 hrw Report) 3. 452 See pages 178 and 180 respectively. 453 2004 imo Guidelines, para 1.2. 454 Attard (n 13) 128. 455 Ibid; see also Tanaka (n 12) 145. 456 unclos, Art 58(2); see also Ch 3, s 3.2.2.3.

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­ onsidering the primacy of the duty to protect life, it is difficult to see how the C eez rights of a coastal State are incompatible with the shipmaster’s duty to render assistance.457 Although the shipmaster continues to have a duty to render assistance in the contiguous zone, an interesting problem may arise with respect to the position of a shipmaster who intends to disembark rescued migrants without the authorisation of the coastal State. The coastal State may exercise the control necessary, under unclos Article 33(1)(a), to prevent infringement of its immigration laws and regulations within its territory or territorial sea.458 The question arises as to the extent of the control necessary that can be exercised. The general view is that this control does not extend to the application of the coastal State’s immigration laws in the contiguous zone.459 Consequently, it is not possible for the coastal State to enforce its immigration laws within the contiguous zone. It may be argued that if a shipmaster intends to disembark migrants without authorisation, the coastal State cannot enforce its immigration laws and regulations against the shipmaster, as long as the vessel is in the contiguous zone. In such cases, the coastal State may choose to stop the ship and may exercise the control necessary to prevent disembarkation by, for example, requesting the shipmaster to leave the contiguous zone.460 However, such a course of action may not be straightforward if the shipmaster is requesting to enter the territorial sea for humanitarian reasons. It may be necessary for the competent authorities to consult with the shipmaster regarding the state of rescuees and, if necessary, provide them with food, water, and medical supplies, as occurred in the mv Salamis incident.461 The coastal State may also reduce the humanitarian danger by, for example, uplifting from the ship any rescuees who require urgent medical attention. This could in turn entail an obligation for the shipmaster to leave the contiguous zone, as his ship would no longer be in distress. 457 Ch 3, s 3.2.2.3; see also Irini Papanicolopulu, ‘The Duty to Rescue at Sea, in Peacetime and in War: A General Overview’ (2016) 98(2) irrc 491, 495. 458 Rothwell and Stephens (n 12) 83; Daniel-Erasmus Khan, ‘Contiguous Zone’ in Alexander Prölss (ed), The United Nations Convention on the Law of the Sea: A Commentary (CH Beck, Hart, Nomos 2017) 265. 459 Gerald Fitzmaurice, ‘Some Results of the Geneva Conference on the Law of the Sea: Part i – The Territorial Sea and Contiguous Zone and Related Topics’ (1959) 8 iclq 73, 113; Rothwell and Stephens (n 12) 83; Shearer (n 377) 330; Gallagher and David (n 393) 240–241. For an opposing view; see Douglas Guilfoyle, ‘Maritime Interdiction of Weapons of Mass Destruction’ (2007) 12 jc&sl 1,7. 460 Rothwell and Stephens (n 12) 461. 461 See the mv Salamis discussed in Ch 1, s 1.5.

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In the case that the shipmaster sails his ship into the territorial sea or internal waters and, for example, disembarks rescued migrants in violation of that State’s immigration laws and regulations, then following disembarkation the coastal State would be entitled to exercise, in the contiguous zone, the control necessary to punish the infringement of its immigration laws.462 This would enable the coastal State to exercise the control necessary to punish the shipmaster under unclos Article 33(1)(b).463 Nevertheless, as discussed above, this author opposes criminalisation of the shipmaster for disembarking rescued migrants.464 4.3

State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Customary International Law

This sub-section establishes to what extent, if at all, State measures required under the treaties examined above reflect customary international law. It also considers whether any relevant rules relating to State measures exist only under customary international law. Customary International Law Rules Relating to the Shipmaster’s Duty to Render Assistance Reflected in Treaty Law As has been noted above, the constituent elements of the duty to render assistance found in unclos Article 98 reflect customary international law.465 Similarly, the other unclos rules that affect the position of the shipmaster when rendering assistance enjoy the same status.466 Many of the rules found in unclos Part vii were based on rules found in the hsc, which were considered by State parties to be ‘generally declaratory of established principles of international law’.467 The main elements of unclos Article 94 on flag State measures,468 particularly those relating to the shipmaster, reflect Article 10 of the hsc.469 The consistent formulation of said rules over the years and their wide-spread acceptance serve to consolidate further their status as rules of 4.3.1

462 463 464 465 466

Brown (n 335) 134; Noyes, ‘The Territorial Sea and Contiguous Zone’ (n 376) 108–111. Rothwell and Stephens (n 12) 83; Tanaka (n 12) 146; see also unclos, Art 111. Ch 4, s 4.2.2.2.b. Ch 3, s 3.3. See generally Martin Lishexian Lee, ‘The Interrelation Between the Law of the Sea Convention and Customary International Law’ (2006) 7 SanDiegoLRev 405. 467 hsc, Preamble; see also Ch 3, s 3.2.1.1. 468 Ch 4, s 4.2.1. 469 hsc, Art 10.

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customary international law. For similar reasons, it is possible to agree with the view that the unclos rules relevant to rendering assistance at sea in the territorial sea and contiguous zone, examined above, also form part of customary international law.470 Yet do the relevant rules affecting the shipmaster’s duty to render assistance found in the 1974 solas, the 1978 stcw, the 1979 sar, the 1988 sua, the mlc, 2006, and relevant codes adopted under these conventions471 reflect customary international law? When discussing the general practice supporting these treaties, a distinction has to be made between unclos and the other treaties adopted under the auspices of the imo, because of the unique nature of unclos. At unclos iii, the ‘package deal’ arrangement agreed upon ensured that all State parties are required to accept all the rules found in UNCLOS.472 Under unclos Article 309, no reservations are possible unless expressly permitted by other articles of the convention.473 This prohibition contributes to its status as reflecting customary international law.474 Under the mlc, 2006, reservations are also not admissible.475 The same cannot be said for other treaties such as the 1974 solas, the 1979 sar, the 1978 stcw, and the 1988 sua, where reservations are allowed.476 When examining whether the rules found in said treaties reflect customary international law, it should be recalled that it 470 J Ashley Roach, ‘Today’s Customary International Law of the Sea’ (2014) 45 OceanDev&IntlL 239, 242–243; see also Marko Pavliha and Norman A Martínez Gutiérrez, ‘Marine Scientific Research and the 1982 United Nations Convention on the Law of the Sea’ (2010) 16 Ocean&CoastalLJ 115, 131–132. 471 For a discussion of the rules affecting the shipmaster’s duty to render assistance under these conventions and relevant codes, see Ch 4, s 4.2. 472 Hugo Caminos and Michael R Molitor, ‘Progressive Development of International Law and the Package Deal’ (1985) 79 ajil 871, 873–878; Tanaka (n 12) 39; see generally Alan Beesley, ‘The Negotiating Strategy of unclos iii: Developing and Developed Countries as Partners – A Pattern for Future Multilateral International Conferences’ (1983) 46 Law&ContempProbs 18. 473 unclos, Art 309. 474 Lishexian Lee (n 466) 418–419. 475 Moira L McConnell, Dominick Devlin, and Cleopatra Doumbia-Henry, The Maritime Labour Convention: A Legal Primer to an Emerging International Regime (Martinus Nijhoff Publishers 2011) 230; see also ilo, ‘ilo legal instruments’ which provides: ‘[a]s a matter of well-established principle, ilo Conventions may not be ratified subject to reservations. Although Conventions contain various provisions ensuring flexibility, including some that specifically enable ratifying States to limit or qualify the obligations assumed on ratification, no limitations on the obligations of a Convention other than those specifically provided for are possible’. 476 See imo, ‘Status of imo Conventions’ accessed 1 December 2019.

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is possible for State parties to adopt the position of the persistent objector477 as judicially recognised in the Anglo-Norwegian Fisheries Case.478 An example of the persistent objector rule was the position of the US – still not a party to unclos – that for a number of years objected to the widely accepted 12 nm outer limit of the territorial sea, as reflected in unclos Article 2.479 This in essence meant that although the 12 nm limit was part of customary international law, it was not applicable to the US, which was a persistent objector.480 This route is not available to unclos State parties, as they are bound by all its articles under the ‘package deal’ approach. In respect of the other imo treaties considered below, even when their rules reflect customary international law, it may be possible for State parties to adopt the position of a persistent objector. An example of this is the position of Malta with respect to its persistent and continuous objection to the obligations imposed by the 2004 Amendments to the 1974 solas and the 1979 sar Conventions.481 Nevertheless, as established in Chapter 3, the 1974 solas and the 1979 sar enjoy widespread and general support.482 Furthermore, this feature also applies to other treaties such as the 1978 stcw and the 1988 sua; as of December 2019, the former had 165 parties483 and the latter 166 State Parties.484 Admittedly, the mlc, 2006 does not enjoy such widespread support, but it is argued that the 95 States which adhere to this convention represent a considerable and respectable general practice.485 It is significant that major registries, such 477 Draft Conclusion 15 in 2018 Draft Conclusions on cil 4; see also Commentary to Draft Conclusion 15 in 2018 Draft Conclusions on cil with commentaries 152–154, James Crawford, Brownlie’s Principles of Public International Law (9th edn, oup 2019) 26; Johnathan I Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1986) 56 byil 1, 1–24. For a discussion of the criteria for the application of the persistent objector rule, see further James A Green, The Persistent Objector in International Law (oup 2016) 69–185. 478 Fisheries Case (United Kingdom v Norway) Judgment [1951] icj Rep 116, 131. 479 Churchill and Lowe (n 47) 80. 480 Ibid. 481 Ch 3, s 3.2.3.3. 482 Ibid s 3.3.1. 483 See imo, ‘Status of Treaties’ accessed 1 December 2019. 484 Ibid. 485 See ilo, ‘Ratifications of mlc, 2006’ accessed 1 December 2019. The mlc, 2006 is also strongly supported by ilo, imo, and in regional fora such as the Tokyo MoU on Port State Control in the Asia Pacific Region and the Paris MoU on Port State Control; see House of Representatives New Zealand, ‘International Treaty Examination of the Maritime Labour Convention 2006 and the Amendments of 2014’ (Report of the ­Transport

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as China, Cyprus, HK, Japan, Liberia, Malta, Panama, and Singapore, are all parties to the 1974 solas, the 1979 sar, the 1978 stcw, the 1988 sua, and the mlc, 2006.486 Thus, complementing the general and widespread adherence to the relevant imo and ilo treaties is a considerable body of State practice which not only supports the rules but also implements them. Hence, the relevant rules affecting the shipmaster’s duty to render assistance found in the imo and ilo treaties analysed above,487 in view of their general support and the participation therein of specially affected States, may be considered to reflect customary international law. Customary International Law Rules Relating to the Shipmaster’s Duty to Render Assistance at Sea Not Found in Treaty Law Certain rules of customary international law relating to the shipmaster’s duty to render assistance may affect State measures but are not found treaty law, and these rules bear further scrutiny. One of the key topics in this category relates to the position of the shipmaster who has rescuees on board and wishes to enter into the internal waters of a coastal State, either to seek sanctuary or to disembark them. The general principle of customary international law, as affirmed by the icj in the Nicaragua Case, is that it is by ‘…virtue of its sovereignty that the coastal State may regulate access to its port’.488 Therefore, a State has the power to decide which ships enter its ports and under what conditions.489 However, an exception to this general rule is made in the case of ships which have been compelled to enter internal waters due to force majeure or distress and are seeking sanctuary.490 The main criterion in customary international law which permits the shipmaster of a foreign vessel the right of entry 4.3.2

and Industrial Relations Committee, 2015) accessed 15 July 2019, 7. 486 See imo, ‘Status of Conventions’ and ilo, ‘Ratifications of mlc, 2006’ accessed 1 December 2019. 487 Ch 4, s 4.2. 488 Nicaragua Case, para 213; see also, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) Merits, Judgment [1992] icj Rep 351, paras 412, 418. 489 Alan Vaughn Lowe, ‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 SanDiegoLRev 597, 619. 490 See the Eleanor and the Kate A Hoff Case; see also Daniel P O’Connell, The International Law of the Sea: Volume ii (Clarendon Press 1984) 853; Brown (n 335) 39; Churchill and Lowe (n 47) 68; Tanaka (n 12) 100. Historically, this exception was found in bilateral peace treaties and treaties of commerce; see generally Aldo Chircop, ‘The Customary Law of Refuge for Ships in Distress’ in Aldo Chircop and Olof Linden (eds), Places of Refuge for

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into internal waters without authorisation is humanitarian.491 This view finds support in judgments such the mv Toledo case,492 where the Irish High Court considered the right of a ship in distress to seek sanctuary in the internal waters to be absolute only in cases in which safety of life is a factor.493 Furthermore, it is also a longstanding rule of customary international law that a ship which has not voluntarily entered494 internal waters due to distress is immune from the jurisdiction of the coastal State.495 This immunity would apply, for example, in respect of the application of criminal laws.496 In the Kate A Hoff Case,497 the US–Mexican General Claims Commission found that an American ship in distress that entered a Mexican port due to bad weather conditions was immune from the application of customs law.498 However, to enjoy such immunities, the burden of proof to establish distress would lie with the shipmaster.499 What is the position of the shipmaster who has rendered assistance and is carrying rescuees? Would it be possible to argue that the carrying of rescuees on board renders ipso facto the ship in a distress situation? This may be too extreme a view, as much will depend on the circumstances of the case. ­However, it may not be difficult to envisage situations in which carrying Ships: Emerging Environmental Concerns of a Maritime Custom (Martinus Nijhoff Publishers 2006) 163–229. 491 Churchill and Lowe (n 47) 63; see also Richard Barnes, ‘Refugee Law at Sea’ (2004) 53 icql 47, 58. Barnes argues that the right of a vessel in distress to seek refuge in a port ‘…may be said to have two distinct justifications, one flowing from broad humanitarian considerations, and the second, which recognises that mariners may on occasion be placed in situation beyond their control. It is, however, humanitarian considerations that are the principal basis of any right to seek refuge’. 492 act Shipping (ote) Ltd v Minister of Marine (The mv Toledo) [1995] 2 ilrm 30. 493 Ibid 48–49. 494 Eg unclos specifically provides that enforcement action can only be taken by the coastal State in cases where the vessel is voluntarily within a port or at an offshore terminal of a State ‘...in respect of any violation of its laws and regulations … for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State’; unclos, Art 220(1); see further DJ Devine, ‘Ships in Distress – A Judicial Contribution from the South Atlantic’ (1996) 20(3) Marine Policy 229, 230. 495 O’Connell (n 490) 848; Tanaka (n 12) 100; Churchill and Lowe (n 47) 68; Rothwell and Stephens (n 12) 58; Guilfoyle, ‘Part vii High Seas’ (n 21) 729; V D Degan, ‘Internal Waters’ (1986) 17 nyil 3, 10. 496 Eric Van Hooydonk, ‘The Obligation to Offer a Place of Refuge to a Ship in Distress’ (2004) 347 lmclq 350; Tanaka (n 12) 100. 497 Kate A Hoff Case 444. 498 Ibid; see also Brig Concord (The) 13 U.S. 387 (1815) 388. 499 Noyes, ‘Ships in Distress’ (n 98) para 21.

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r­ escuees could render the vessel in distress.500 This may occur in several scenarios discussed below. 4.3.2.1 Rescuees on Board Require Urgent Medical Assistance In the mv Tampa case,501 the shipmaster informed the Australian authorities that a number of rescuees required urgent medical treatment, placing the vessel in a state of distress.502 More recently, various ngo vessels carrying out imros in the Mediterranean sought entry into port because rescuees were ill and required medical attention. In June 2018 mv Aquarius rescue,503 the vessel’s shipmaster requested entry into Italian and Maltese ports to disembark over 600 migrants. These individuals were crammed into a confined space, traumatised, and in need of medical assistance.504 Similar circumstances were faced by the shipmaster of the ngo vessel the Sea-Watch 3, who requested permission to enter and dock in Maltese ports in January 2019. These vessels had been at sea for two weeks. As a result of the deteriorating weather conditions, many of the rescuees were suffering from severe sickness and increasingly vulnerable to infectious disease. It was also reported that several crew members were ill.505 In both cases, the ngo vessels were eventually permitted to enter Maltese ports to disembark.506 4.3.2.2

The Ship May Be Exceeding Its Capacity or May Possess Insufficient Safety Equipment or Provisions to Attend to All Persons on Board This was the argument put forward by Norway in the mv Tampa incident.507 It argued that overcrowding may render a vessel unseaworthy.508 Nevertheless, unseaworthiness may not automatically equate to distress. Barnes argues that ‘only where unseaworthiness gives rise to a threat to human life may the vessel claim a right of refuge’.509 Thus, if as a result of embarking rescuees the 500 This view is supported by several scholars see; Guilfoyle, ‘Part vii High Seas’ (n 21) 729, and Erik Røsæg, ‘Refugees as Rescuees – the Tampa Problem’ (2002) 295 simply 43, 57. 501 Ch 1, s 1.2. 502 Ibid. 503 See page 189. 504 ‘Life On Board the Aquarius Migrant Rescue Ship’ bbc News (London, 11 June 2018). 505 Ibid. 506 Ch 4, s 4.2.2.2. 507 UN, ‘General Assembly, Ending Review of UN Disaster Relief Assistance, Seeks Humanitarian Aid For Tajikistan, Hurricane-Stricken Belize’ (Press release, 27 November 2001) GA/9980 accessed 1 June 2019. 508 Guilfoyle, ‘Part vii High Seas’ (n 21) 729; Røsæg (n 500) 56–57. 509 Barnes, ‘Refugee Law at Sea’ (n 491) 60.

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s­ tructural stability of the vessel is seriously compromised, or if the lack of safety equipment or provisions seriously endangers the lives of the rescuees, crew, or passengers, then the shipmaster may claim a right of refuge in a foreign port. 4.3.2.3

A Major Security Incident Involving Rescuees Has Occurred Which Threatens the Lives of the Shipmaster, Crew, or Passengers of the Rescuing Vessel The mv Tampa,510 Vos Thalassa,511 and El Hiblu 1512 incidents demonstrated some of the serious security risks associated with imros. Frustrated rescuees may become violent and threaten or attempt to threaten the shipmaster and crew.513 Such circumstances may arguably place human life at risk, allowing the shipmaster a right of entry into foreign ports. It is difficult to see why the right to enter internal waters should not apply in the above-mentioned scenarios, yet it may be doubtful that such a right of entry also grants the shipmaster the authority to disembark rescuees.514 If a coastal State can adequately remedy the distress situation, then arguably the right of refuge provided in customary international law would no longer apply. Depending on the circumstances of the case, the coastal State may alleviate a distress situation by repairing the vessel or providing adequate medical assistance to persons on board or, if this is not possible, ensuring that persons who require such treatment are lifted from the vessel, or by instructing coastal State enforcement authorities to remove rescuees who are considered to be a security risk. In fact, such actions are often reflected in State practice. In the mv Tampa case, the Australian authorities sent on board officials to investigate whether any persons required medical assistance.515 In the June 2018 mv Aquarius rescue, Italy provided rescuees with food and water,516 whilst Malta offered to evacuate those who required urgent medical treatment, without prejudice to its right to refuse entry into its waters.517 510 Ch 1, s 1.2. 511 Ch 4, s 4.2.1.3. 512 Ibid. 513 Ibid. 514 Guilfoyle, ‘Part vii High Seas’ (n 21) 729; Røsæg (n 500) 58. 515 Ch 1, s 1.2. 516 Melanie Fink and Kristof Gombeer, ‘The Aquarius Incident: Navigating the Turbulent Waters of International Law’, ejil:Talk! (14 June 2018) accessed 20 June 2019. 517 Yannick Pace, ‘Aquarius Standoff: Spain Will Take Rescue Ship with 629 Migrants On Board’ Malta Today (San Gwann, 11 June 2018).

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It may be reasonable to argue that until the cause of distress is addressed, the ship should be permitted to enter and remain in the internal waters. In such cases, this author feels that if it is necessary to remove the distress, the coastal State should also authorise the disembarkation of rescuees.518 Therefore, it is submitted that a corollary of above-mentioned rule of customary international law, is the duty of the coastal State to allow disembarkation to remove distress for humanitarian considerations. 4.4 Conclusion An analysis of the relevant regimes examined in this chapter demonstrate an intimate relationship between the successful implementation of the shipmaster’s duty to render assistance at sea as reflected under unclos Article 98 and the effective implementation of the measures designed to protect the safety of the ship and life imposed upon States, particularly those required under unclos Article 94. The chapter identified measures in three areas which are of paramount importance to the implementation of said duty: safety and seaworthiness of the vessel; proper management of the crew; and security of the vessel and crew. Furthermore, as these measures under unclos Article 94 are required to conform to generally accepted international regulations, an analysis was undertaken of the applicable treaties adopted by imo and ilo. These treaties provide prescriptions which not only elaborate upon the measures imposed but supplement the rules found in unclos. In fact, they provide detailed and technical guidance which enhances the shipmaster’s capacity to render assistance. The examination of treaty rules was complemented by an analysis of the State practice of large shipping registries and those States with traditional maritime interests. It appears that States are actively securing the observance of these relevant rules and measures by incorporating them into their municipal law. The chapter also examined the relationship between the exercise of coastal jurisdiction and the shipmaster’s the duty to render assistance in internal waters, the territorial sea, and the contiguous zone. It was established that whilst flag States’ obligation to ensure that their vessels’ shipmasters fulfilled the duty to render assistance continues in these zones, this is complemented by the coastal States’ obligation to ensure that shipmasters sailing in these zones could fulfil their duty to render assistance. 518 See further Ch 3, s 3.2.3.3.c.

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The chapter concludes that relevant rules regulating State measures which relate to the rendering of assistance found in unclos and said imo and ilo treaties reflect customary international law. However, several important areas relating to the shipmaster’s duty to render assistance are regulated only by customary international law. These include the right of the shipmaster whose vessel is in distress to enter internal waters without authorisation if carrying rescuees. It was also argued that the immunity accorded under international law to such vessels extends to unauthorised disembarkation of rescuees if this is necessary to alleviate the distress faced by the vessel. The findings of the chapter confirm the view that the shipmaster’s duty to render assistance under unclos Article 98 is part of a comprehensive regime found in treaty and customary international law which must be observed if he is to effectively implement his duty.

Chapter 5

State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Human Rights Law and Refugee Law 5.1 Introduction This chapter commences with an examination of State measures relating to the duty of the shipmaster to render assistance under human rights law. In this respect, it provides an analysis of the relationship between the law of the sea and human rights law. This is followed with an examination of the jurisdictional basis for the application of human rights at sea. The chapter then considers State measures to ensure that the shipmaster respects human rights before highlighting the specially affected human rights in the process of the shipmaster’s rendering of assistance. Certain categories of rescuees may be entitled to additional protection under refugee law. The second part of the chapter therefore examines State measures relating to the duty of the shipmaster to render assistance under refugee law. This analysis begins by addressing the extent to which the principle of non-refoulement applies to rescue operations. It then examines State measures to ensure that the shipmaster disembarks rescuees in a place of safety and the importance of these measures in protecting rescuees from refoulement. Finally, the chapter considers State measures to ensure that the shipmaster provides rescuees access to an adequate and effective asylum status determination procedure.1 5.2

State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Human Rights Law

5.2.1 The Interaction between the Law of the Sea and Human Rights Law There has been considerable debate surrounding the interaction between the law of the sea and human rights law.2 Essentially, the law of the sea regulates 1 Hereafter referred to as sdp. 2 Bernard H Oxman, ‘Human Rights and the United Nations Convention on the Law of the Sea’ (1997) 36 ColumJTransnatlL 399, 399–429; Sophie Cacciaguidi-Fahy, ‘The Law of the Sea and Human Rights’ (2007) 19 Sri Lanka jil 85, 85–107; Tullio Treves, ‘Human Rights and the Law

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States’ rights and obligations, whilst human rights law obliges States to take measures to protect the rights and freedoms of the individual. These different, but not necessarily opposing, objectives have generally resulted in the separate application of the rules of these laws.3 In fact, major international and regional human rights treaties do not usually refer to human rights protection at sea.4 Conversely, such protection is not unknown under the law of the sea.5 Significantly, whilst unclos is not ‘ordinarily considered a human rights instrument’,6 its role in advancing human rights is not negligible.7 The law of the sea is preoccupied with human rights principles such as the rule of law, individual rights and freedoms, and procedural due process.8 Thus, human rights law is an important part of the legal order of the oceans, and it has to be respected even at sea.9 Human rights obligations affect not only States but also shipmasters, who are required to ensure that human rights are protected. Ensuring that States respect human rights ultimately depends on the shipmaster. Furthermore, human rights law enables the protection of human rights at sea, particularly in the areas which are not covered by the law of the sea. Tzevelekos and Katselli Proukaki state that such a complementary approach offers ‘…comprehensive and wide-ranging protection’.10

of the Sea’ (2010) 28 BerkeleyJIntlL 1, 1–14; Seline Trevisanut, ‘Is There a Right to be Rescued at Sea? A Constructive View’ (2014) QuestIntlL 3, 3–15; Efthymios Papastavridis, ‘Is There a Right to be Rescued? A Skeptical View’ (2014) QuestIntlL 17, 17–32; Vassilis P Tzevelekos and Elena Katselli Proukaki, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 ActScandJurisGent 427, 427–469; Irini Papanicolopulu, ‘Human Rights and the Law of the Sea’ in David Joseph Attard (ed), The imli Manual on International Maritime Law Volume 1: The Law of the Sea (oup 2014) 509–532. 3 Irini Papanicolopulu, ‘International Judges and the Protection of Human Rights at Sea’ in Nerina Boschiero and others (eds), International Courts and the Development of International Law: Essays in Honour of Tullio Treves (Springer 2013) 536. 4 Ibid. 5 In fact, it is argued in a subsequent section of this chapter that the shipmaster’s duty to render assistance under unclos, Art 98 is a manifestation of the duty to protect the right to life; see Ch 5, s 5.2.3.1. See also unclos, Art 99 on the prohibition of the transport of slaves. 6 Oxman (n 2) 401. 7 Sofia Galani, ‘The “New” Human Rights at Sea Debate’ (The Maritime Executive, 12 February 2018) accessed 1 March 2019. 8 Oxman (n 2) 402. 9 This view is supported by the Preamble of unclos, which obliges States to apply in matters not regulated by the convention the rules and principles of general international law. 10 Tzevelekos and Katselli Proukaki (n 2) 438–439.

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The synergy between the law of the sea and human rights law11 was confirmed in the 2019 Geneva Declaration on Human Rights:12 ‘[t]here can be no safe and secure legal order for the seas and oceans, if human rights are not enjoyed by all people at sea…’.13 This goal necessitates that both branches of law interact by applying human rights law in the interpretation and application of the law of the sea, and vice versa.14 This is supported by jurisprudence of international courts and tribunals.15 In the Corfu Channel Case,16 the icj held that the obligation of Albania to inform the UK of the presence of a minefield in the Albanian territorial sea was based on ‘elementary considerations of humanity’.17 Such considerations have also been consistently recognised by itlos. In M/V “Saiga” (No. 2),18 the Tribunal, in considering the legitimacy of the force used against the shipmaster and crew when arresting the M/V Saiga, stated that general international law imposes on States the obligation to avoid as far as possible the use of force and in cases where this is unavoidable: …[the State] must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.19 11 12

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16 17

18 19

For a further discussion on the relationship between the two branches of international law; see Treves (n 2) 12; Oxman (n 2) 401. Human Rights at Sea, ‘Geneva Declaration on Human Rights at Sea (Version 1: 5 April 2019)’ accessed 9 April 2019 (gdhrs). Ibid 2. Efthymios Papastavridis, ‘European Convention on Human Rights and the Law of the Sea: The Strasbourg Court in Unchartered Waters?’ in Malgosia Fitzmaurice and Panos Merkouris (eds), The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications (Martinus Nijhoff Publishers 2013) 118; Treves (n 2) 12; Papanicolopulu, ‘Human Rights and the Law of the Sea’ (n 2) 511. Brian Wilson, ‘Human Rights and Maritime Law Enforcement’ (2016) 52 StanJIntlL 243, 258–259; Jasmine Coppens, ‘The Law of the Sea and Human Rights in the Hirsi Jamaa and Others v. Italy Judgment of the European Court of Human Rights’ in Yves Haek and Eva Brems (eds), Human Rights and Civil Liberties in the 21st Century (Springer 2014) 183–184; Treves (n 2) 5. Corfu Channel Case (United Kingdom v Albania) Merits, Judgment [1949] icj Rep 4 (Corfu Channel Case). Corfu Channel Case 22; see further Matthew Zagor, ‘Elementary Considerations of Humanity’ in Karine Bannelier, Théodore Christakis, and Sarah Heathcote (eds), The icj and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Routledge 2012) 264–291. This case is discussed in Ch 4, s 4.2.1. For other itlos judgments which address human rights considerations, see The ­“Camouco” Case’ (Panama v France) (Prompt Release, Judgment of 7 February 2000) i­ tlos

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In The “Enrica Lexie” Incident,20 itlos considered the right to life, family, and the freedom of movement. It held that the grief and suffering of the families of the two Indian fishermen who were killed were worthy of consideration,21 as were the lengthy restrictions on liberty imposed on the two Italian marines and the consequences to their family.22 Similarly, in Case Concerning the Detention of Three Ukrainian Naval Vessels,23 itlos decided that the continued deprivation of liberty and freedom of Ukrainian servicemen raised serious humanitarian concerns.24 In M/V “Louisa”,25 although itlos held that it did not have jurisdiction to decide the case, it nevertheless considered it necessary to take note of the human rights issues during the proceedings.26 This related in particular to the arrest of persons following the detention of the M/V “Louisa”.27 In the M/T “San Padre Pio” Case,28 Switzerland’s claim for jurisdiction29 included interesting human rights considerations. To affirm the existence of prima facie jurisdiction of the unclos Annex vii arbitral tribunal in the case, Switzerland argued inter alia that by arresting and detaining the M/T “San Padre Pio”, Nigeria had breached unclos Article 56(2),30 which compelled Nigeria to have due regard to Switzerland’s obligations31 under Article 94. These included its duties under the International Covenant on Civil and Political Rights32 and

20 21 22 23 24 25 26 27 28 29 30 31 32

Reports 2000; The “Monte Confurco” Case (Seychelles v France) (Prompt Release, Judgment of 18 ­December 2000) itlos Reports 2000; The “Juno Trader” Case (Saint Vincent and the Grenadines v Guinea-Bissau) (Prompt Release, Judgment of 18 December 2004) itlos Reports 2004; The “Hoshinmaru” Case ( Japan v Russian Federation) (Prompt Release, Judgment of 6 August 2007) itlos Reports 2005–2007; The “Arctic Sunrise” Case (Kingdom of the Netherlands v Russian Federation) (Provisional Measures, Order of 22 November 2013) itlos Reports 2013. The “Enrica Lexie” Incident (Italy v India) (Provisional Measures, Order of 24 August 2015) itlos Reports 2015. Ibid para 134. Ibid para 135. Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v Russian Federation) (Provisional Measures, Order of 25 May 2019) itlos Reports 2019. Ibid para 112. The M/V “Louisa” Case (Saint Vincent and the Grenadines v Kingdom of Spain) (Judgment of 28 May 2013) itlos Reports 2013. Ibid para 154. Ibid paras 59–62. The M/T “San Padre Pio” Case (Switzerland v Nigeria) (Provisional Measures, Order of 6 July 2019) itlos Reports 2019 (M/T “San Padre Pio” Case). Ibid para 109. Ibid para 49. Ibid paras 49–50. (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171 (iccpr).

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the mlc, 2006.33 Nigeria opposed this claim, arguing that the rights asserted by Switzerland did not concern the interpretation or application of unclos, thereby falling outside of the jurisdiction of the Annex vii arbitral tribunal.34 itlos, however, did not decide on these issues as other grounds afforded a basis for jurisdiction.35 In light of the above, it is necessary to consider the human rights ramifications of the shipmaster’s duty to render assistance. unclos references to human rights considerations, such as those in Article 98, makes it necessary to apply human rights law to ensure that the dignity of the human person is fully protected. Indeed, migration by sea issues highlight the importance of this approach. Furthermore, as shown below,36 this interrelationship confers jurisdiction for the purposes of applying human rights on the high seas and in the eez.37 The Jurisdictional Basis for the Application of Human Rights Law at Sea Human rights treaties provide that their scope of application extends to all individuals within a State’s territory or jurisdiction.38 The application of jurisdiction is necessary to establish the responsibility of a State for a violation of its human rights obligations.39 However, there has been much debate as to the 5.2.2

33 34 35 36 37 38

39

Ch 4, s 4.2.1.2.c. M/T “San Padre Pio” Case, para 53. Ibid paras 57–60. Ch 5, s 5.2.2. gdhrs 2, which recognises that ‘…people are full beneficiaries of human rights; the fact that they may be at sea beyond the limits of territorial jurisdiction does not affect their rights’. iccpr, Art 2(1); Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 unts 221 (echr), Art 1; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 unts 123 (achr), Art 1; Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 unts 85 (cat), Art 2(1). This has been confirmed by the jurisprudence of the European Court of Human Rights (ECtHR); see eg Assanidze v Georgia App no 71503/01 (ECtHR, Judgment (gc) of 8 April 2004), para 137 where the Court held that Article 1 of the Convention requires State parties to, ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section i of [the] Convention’. It follows from this provision that the State parties are answerable for any violation of the protected rights and freedoms of anyone within their ‘jurisdiction’ – or competence – at the time of the violation. See also Ilaşcu v Moldova App no 48787/99 (ECtHR, Judgment (gc) of 8 July 2004) para 311, where the same Court held that: ‘[i]t

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meaning of jurisdiction in this context. Jurisdiction is the general basis required by international law for a State to exercise legislative, adjudicatory, and enforcement powers.40 Various human rights courts and bodies have affirmed that the basis of jurisdiction to determine human rights obligations may be wider than the traditional basis of jurisdiction under general international law.41 In this respect, the ECtHR, for example, has held that jurisdiction may encompass a de jure and a de facto exercise of power.42 This difference will now be examined in the context of the law of the sea. 5.2.2.1 De Jure Jurisdiction De jure jurisdiction generally depends on the existence of a legal basis, such as territoriality or nationality principles.43 Such basis could be derived from customary international law or extended by treaty law. For example, the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances44 provides that the basis for jurisdiction includes habitual residence.45

40 41

42 43

44 45

follows from Article 1 that member States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention’. Papanicolopulu, ‘Human Rights and the Law of the Sea’ (n 2) 519; Papastavridis, ‘European Convention on Human Rights and the Law of the Sea’ (n 14) 122. In interpreting the meaning of jurisdiction within the context of the iccpr, the UN Human Rights Committee (unhrcom) has held that the convention applies once persons fall within the ‘power’ or ‘effective control’ of parties to the convention, even if they are not situated within the territory of a State party; see unhrcom, ‘General Comment no 31 [80]’ in ‘The nature of the general legal obligation imposed on States Parties to the Covenant’ (26 May 2004) ccpr/C/21/Rev 1/Add 13 (unhrcom General Comment 31), para 10; Urfan Khaliq, ‘Jurisdiction, Ships and Human Rights Treaties’ in Henrik Ringbom (ed), Jurisdiction over Ships: Post-unclos Developments Sea (Brill Nijhoff 2015) 343. See eg Hirsi Jamaa v Italy App no 27765/09 (ECtHR, 23 February 2012), para 81, discussed further in Ch 5, ss 5.2.2.2 and 5.3.1. See also Al-Saadoon v the United Kingdom App no 61498/08 (ECtHR, Decision of 30 June 2009), para 88. See generally Michael Akehurst, ‘Jurisdiction in International Law’ (1972) 46 byil 145, 145–257; James Crawford, Brownlie’s Principles of Public International Law (9th edn, oup 2019) 441–444; Malcolm N Shaw, International Law (8th edn, cup 2017) 493–497; Cedric Ryngaert, Jurisdiction in International Law (2nd edn, oup 2015) 49–100; Christopher Staker, ‘Jurisdiction’ in Malcolm D Evans (ed), International Law (5th edn, oup 2018) 296–301. (adopted 20 December 1988, entered into force 11 November 1990) 1582 unts 164. Ibid Art 4(b)(i); see also 1988 sua, Art 6(2).

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Under unclos, de jure jurisdiction may be based on the territoriality principle, such as that exercised in the territorial sea,46 or nationality,47 such as that exercised by the flag State. The latter, for example, has been judicially recognised as the basis for the application of human rights rules under the echr. In Bakanova v Lithuania,48 when considering the admissibility of the applicant’s complaint, the ECtHR explicitly held ‘…the extraterritorial exercise of jurisdiction by a State to include cases involving the activities on board of ships registered in, or flying the flag of, that State’.49 5.2.2.2 De Facto Jurisdiction In human rights law, the term ‘de facto jurisdiction’ has been used to cover all those instances where the State acts using its power or control under international law.50 Under the law of the sea, this is often done on an extraterritorial basis, and involves the exercise of legislative or enforcement powers, such as the control of a vessel engaged in a rescue operation.51 The ECtHR has also argued that even when such control or jurisdiction is exercised without a legal basis, the State is still obliged to respect its human rights obligations. The ECtHR confirmed this in the Medvedyev v France52 case, which concerned the illegal boarding and arrest by France of a Cambodian vessel suspected of drug trafficking on the high seas.53 The Court held that exceptional cases may exist in which the extraterritorial exercise of jurisdiction attracts the application of echr Article 1. For example, when ‘…acts of the Contracting States performed, producing effects, outside their territories can constitute an exercise of jurisdiction’.54 The ECtHR concluded that despite the illegality of the arrest, it considered France to have exercised de facto jurisdiction, ‘…from the 46 47 48 49 50 51 52

53 54

See unclos, Arts 27 and 28 respectively, concerning the exercise of a coastal State’s c­ riminal and civil jurisdiction over foreign vessels within its territorial sea; see also Ch 4, s 4.2.2.2.b. See unclos, Arts 91 and 92. App no 11167/12 (ECtHR, Judgment of 31 May 2016) (Bakanova) para 63. This case is discussed further in Ch 5, s 5.2.3.1.a. Bakanova, para 63; see also Banković and Others v Belgium and 16 Other Contracting States App no 52207/99 (ECtHR, Decision (gc) of 12 December 2001), paras 59–61. Irini Papanicolopulu, International Law and the Protection of People at Sea (oup 2018) 121. Patricia Mallia, Migrant Smuggling by Sea: Combating a Current Threat to Maritime Security Through the Creation of a Cooperative Framework (Martinus Nijhoff Publishers 2010) 207. App no 3394/03 (ECtHR, Judgment (gc) of 29 March 2010) (Medvedyev). For an in-depth analysis of this case, see Efthymios Papastavridis, ‘European Court of Human Rights Medvedyev et al v France (Grand Chamber, Application No 3394/03) Judgment of 29 March 2010’ (2010) 59 iclq 867, 867–882. Medvedyev, para 9. Ibid para 64.

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time of its interception, in a continuous and uninterrupted manner until they were tried in France…’,55 which effectively placed the applicants within France’s jurisdiction for the purposes of echr Article 1. The fact that France did not challenge the existence of jurisdiction under the convention indicates its implicit recognition that the enforcement activity brought the vessel and crew within its de facto jurisdiction. The Medvedyev judgment presents a significant development in safeguarding the protection of human rights on the high seas. The Court pertinently emphasised that ‘the special nature of the maritime environment’56 does not allow States to ignore their obligations under the echr on the high seas and in the eez, irrespective of the necessity of the measures undertaken (in this case efforts to combat drug trafficking at sea).57 Furthermore, if the relevant circumstances of the case reveal that the vessel or individuals are under the actual or effective control of the State, this would be sufficient to engage de facto jurisdiction, and it would require the State to honour its human rights obligations, even if such activity is not characterised by the State as an enforcement activity.58 The ECtHR also addressed the exercise of de facto jurisdiction and control as a ‘trigger’ for the application of human rights obligations of States in rescue operations in the landmark Hirsi Jamaa v Italy59 judgment. On 6 May 2009, Italian authorities intercepted three migrant vessels. Subsequently, eleven Somali and thirteen Eritrean migrants60 were transferred to Italian warships and returned to Libya.61 This ‘push back’ operation was allegedly carried out on the basis of several bilateral agreements concluded between Italy and Libya to combat illegal immigration.62

55 Ibid para 66. 56 Ibid para 81. 57 Ibid. 58 As discussed below, this may be particularly relevant in rescue operations which take place on the high seas and where the shipmaster is instructed to carry out conduct which is directed and controlled by a non-flag State eg the sar State; see Ch 5, ss 5.2.3.1.b and 5.2.3.2.c. 59 App no 27765/09 (ECtHR, Judgment (gc) of 23 February 2012) (Hirsi); For a detailed analysis of the judgment, see also Violeta Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12:3 HRLRev 574, 574– 598; Mariagiulia Giuffré, ‘Watered-down Rights on the High Seas: Hirsi Jamaa and others v Italy (2012)’ (2012) 61 iclq 728, 728–750; Irini Papanicolopulu, ‘Hirsi Jamaa v Italy’ (2013) 107 ajil 417, 417–423. 60 Hirsi, para 9. 61 Ibid para 11. 62 Ibid para 13.

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The applicants claimed that Italy’s actions resulted in arbitrary refoulement,63 as they were denied an individual identification procedure and were not given ‘…the opportunity to challenge their return to Libya and to request international protection from the Italian authorities’.64 They further alleged that the ‘push back’ to Libya resulted in the risk of ill treatment and the possibility of being refouled to Eritrea and Somalia, which constituted violations of echr Article 3.65 Additionally, they claimed that that they were subject to a collective expulsion in violation of Article 4 of Protocol No 4 to the echr.66 Finally, the applicants argued that they were not afforded an effective remedy under Italian law to lodge their complaints under Article 3 of the Convention and Article 4 of its Protocol No 4 and that this was contrary to echr Article 13.67 The Court’s first challenge was to determine whether the migrants had been under Italian jurisdiction and to assess the consequent application of the echr and its protocol.68 Italy denied that its officials had exercised jurisdiction over the applicants for the purposes of echr Article 1, arguing that the interception was carried out in the context of a high seas rescue rather than an arrest.69 Italian officials had not boarded the migrant vessels, nor did they use violence or weapons during the interception.70 Accordingly, Italy claimed that its actions ‘…did not in itself create a link between the State and the persons concerned establishing the State’s jurisdiction’.71 Not surprisingly, the Court rejected Italy’s claims.72 It decided that on the objective assessment of the events, despite the Italian characterisation of its activity as one of rescue, Italy exercised both de jure and de facto jurisdiction. It noted that the events took place entirely on board warships, the crews of which were exclusively composed of Italian military personnel.73 Consequently, in the period from the rescue and boarding of the migrants on the Italian warships, and the handing over to Libyan officials, the applicants: ‘…were under the continuous and exclusive de jure and de facto control of the Italian authorities’.74 The Court’s decision not only confirms the application of human 63 Hirsi, para 85; see further Ch 5, s 5.3.1. 64 Hirsi, para 85; see further Ch 5, s 5.3.2. 65 Hirsi, para 88; see further Ch 5, s 5.2.2. 66 Hirsi, para 159. 67 Ibid para 187. 68 Ibid paras 70–75. 69 Ibid para 65. 70 Ibid para 66. 71 Ibid para 65. 72 Ibid para 82. 73 Ibid para 81. 74 Ibid.

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rights law at sea, but ensures that States must respect their human rights obligations irrespective of the characterisation of the violating act. The UN Committee Against Torture has also confirmed human rights responsibilities of States in rescue operations in jha v Spain75 and Sonko v Spain.76 The former was filed by a Spanish activist on behalf of twenty-three migrants kept in detention in Mauritania.77 The Spanish coastguard received a distress call from cargo vessel the Marine i, carrying over 300 migrants, which capsized on the high seas.78 Despite the location of the distressed vessel within the Senegalese srr, Spain was requested to undertake the rescue.79 Following disembarkation in Mauritania, the Spanish police proceeded to identify the rescuees.80 Most requested asylum or signed voluntary repatriation agreements, except for the twenty-three alleged victims.81 The latter remained in detention under Spanish control.82 According to their complaint, during detention, Spain neglected its responsibilities under the cat, as the migrants were subjected to inhuman treatment83 and possible refoulement.84 Despite the application ultimately being considered inadmissible,85 the Committee’s decision shed important light on the human rights obligations of cat State parties in high seas rescues. The Committee rejected Spain’s argument that it bore no responsibility for the alleged violations because these incidents took place outside Spain’s jurisdiction.86

75

jha v Spain CAT/C/41/D/323/2007, UN Committee Against Torture, 21 November 2008 (jha). For an in-depth analysis of the decision, see Kee Wouters and Maarten Den Heijer, ‘The Marine i Case: A Comment’ (2010) 22 ijrl 1, 1–19. 76 Sonko v Spain CAT/C/41/D/323/2007, UN Committee Against Torture, 25 November 2011 (Sonko). 77 jha, para 1.1. The vessel was carrying migrants from various African and Asian States, including Guinea and India; see jha, para 2.2. 78 Wouters and Den Heijer (n 75) 2; Jasmine Coppens and Eduard Somers, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’ (2010) 25 ijmcl 377, 379. 79 Ibid. 80 jha, para 2.4. 81 Ibid paras 2.4–2.6. 82 Ibid para 2.6. 83 Ibid paras 5.2 and 2.6; see further Ch 5, s 5.2.3.2.a. 84 jha, para 2.5; see further Ch 5, s 5.3. 85 jha, para 9. The Committee held that the complainant was not explicitly authorised to act on behalf of the migrants and therefore lacked the necessary locus standi; see jha, paras 8.3–8.4. 86 jha, para 8.2.

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The Committee referred to General Comment No 287 and held that: …the jurisdiction of a State party refers to any territory in which it exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law.88 This also includes de facto or de jure control over persons in detention.89 The Committee held that Spain’s de facto control commenced from the time of the rescue and continued throughout the identification and repatriation process, although the process took place in Mauritania.90 Consequently, it may be reasonable to argue that although the rescuees were in Mauritania, they were under the control of Spain, which was responsible for ensuring that they enjoyed the protection of the cat. In Sonko, a complaint was filed by the sister of the deceased, Mr Lauding Sonko,91 one of four African migrants who attempted to enter the Autonomous City of Ceuta by swimming along the coast.92 They were picked up by a Spanish civil guard vessel and subsequently taken into the Moroccan territorial sea, where they were forced to jump into the water. It transpired that Mr Sonko could not swim and drowned trying to reach the shore. The complainant alleged (i) that her brother was a victim of torture in terms of cat Article 1 and (ii) that Spain was responsible for this ill treatment under cat Article 1693 for failing to ensure his safety. The Committee again referred to General Comment 294 and concluded that the cat was applicable because the Spanish ‘…Civil Guard officers exercised control over the persons on board the vessel and were therefore responsible for their safety’.95 5.2.2.3 De Facto and De Jure Jurisdiction in Rescue at Sea Operations The above-mentioned cases indicate that in rescue operations the events may fall under the de jure or de facto jurisdiction of different States.96 Therefore, it 87

UN Committee against Torture, ‘General Comment No 2: Implementation of Article 2 by States Parties’ (24 January 2008) CAT/C/GC/2, para 16. 88 jha, para 8.2. 89 Ibid. 90 Ibid. 91 Sonko, para 1.1. 92 Ibid para 2.1. 93 Ibid para 3.1. 94 unhrcom ‘General Comment no 2’ in ‘Implementation of Article 2 by States Parties’ (2007) CAT/C/GC/2/CRP/1/Rev 4, para 16. 95 Sonko, para 10.3. 96 Ch 5, ss 5.2.2.1–5.2.2.2; see also gdhrs 2.

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is possible to envisage overlapping jurisdiction by the flag State, the State of nationality, and the coastal or sar State.97 States may have shared human rights responsibilities. This is usually the case when the shipmaster has rendered assistance, embarks rescuees, and requests from the coastal or sar State guidance or assistance.98 It may thus be reasonable to argue that the shipmaster, his crew, and persons in distress are protected by and subject to the human rights obligations established under general international law or the human rights treaty obligations of States that have jurisdiction. An interesting dimension of this principle relates to operations conducted by shipmasters of vessels registered in countries that are echr State parties, such as Cyprus, Greece, and Malta, as the shipmaster is subject to human rights obligations imposed by the convention and its protocols.99 For example, the 1987 European Convention Act of Malta,100 incorporating the substantive provisions of the echr into Maltese law, applies to all Maltese-registered vessels. Conversely, the shipmaster of a vessel registered in a non-echr State may still find himself subject to the obligations of the convention if the circumstances of the case result in an exercise of de jure or de facto jurisdiction or control of an echr State party. For example, the shipmaster and persons on board his vessel would fall under the de jure jurisdiction and control of an echr State party when either the rescue operation has taken place within that State’s zones of jurisdiction101 or, subsequent to the rendering of assistance, the shipmaster enters those zones. Depending on the circumstances of the case, it may also be argued that a shipmaster who has conducted a rescue on the high seas and subsequently contacts the relevant echr coastal or sar State party to provide assistance to protect the human rights of persons on board, also ‘triggers’ the de facto control of the latter States, as they should take action to prevent such violations. Once de facto or de jure jurisdiction is established, relevant States are required to take all necessary measures to ensure that they fulfil their human rights obligations towards all persons involved in the rescue operation. The following sections examine the nature of these measures, particularly in the context of the protection of the right to life and the prohibition of torture and inhuman and degrading treatment or punishment.

97

On the question of concurrent jurisdiction in migrant rescue operations; see Tzevelekos and Katselli Proukaki (n 2) 445–447. 98 gdhrs 2. 99 Stefan Kirchner, Katarzyna Geler-Noch, and Vanessa Frese, ‘Coastal State Obligations in the Context of Refugees at Sea Under the European Convention on Human Rights’ (2015) 20 Ocean&CoastalLJ 57, 77–79. 100 European Convention Act, Chapter 319 of the Laws of Malta. 101 Ch 4, ss 4.2.2.1–4.2.2.2.

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5.2.3 State Duties to Protect Human Rights at Sea The duty to render assistance reflects the duty to protect human rights at sea.102 It is therefore important to ensure that States enforce the protection of human rights, as reflected in treaty law and customary international law.103 In the enforcement of such rights, States have both negative and positive obligations.104 States are required not only to abstain from human rights violations but to ensure through legislative measures, but not exclusively, that such rights are recognised and effectively protected. Positive obligations may also be described as preventive measures.105 In this respect, the shipmaster is of fundamental importance, as preventive measures often involve his actions. Consequently, the State should ensure that he has a duty to implement such measures.106 The need to take preventive measures was considered by the Inter-­American Court of Human Rights107 and the ECtHR.108 In one of the first contentious cases before the IACtHR, Velásquez-Rodríguez v Honduras,109 the Court was asked to determine whether the respondent State had violated the victim’s 102 pace, ‘International obligations of Council of Europe member States to protect life at sea’ Resolution 2229 (27 June 2018) (pace Resolution 2229), para 3 provides that ‘[s]aving lives at sea, and on land, is a moral as well as legal obligation for member States, as set out in legal provisions which serve to regulate the implementation of the fundamental duty to respect human rights, including the right to life. The Assembly calls on member States to duly take account of this duty in all their action’. 103 Kirchner, Katarzyna Geler-Noch, and Frese (n 97) 58–60; Thomas Spijkerboer, ‘Moving Migrants, States and Rights: Human Rights and Border Deaths’ (2013) 7 lehr 213, 227–235. 104 Dinah Shelton and Ariel Gould, ‘Positive and Negative Obligations’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (oup 2013) 562–583; see also Papanicolopulu, International Law and the Protection of People at Sea (n 50) 171–174; Kirchner, Katarzyna Geler-Noch, and Frese (n 97) 74–75. 105 Benedetto Conforti, ‘Exploring the Strasbourg Case-Law: Reflections on State responsibility for the Breach of Positive Obligations’ in Malgosia Fitzmaurice and Dan Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions (Hart Publishing 2004) 129. See also Brice Dickson, ‘Positive Obligations and the European Court of Human Rights’ (2010) 61(3) nilq 203, 203–208; Laurens Lavrysen, ‘Positive Obligations in the Jurisprudence of the Inter-American Court of Human Rights’ (2014) 7 iaehr 94, 94–115. 106 See gdhrs 2, which provides that private actors such as ‘masters of vessels … need to recognise and accept their own roles in the protection of human rights at sea’. 107 Hereafter referred to as the IACtHR. 108 These judgments are discussed in Ch 5, s 5.2.3.1. 109 (Judgment, Merits) IACtHR Series C No 4 (29 July 1988) (Velásquez-Rodríguez). For a detailed examination of the judgment, see Claudio Grossman, ‘Disappearances in Honduras: The Need for Direct Victim Representation in Human Rights Litigation’ (1992) 15 HastingsIntl&CompLRev 363, 363–389.

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rights to life,110 humane treatment,111 and personal liberty112 under the achr.113 In its assessment, it held that violations of these rights necessarily implied a violation of achr Article 1(1), which imposed an obligation to respect all the rights and freedoms recognised in the convention.114 In interpreting Article 1(1), the Court affirmed that the fulfilment of this obligation cannot be achieved by the mere existence of a legal structure designed for States to abide by this duty.115 To effectively ensure the free and full exercise of human rights under the convention, State parties must also undertake measures: …to prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.116 Interestingly, the Court held that even if the wrongful act was not directly imputable to the State, for example, if it was executed by a private person, this may still engage international responsibility of the State117 if the State has failed in its positive duty ‘…to prevent the violation or to respond to it as required by the Convention’.118 The positive obligation of States to protect fundamental human rights is particularly relevant in distress at sea cases. These vulnerable people require a high level of State protection. In fact, whilst the duty to render assistance is primarily aimed at protecting the right to life at sea,119 in such situations other rights may need to be protected, such as the prohibition of torture and inhuman or degrading treatment or punishment.120 This reasoning implies that 110 111 112 113 114 115 116 117

achr, Art 4. Ibid Art 5. Ibid Art 6. Velásquez-Rodríguez, para 2. Ibid para 162. Ibid para 7. Ibid para 166. See also Case of Juan Humberto Sánchez v Honduras (Judgment, Preliminary Objects, Merits, Reparations and Costs) IACtHR Series C No 99 (7 June 2003) para 142; Angelova and Iliev v Bulgaria App no 55523/00 (ECtHR, Judgment of 26 July 2007). This approach has also been adopted by the unhrcom when interpreting the nature of the legal obligations imposed on iccpr State parties; see unhrcom General Comment 31, para 8. 118 This principle is particularly relevant in the context of the shipmaster’s engagement in State responsibility for failure to protect the human rights of rescuees; see Ch 6, ss 6.4.1–6.4.2. 119 Ch 5, s 5.2.3.1. 120 Ibid s 5.2.3.2.

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State measures imposed under unclos Article 98 should also provide for the protection of human rights. In fact, if one applies the reasoning in VelásquezRodríguez, which is also reflected in the jurisprudence of ECtHR,121 it is not sufficient for the State to impose measures that safeguard applicable human rights. Instead, it is also necessary for the State to prevent their violation. Therefore, it appears reasonable to argue that such measures should include the obligation of the State to prevent, investigate, and punish any violations of the applicable human rights. The following sections examine other State obligations in respect of the above-mentioned rights, with a focus on the duty of the shipmaster in implementing appropriate State measures. The duty to render assistance under unclos Article 98 is not absolute; the convention subjects such a duty to ensuring that its exercise by the shipmaster is without serious danger to the ship, the crew, or the passengers. This may require a balance between the protection of the human rights of the shipmaster and crew and those of the rescuees. For example, even when shipmasters have embarked distressed migrants, whilst they are required to treat them ‘with humanity’,122 this obligation is subject to the capabilities and limitations of the ship and crew.123 5.2.3.1 Right to Life The right to life is the fundamental basis for the duty to render assistance.124 It has been described as having supreme value in the international hierarchy of human rights.125 Every person’s right to life is protected under major human

121 See pages 206–208. 122 1974 solas, anx ch v, reg 33(6); 2004 imo Guidelines, para 5.1.2; 2015 Rescue at Sea Guide 11. 123 1974 solas, anx ch v, reg 33(6); 2004 imo Guidelines, para 5.1.2; 2015 Rescue at Sea Guide 11. 124 Trevisanut (n 2) 8–9; Lisa-Marie Komp, ‘The Duty to Assist Persons in Distress at Sea: An Alternative Source of Protection against the Return of Migrants and Asylum Seekers to the High Seas?’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach – Integrating Maritime Security with Human Rights (Brill Nijhoff 2016) 236–242; Papanicolopulu, International Law and the Protection of People at Sea (n 50) 189; Kirchner, Katarzyna Geler-Noch, and Frese (n 97) 75; KX Li and Jim Mi Ng, ‘International Maritime Conventions: Seafarers’ Safety and Human Rights’ (2002) 33 JMarL&Com 381, 386. 125 See Streletz v Germany App nos 34044/96, 35532/97, and 44801/98 (ECtHR, Judgment (gc) of 22 March 2001), paras 72, 87, and 94; Case of the Pueblo Bello Massacre v Colombia (Judgment, Merits, Reparations and Costs) IACtHR Series C No 140 (31 January 2006), para 153.

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rights instruments126 and customary international law.127 As discussed above,128 States are required to take adequate measures to protect human life within their de jure or de facto jurisdiction.129 The ECtHR confirmed this duty in lcb v the United Kingdom.130 In assessing the complaint, the Court pronounced that the phrase ‘[e]veryone’s right to life shall be protected by law’ in echr Article 2(1) requires States to ‘…not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction’.131 The scope of a State’s positive measures to protect the right to life was elaborated by the ECtHR in later cases such as Osman v the United Kingdom,132 where it affirmed the findings of lcb and held that States are required to take positive measures to protect the right to life of individuals under their jurisdiction.133 The Court went a step further and also clarified the nature of these positive measures, which include the following: …effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.134 126 iccpr, Art 6; echr, Art 2; achr, Art 4; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 unts 218 (achpr), Art 4; see also the Universal Declaration of Human Rights (adopted 10 December 1948) unga Res 217 A(iii) (udhr), Art 3. See further Elizabeth Wicks, ‘The Meaning of “Life”: Dignity and the Right to Life in International Human Rights Treaties’ (2012) 12 HRLRev 199, 200–205. 127 B G Ramcharan, ‘The Concept and Dimensions of the Right to Life’ in B G Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff Publishers 1985) 1–3; Yoram Dinstein, ‘The Right to Life, Physical Integrity and Liberty’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia UP 1981) 114–115. 128 Ch 5, s 5.2.2. 129 Ibid. 130 App no 14/1997/798/1001 (ECtHR, Judgment of 9 June 1998). 131 Ibid para 36. 132 App no 87/1997/871/1083 (ECtHR, Judgment (gc) of 28 October 1998) (Osman). 133 Ibid para 115. 134 Osman, para 115. The positive measures which States are required to adopt to protect the right to life have been addressed by the ECtHR in other cases such as Mahmut Kaya v Turkey App no 225535/93 (ECtHR, Judgment of 28 March 2000); Kiliç v Turkey App no 22492/93 (ECtHR, Judgment of 28 March 2000); Öneryildiz v Turkey App no 48939/99 (ECtHR, Judgment (gc) of 30 November 2004). See further Alistair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing 2004) 9–41; Conforti (n 105) 129–137. The obligation of States to take positive measures to protect the right to life has also been

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Furthermore, it noted that for such positive duties to arise it must be established that: …the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life … from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.135 Human life at sea faces considerable dangers and risks. It is not only vulnerable to or endangered by the perils of nature,136 but also by the risks inherent in irregular migration. Consequently, it can be argued that a high level of protection is required through the adoption of effective measures designed to safeguard human rights. This is reflected in major law of the sea instruments, including unclos,137 the 1974 solas,138 and the 1979 sar,139 which make it mandatory for States to undertake measures to require the shipmaster to render assistance and for coastal or sar States to provide effective sar services to support the shipmaster in this task.140 5.2.3.1.a Flag State Measures The fulfilment of the flag State duty to render assistance and to protect the right to life of persons in distress very much depends on the actions of the shipmaster,141 who may be considered a vector for the flag State in effectively confirmed in judgments delivered by the IACtHR; see eg Case of the Sawhoyamaxa Indigenous Community v Paraguay (Judgment, Merits, Reparations and Costs) IACtHR Series C No 146 (29 March 2006), para 153. 135 Osman, para 116. 136 As noted by Pavliha and Padovan, perils of a maritime dimension may include: (1) maritime perils which are: ‘…perils consequent on or incidental to navigation, including perils of the seas, fire, war perils, acts of pirates or thieves, capture, seizure, restraint, detainment of princes and peoples, jettison, barratry, and all other perils of like kind and, in respect of a marine policy, any peril designated by the policy’, and (2) perils of the seas which are ‘are fortuitous accidents or casualties of the sea (heavy weather, stranding, grounding, capsizing, collision, contact, etc.), not including the ordinary actions of the winds and waves…’; see Marko Pavliha and Adriana Vincenca Padovan, ‘Law of Maritime Insurance’ in David Joseph Attard (ed), The imli Manual on International Maritime Law Volume ii: Shipping Law (oup 2016) 579. 137 unclos, Art 98(1); see also Ch 3, s 3.2.2.3.a. 138 1974 solas, anx ch v, reg 33(1); see also Ch 3, s 3.2.3.1.b. 139 1979 sar, anx ch 2, para 2.1.1; see also Ch 3.2.3.2.b. 140 Ch 3, ss 3.2.2.3.b, 3.2.3.1.c, and 3.2.3.2.d. 141 Ch 5, s 5.2.

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fulfilling many of its human rights obligations at sea.142 This requires the flag State to take the necessary measures to ensure that the shipmaster protects the right to life. These measures may be legislative in nature, requiring the shipmaster to attend to persons in distress by imposing criminal or civil sanctions for failure to do so. The flag State may be held responsible for possible violation of the right to life of persons in distress if the shipmaster of a vessel flying its flag is made aware of the need to provide assistance and can do so without causing danger to his ship and crew, but fails to act as a result of the lack of legal consequences under flag State laws.143 If it was clear that the shipmaster refuses to render assistance, for example, despite the risk of criminal sanctions imposed under flag State law, the flag State would still be responsible for the protection of the lives of the distressed persons. It would be required to undertake all other possible measures, such as sending its warships or alerting other vessels in the area to assist in the rescue, or seeking the assistance of other States, such as the coastal or sar State. Thus, when flag State measures have failed to ensure the implementation of the shipmaster’s duties to protect life at sea, it would not appear sufficient for a State to argue that its measures were in place and that it was the shipmaster who violated this right.144 Moreover, the flag State must undertake procedural measures. In this respect, the flag State measures contemplated under unclos Article 98(1) should implement consistent monitoring of the actions of shipmasters of vessels flying the State’s flag to prevent violations, or future violations, of the right to life as a result of failing to render assistance. Additionally, the flag State should take measures to undertake investigations into allegations of actual or possible cases of shipmasters failing to assist persons in distress.145 The ECtHR explicitly referred to this particular obligation imposed on flag States in the Bakanova case. The applicant claimed that the flag State failed to conduct a proper investigation into her husband’s death whilst working onboard the Lithuanian-registered Vega.146 The Court found a procedural violation of echr Article 2, as the flag State (i) failed to properly examine the vessel and its ­logbook to accurately determine which circumstances led to her husband’s death;147 and (ii) ignored the applicant’s requests for further investigative 142 143 144 145 146 147

gdhrs 2. Kirchner, Katarzyna Geler-Noch, and Frese (n 97) 57; see further Ch 6, s 6.4.1. Komp (n 124) 237. See further Ch 6, s 6.4.1. Bakanova, paras 3 and 6. Ibid para 73.

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­ easures. In addressing the nature of the investigations which should have m been implemented, the ECtHR held that States should: …[take] reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence … Any deficiency in the investigation which undermines its ability to establish the cause of death, or identify the person or persons responsible, will risk falling foul of this standard.148 The flag State is also required to take preventive measures to ensure that the shipmaster effectively assists persons at risk of losing their lives at sea. These may include measures designed to avoid the risks to life during sensitive rescue operations. In this respect, the measures contemplated under unclos Article 94 relating to safety and seaworthiness, management of the crew, and security on board the vessel149 are relevant, as they allow the shipmaster to prepare for and effectively undertake his duty to render assistance. The flag State may impose measures of protection that consider the right to life on board. In unclos Article 98(1), the duty to render assistance is not absolute, but is limited by the need to protect the right to life of the shipmaster, crew, and passengers.150 Thus, one would expect that the flag State measures imposed also consider the need to protect the right to life of these individuals. The balance of these rights is a sensitive and important aspect of the shipmaster’s duties.151 It is largely his responsibility to decide what level of assistance, if any, he can offer without risk to life. Much will depend on the circumstances of the case, such as the capabilities and limitations of the ship and the crew, weather conditions, and the availability of assistance from other vessels. If the shipmaster considers that the implementation of the duty risks the life of his passengers or crew, he should immediately alert the flag State of the situation and the reasons for his inaction. He should also seek the necessary assistance. The flag State should offer the necessary support to the shipmaster when rendering assistance has resulted in embarking persons who later pose a threat to life. This could happen if embarked rescuees have been infected with deadly diseases. Furthermore, security risks may be posed by rescued migrants who threaten the lives of the crew, as was evidenced in the mv Tampa, El Hiblu 1, and Vos Thalassa incidents.152 148 Ibid para 67. 149 These measures are examined in detail in Ch 4, s 4.2. 150 Ch 3, s 3.2.2.3.a. 151 Ibid. 152 Ch 4, s 4.2.1.3.a.

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5.2.3.1.b Coastal or sar State Measures Coastal or sar States should also adopt any necessary measures to ensure that shipmasters of foreign vessels render assistance in areas under their de jure jurisdiction such as the internal waters and territorial sea.153 Similar to the flag State measures discussed above,154 the coastal or sar State may impose criminal or civil sanctions on shipmasters who fail to render assistance.155 Coastal or sar States should also take procedural measures to investigate and, if necessary, prosecute the shipmaster.156 Furthermore, coastal or sar States may also be required to respond appropriately to support the shipmaster in the effective rendering of assistance, even if the distressed persons find themselves in areas beyond the jurisdiction of such States. These measures may include the provision, operation, and monitoring of effective sar services and the maintenance of sar facilities.157 Coastal or sar State services may assist by alerting and guiding the shipmaster to expeditiously attend to persons in distress. Throughout the rescue, the shipmaster should continuously receive assistance from the coastal State or sar State.158 For example, in imros where the shipmaster considers himself unable to embark a large number of migrants in distress, he can request that the coastal or sar State sustain his capabilities. Once the coastal or sar State authorities are made aware by the shipmaster of migrants in distress, it may be argued that such persons fall within these States’ de facto control. This would require them to respond appropriately to protect the lives of said persons, at least under the echr.159 In the Furdík v Slovakia decision,160 the ECtHR held that a State’s duty to safeguard the right to life: …must also be considered to extend to the provision of emergency services where it has been brought to the notice of the authorities that the life or health of an individual is at risk on account of injuries sustained as a result of an accident.161

153 Ibid ss 4.2.2.1–4.2.2.2. 154 Ch 5, s 5.2.3.1.a. 155 See further Ch 4, s 4.2.2.2.b. 156 Ibid. 157 Irini Papanicolopulu, ‘The Duty to Rescue at Sea, in Peacetime and in War: A General Overview’ (2016) 98(2) irrc 491, 512; Trevisanut (n 2) 13; see further Ch 3, s 3.2.3.2.d. 158 2004 imo Guidelines, para 5.1.4; see further Ch 3, s 3.4.1.1. 159 Trevisanut (n 2) 12–13; Papastavridis, ‘Is There a Right to be Rescued?’ (n 2) 28. 160 App no 42994/05 (ECtHR, Decision of 2 December 2008) (Furdík). 161 Ibid 15.

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The above judgment supports the view that the coastal or sar State is obliged under human rights law to take preventive measures to protect life through the provision of effective sar services. In fact, the ECtHR specifically referred to, ‘…the provision of … air-sea rescue facilities to assist those in distress’.162 Furthermore, it held that State measures to protect the right to life: ‘involves the setting up of an appropriate regulatory framework for rescuing persons in distress and ensuring the effective functioning of such a framework’.163 5.2.3.2

Prohibition of Torture and Inhuman and Degrading Treatment or Punishment The prohibition of torture and inhuman and degrading treatment or punishment is enshrined in various human rights treaties164 and customary international law.165 Furthermore, preventing the commission of torture imposes erga omnes obligations,166 granting all States a legal interest in the prosecution of such a crime.167 In the shipmaster’s rendering of assistance and the ­embarkation

162 Ibid 14. 163 Ibid 13. 164 See iccpr, Art 7; achpr, Art 5, achr, Art 5, echr, Art 3. The prohibition of torture and inhuman and degrading treatment or punishment is also protected under specific treaties such as cat; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (adopted 26 November 1987, entered into force 1 February 1989) ets 126; and the Inter-American Convention to Prevent and Punish Torture (adopted 9 December 1985, entered into force 28 February 1987) oas Treaty Series No 67. See also undr, Art 5. 165 See Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Merits, Judgment [2010] icj Rep 639, para 87, where the icj held that: ‘[t]here is no doubt, moreover, that the prohibition of inhuman and degrading treatment is among the rules of general international law which are binding on States in all circumstances, even apart from any treaty commitments’.; see also David Weissbrodt and Cheryl Heilman, ‘Defining Torture and Cruel, Inhuman, and Degrading Treatment’ (2011) 29 Law&Ineq 343, 361–363; James C Hathaway, The Rights of Refugees under International Law (3rd edn, oup 2005) 36. 166 See eg Prosecutor v Anto Furundžija (Judgment) icty IT-95-17/1-T (10 December 1998), paras 151–153, where the icty, in examining the prohibition against torture under international law, held this principle ‘enjoys a higher rank in the international hierarchy’ and that: ‘…the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right’. 167 The doctrine of obligations erga omnes was developed by the icj in Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Second Phase, Judgment [1970] icj Rep 3, where the Court held that ‘[i]n particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising in relation to another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their

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and disembarkation of rescuees, States must ensure that people who fall within their de jure or de facto jurisdiction are not subject to torture or inhuman and degrading treatment or punishment. In this respect, the shipmaster plays a key role. This section identifies instances when the shipmaster’s treatment of rescuees may lead to a violation of the aforementioned human rights. It then considers flag State measures which should be taken to ensure that the shipmaster or crew does not torture rescuees or engage in inhuman and degrading treatment or punishment. Finally, the section considers relevant coastal or sar State measures which should be implemented to enable the shipmaster to protect rescuees from the same treatment. 5.2.3.2.a The Shipmaster’s Treatment of Rescuees and Possible Exposure to Torture and Inhuman and Degrading Treatment or Punishment In considering violations of torture and inhuman and degrading treatment or punishment, it is noteworthy that an absolute prohibition of any of these acts is required.168 In fact, human rights treaties specifically provide that no exceptions to this prohibition are allowed, even in the case of public emergencies.169 This places a great burden on the shipmaster, who must ensure that throughout the rescue operation, rescuees are not subject to ill treatment. However, not all ill treatment by the shipmaster would lead to a violation. His actions must reach a minimum level of severity to meet the threshold for the violation of torture and inhuman and degrading treatment or punishment.170 In this

protection; they are obligations erga omnes’. The imposition of erga omnes obligations may be significant in cases in which the shipmaster’s treatment is attributable to a failure of the State to ensure the protection of rescuees against torture, as it may allow any State to claim a legal interest in protecting such persons; see para 33 of the judgment. 168 UN Committee Against Torture ‘General Comment No 4 (2017) on the implementation of article 3 of the Convention in the context of article 22’ (9 February 2018), para 8; UN Human Rights Council, ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment’ (14 February 2017) A/HRC/34/54, paras 16, 18–20; Chahal v the United Kingdom App no 70/1995/576/662 (ECtHR, Judgment (gc) of 11 November 1996) para 79; Case of Cantoral-Benavides v Peru (Judgment, Merits) IACtHR Series C No 69 (18 August 2000) para 95. See further Stijn Smet, ‘The “Absolute” Prohibition of Torture and Inhuman or Degrading Treatment in Article 3 of the echr: Truly a Question of Scope Only?’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the echr: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (cup 2013) 273–293. 169 echr, Art 15(2); iccpr, Art 4 (2); and cat, Art 2(2). 170 See eg para 162 of Ireland v the United Kingdom App no 5310/71 (ECtHR, 18 January 1978) discussed below on page 214, where the ECtHR held that the minimum level of severity is generally qualified by the circumstances of the case, such as the duration of the treatment, the physical and mental effects of the treatment, and the sex, age, and state of the

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r­ espect, it may be useful to examine these violations, as they are closely related, yet distinct, and may lead to different legal consequences. Human rights courts have distinguished between acts of torture and those of inhuman and degrading treatment or punishment.171 This distinction was elaborated in Ireland v the United Kingdom,172 where the ECtHR emphasised that the distinction between torture and inhuman and degrading treatment derives from ‘a difference in the intensity of suffering inflicted’.173 The measures taken by the British police constituted degrading treatment, since they were aimed at humiliating and debasing the suspects, possibly breaking their physical and moral resistance.174 Nevertheless, the Court found that these measures did not induce the necessary level of ‘suffering of the particular intensity and cruelty’175 and could therefore not be considered as acts of torture.176 The threshold of intensity for acts to constitute torture has been examined by the ECtHR in later judgments.177 In Aksoy v Turkey,178 the applicant was captured by police forces in South East Turkey on suspicion of aiding and abetting the Worker’s Party of Kurdistan.179 During his detention, he was stripped

health of the victim; see also Tekin v Turkey App no 52/1997/836/1042 (ECtHR, Judgment of 9 June 1998), para 52. 171 Eg the ECtHR included both terms, ie ‘torture’ and ‘inhuman and degrading treatment or punishment’, in Art 3 of the echr, which reflects the deliberate intention of the drafters of the convention to draw a distinction between the two acts; see also Dikme v Turkey App no 20869/92 (ECtHR, Judgment of 11 July 2000), para 93. For a further discussion on the distinction between these types of ill treatments, see Weissbrodt and Heilman (n 165) 373–388; Nigel Rodley and Matt Pollard, The Treatment of Prisoners Under International Law (3rd edn, oup 2009) 82–88. 172 App no 5310/71 (ECtHR, Judgment 18 January 1978) (Ireland). 173 Ireland, para 167; see also Gäfgen v Germany App no 22978/05 (ECtHR, Judgment (gc) of 1 June 2010), para 108. The IACtHR has mirrored the approach taken by the ECtHR in establishing a criterion to distinguish between acts of torture and those of inhuman or degrading treatment; see eg Case of Caesar v Trinidad and Tobago (Judgment, Merits, Reparations, and Costs) IACtHR Series C No 123 (11 March 2005), para 50. 174 Ireland, para 167. 175 Ibid. 176 Ibid. 177 See Selmouni v France App no 25803/94 (ECtHR, Judgment (gc) of 28 July 1999), paras 91–105; Salman v Turkey App no 21986/93 (ECtHR, Judgment (gc) of 27 June 2000), para 115; Akkoç v Turkey, App nos 22947/93 and 22948/93 (ECtHR, Judgment of 10 October 2000), paras 116 and 117; Korobov v Ukraine App no 39598/03 (ECtHR, Judgment of 21 October 2011), paras 61–74. 178 App no 21987/93 (ECtHR, Judgment of 18 December 1996). 179 Ibid para 12.

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naked, with his hands placed behind his back, and strung up by his arms.180 The Court found that this treatment was of such ‘a serious and cruel nature that it can only be described as torture’.181 Moreover, rape and sexual violence may in certain circumstances amount to acts of torture. This was considered by the ECtHR in Aydin v Turkey,182 which concerned a seventeen-year old girl who was detained by Turkish police forces on suspicion of involvement in terrorism183 and subjected to physical, mental, and sexual violence by military agents.184 The Court held that ‘the cruel act of rape’185 amounted to torture in breach of echr Article 3.186 The same position was taken by the InterAmerican Commission on Human Rights in Raquel Martin de Mejía v Peru,187 where it recognised that rape causes not only physical suffering in the victim,188 but can also be considered as a measure of ‘psychological torture’.189 It should be noted that besides the element of severity of the acts committed, torture has also been characterised as having intentional and purposive elements. The European Human Rights Commission190 in the 1967 Greek case191 held that torture has ‘…a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment’.192 This was upheld by the ECtHR and the IACtHR in later cases.193 Considering the legal requirements above mentioned, particularly the purposive element, it may be unlikely that the shipmaster’s treatment of rescuees generally results in an act of torture. Nevertheless, one cannot exclude such a possibility, especially if the shipmaster does not take adequate measures to prevent sexual crimes. Furthermore, the shipmaster’s failure to render assistance may violate not only the right to life but may, under certain circumstances, constitute 180 Ibid para 23. 181 Ibid para 64. 182 App no 57/1996/676/866 (ECtHR, Judgment (gc) of 25 September 1997). 183 Ibid paras 18–19. 184 Ibid para 20. 185 Ibid para 86. 186 Ibid. 187 Case 10.970, Report No 5/96, IACmHR, OEA/Ser L/V/ii 91 Doc 7 at 157 (1996). 188 Ibid para 50. 189 Ibid para 48. 190 Hereafter referred to as the ehrc. 191 Denmark v Greece App no 3321/67; Norway v Greece App no 3322/67; Sweden v Greece App no 3323/67; see echr ‘The Greek Case’ (1969) 12 YECommHR 1 (The Greek Case). 192 Ibid para 2. 193 See eg Bati and Others v Turkey App nos 33097/96 and 57834/00 (ECtHR, Judgment of 3 June 2004), para 112; Case of Tibi v Ecuador (Judgment, Preliminary Objections, Merits, Reparations, and Costs) IACtHR Series C No 114 (7 September 2004), para 162.

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inhuman or degrading treatment, which if very severe could, as observed by Papanicolopolu, amount to torture.194 In this respect, it may be useful to refer to the 2007 Tuna Pen case. The incident involved twenty-seven migrants who had left Libya in the hope of reaching Italy.195 The migrants found themselves in distress when their vessel began taking on water,196 and were forced to cling for their lives to the fifty centimetre-wide walkway of a tuna pen and some buoys holding up the net.197 A day later, they were discovered by the shipmaster of the Budafel, who refused to embark the migrants, despite the fact that none of them could swim.198 He later justified his actions based on the need to protect the safety of his crew and vessel, arguing that if brought on board, the migrants could have taken control of the vessel.199 In other reports, he claimed that if he had embarked the migrants, he would have been instructed to take them back to Malta, which would have resulted in a delay that may have jeopardised his tuna catch.200 After refusing embarkation, the shipmaster informed the Maltese authorities of the incident.201 The migrants were located within Libya’s srr,202 which led Malta to deny responsibility for the rescue. Libya also failed to take any action to rescue the distressed migrants.203 They remained stranded on the tuna pen for three days, until they were finally rescued by the Italian navy.204 During this time, the shipmaster and crew members of the Budafel watched from a distance and provided water and fruit to the migrants only on the first day of their ordeal.205 According to press reports:

194 Papanicolopulu, International Law and the Protection of People at Sea (n 50) 140. 195 Thomas Gammeltoft-Hansen and Tankja Aalberts, ‘Sovereignty at Sea: The Law and Politics of Saving Lives in the Mare Liberum’ (2014) 17 JIntDev 439, 447. 196 Ibid. 197 Derek Lutterbeck and Cetta Mainwaring, ‘The EU’s “Soft Underbelly”? Malta and Irregular Immigration’ in Simon Massey and Rino Coluccello (eds), Eurafrican Migration: Legal, Economic and Social Responses to Irregular Migration (Palgrave Macmillan 2015) 45. 198 ‘Left at Sea Hanging on a Tuna Net’ bbc News (London, 20 September 2007). 199 Herman Grech, ‘International Shock over Tuna-pen Incident’ The Times of Malta (Valletta, 29 May 2007). 200 ‘Left at Sea’ (n 198). 201 Gammeltoft-Hansen and Aalberts (n 195) 447. 202 Ibid. 203 Peter Popham, ‘Europe’s Shame’ The Independent (London, 28 May 2007). 204 Silja Klepp, ‘A Double Blind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea’ (2011) 23 ijrl 538, 550. 205 Grech (n 199); ‘Tuna Pen Migrants Relive Ordeal in Documentary’ The Malta Independent (St.Julian’s, 26 August 2007).

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[t]he Budafel’s captain said he wouldn’t mind being on the walkway for an hour. Any longer – under the fierce sun, or in the chill of the night – no thanks.206 Incidents of shipmasters failing to provide assistance or embark distressed migrants were frequent following the civil uprising in Libya. On 26 March 2011, a small boat left Tripoli with seventy-two migrants.207 After eighteen hours at sea, the vessel was running low on fuel, with little food or water on board. In dire need of assistance, a migrant onboard sent out a distress alert to an Eritrean priest living in Italy.208 Subsequently, the Italian rcc was informed, and it sent out many calls to ships in the area to locate the vessel in distress.209 After nearly two weeks at sea, the boat drifted back to Libya with only nine survivors.210 It was reported that during this time, a number of commercial vessels had passed the migrants in distress and refused to provide any assistance.211 Generally, inhuman and degrading treatment or punishment by the shipmaster is more likely to occur once rescuees have boarded. In the Greek case, the ehrc defined inhuman treatment as that which deliberately causes ‘severe suffering, mental or physical, which in the particular situation is unjustifiable’,212 and characterised degrading treatment as that which ‘grossly humiliates’213 an individual before others or drives him to act against his will or conscience.214 The ECtHR has expanded on the meaning of degrading treatment in later cases, such as Pretty v the United Kingdom,215 to include conduct which: …humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish

206 Popham (n 203). 207 pace, ‘Lives Lost in the Mediterranean Sea: Who is Responsible?’ (Report of the Committee on Migration, Refugees and Displaced Persons, 5 April 2012) (pace 2012 Report) para 2. 208 Ibid para 4. 209 Ibid. 210 Ibid para 5; see also Anne T Gallagher and Fiona David, The International Law of Migrant Smuggling (cup 2014) 8. 211 Charles Heller, Lorenzo Pezzani, and Situ Studio, ‘Report on the “Left-To-Die Boat”’ (Forensic Oceanography, 11 April 2012) accessed 6 March 2019, para 3.1.1. 212 The Greek Case, ch iv, para 2. 213 Ibid. 214 Ibid. 215 App no 2346/02 (ECtHR, Judgment of 29 April 2002).

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or inferiority capable of breaking an individual’s moral and physical resistance…216 The shipmaster must ensure that the treatment accorded to rescuees is justifiable and does not grossly humiliate them or lead to their ill treatment. Under certain circumstances the shipmaster may need to take disciplinary action against a rescuee. In such cases he needs to ensure that any measures taken are reasonable and do not unnecessarily arouse feelings of fear, anguish, or inferiority which could break the moral and physical resistance of rescuees who may already be vulnerable. For example, it may be legitimate for the shipmaster to separate a rescuee who was causing a threat to the safety of the vessel from other persons onboard. Whether this is justifiable would depend on whether the acts of such persons presented a real threat and whether the place of detention or isolation and its size, location, and condition were reasonable within the context of the facilities offered by the vessel. One would have to assess the object of the shipmaster’s acts. If such acts were to maintain order on and the safety of the vessel, they might not constitute a violation, even though they may cause humiliation. However, in the standard of care exercised, the shipmaster must be extremely cautious, for it has been held that the absence of a purpose to intentionally humiliate rescuees may not necessarily exclude a violation. This was affirmed by the ECtHR in Peers v Greece.217 The applicant was arrested in Athens for drug offences and placed in a segregation unit of the Kordiallos Prison.218 He was confined to a small hot cell with insufficient lighting and ventilation,219 and claimed that these conditions amounted to inhuman and degrading treatment prohibited under echr Article 3. The Court held that the absence of ‘a positive intention of humiliating or debasing the applicant’220 cannot conclusively rule out a breach of Article 3 of the convention. Many violations related to inhuman or degrading treatment have occurred in the context of the detention of persons. This was considered by the ECtHR in a number of cases.221 In mss v Belgium,222 the applicant, an Afghan migrant,

216 217 218 219 220

Ibid para 71. App no 28524/95 (ECtHR, Judgment of 19 April 2001) (Peers). Ibid para 20. Ibid para 22. Peers, para 74; see also V the United Kingdom App no 24888/94 (ECtHR, Judgment (gc) of 16 December 1999), para 71. 221 See SD v Greece App no 53541 (ECtHR, Judgment of 11 June 2009); Dougoz v Greece App no 40907/98 (ECtHR, Judgment of 6 June 2001), paras 42–49. 222 App no 30696/09 (ECtHR, Judgment (gc) of 21 January 2011) (mss).

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had fled his country after Taliban attempts on his life.223 Detained in a small room with twenty other persons, he was given very little food and forced to sleep on the bare floor.224 He also had limited access to bathroom facilities and was not allowed to go out into the open air.225 In its findings the Court acknowledged the difficulties that States face in accommodating large influxes of migrants and asylum seekers, but noted that this does not ‘absolve a State of its obligations’ under echr Article 3.226 The Court found the applicant’s conditions in the holding centre to be ‘unacceptable’, particularly in light of the vulnerability inherent in the applicant’s situation as an asylum seeker.227 It held that there had been a violation of echr Article 3 and considered that: …taken together, the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person’s dignity, constitute degrading treatment contrary to Article 3 of the Convention.228 Detention of rescuees is likely to occur when they are embarked and their behaviour may threaten the safety of the crew or vessel. In fact, incidents of detention may increase when the shipmaster cannot disembark rescuees or proposes to disembark them in a port which they refuse. In May 2017, the shipmaster of the tugboat Vos Thalassa and his fourteen-member crew rescued 1,000 migrants in the Mediterranean.229 The shipmaster restricted the rescuees to the ship’s flat deck, with he and the crew barricading themselves inside the cabin, as the migrants became threatening due to lack of food and water.230 Furthermore, the crew allowed only women and children to use the toilets.231 The shipmaster complained that the authorities’ delay in allowing disembarking turned his ship into a ‘…storage vessel for 48 hours, putting everyone’s lives in danger: that is both the crew and the rescued persons themselves’.232 ­Despite the hardship suffered, it is difficult to condemn the shipmaster’s activities, 223 Ibid para 267. 224 Ibid. 225 Ibid. 226 Ibid para 223. 227 Ibid. 228 Ibid. 229 Fanny Carrier, ‘“We Locked Ourselves In” – A Captain’s Migrant Log’ Agence France-Presse (Paris, 31 May 2017) accessed 21 March 2019. 230 Ibid. 231 Ibid. 232 Ibid.

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which were in the interest of the lives of the crew and the migrants themselves, as the safety of the ship was at risk. Problems of inhuman or degrading conditions are likely to increase in cases concerning the detention of women or children. The ECtHR examined this issue233 in Aden Ahmed v Malta234 and Abdi Mahamud v Malta.235 The applicants were migrant women who had entered Malta irregularly by sea.236 They were subsequently placed in detention, where they claimed that they had been exposed to inhuman and degrading conditions in violation of echr Article 3.237 The applicants described the conditions at the centre, where they were given limited access to open air,238 as ‘prison-like and basic’.239 In summer the centre was too hot and in winter unbearably cold.240 The overcrowded facilities meant there was no privacy.241 The applicants found the lack of female staff particularly disturbing.242 The Court found that the conditions in detention had diminished the applicant’s ‘human dignity and aroused in her feelings of anguish and inferiority capable of humiliating and debasing her and possibly breaking her physical or moral resistance’,243 particularly in light of the applicant’s fragile health and personal circumstances.244 For these reasons, the Court held that Malta violated echr Article 3 in both cases.245 In cases of legitimate detention, the conditions of such detention must continue to respect the human rights of rescuees. The shipmaster cannot wilfully keep detained rescuees in a permanent state of physical mistreatment or anxiety, or keep them under conditions that do not allow for decent human existence. This could include imprisonment in restricted areas exposed to engine fumes or long stays on the deck that causes exposure to extreme conditions. Such acts may constitute a violation of the prohibition against inhuman or degrading treatment or punishment. Furthermore, a condition the shipmaster needs to consider in imposing detention is the fragile physical or psychological 233 See also SF and Others v Bulgaria App no 8138/16 (ECtHR, Judgment of 7 December 2017), paras 84–93. 234 App no 55352/12 (ECtHR, Judgment of 23 July 2013) (Aden Ahmed). 235 App no 56796/13 (ECtHR, Judgment of 3 May 2016) (Abdi Mahamud). 236 Aden Ahmed, para 7; Abdi Mahamud, para 6. 237 Aden Ahmed, paras 76–77; Abdi Mahamud, paras 57–65. 238 Aden Ahmed, para 77; Abdi Mahamud, para 57. 239 Aden Ahmed, para 76; Abdi Mahamud, paras 20 and 57. 240 Aden Ahmed, para 76; Abdi Mahamud, para 60. 241 Aden Ahmed, para 76; Abdi Mahamud, para 22. 242 Aden Ahmed, para 77; Abdi Mahamud, para 64. 243 Aden Ahmed, para 99; Abdi Mahamud, para 89. 244 Aden Ahmed, para 97; Abdi Mahamud, para 89. 245 Aden Ahmed, paras 99–100; Abdi Mahamud, paras 89–90.

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state of any rescuees, especially women and children, who may need special protection and could be vulnerable to sexual crimes. The shipmaster also needs to be vigilant for the presence of asylum seekers.246 Generally, a shipmaster may not be liable for ill treatment if his actions are unavoidable. It would be unreasonable to claim that rescuees’ rights have been violated if, for example, limited space or resources are available on board his ship.247 Even if the vessel is a large one, the cargo may require the rescuees to be detained in restricted spaces, as evidenced in the mv Tampa incident.248 In the ultimate analysis, the proportionality test would be whether the shipmaster causes severe suffering that is unjustifiable considering conditions aboard the vessel. Similarly, it would be difficult to argue that the shipmaster has caused ill treatment by not supplying adequate food or water if such resources were unavailable or limited. For example, in May 2018, a Brazilian shipmaster rescued twenty-four migrants who had been drifting out at sea for ten days.249 The migrants were deprived of food, water, and medical supplies, as they had run out during the voyage back to port.250 5.2.3.2.b Flag State Measures It has been argued that once the flag State is made aware of a rescue operation,251 this ‘triggers’ the exercise of de jure jurisdiction over the distress situation.252 Therefore, the flag State may have human rights responsibilities towards such persons, even prior to being embarked on a vessel flying its flag.253 As seen in the context of the Budafel incident,254 a shipmaster who is aware of persons in distress and refuses to assist may risk exposing such persons to inhuman or degrading treatment or punishment, and possibly torture. In such cases the flag State has a responsibility to take all necessary measures to ensure that the shipmaster renders assistance, despite any commercial loss.

246 247 248 249

Ch 5, s 5.3.3. Papanicolopulu, ‘The Duty to Rescue’ (n 157) 498. Ch 1, s 1.2. ‘Brazil Rescues African, Guyanese Migrants Drifting at Sea’ Agence France-Presse (Paris, 20 May 2018) accessed 1 April 2019. 250 Ibid. 251 Ch 5, ss 5.2.2.2–5.2.2.3. 252 Ibid. 253 This issue was also discussed in the context of flag State measures to protect the right to life in rescue operations; see Ch 5, s 5.2.3.1.a. 254 Ch 5, s 5.2.3.2.a.

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Therefore, if it is not possible for the shipmaster to conduct a rescue due to the limitations of his vessel, the flag State should seek alternative assistance.255 In situations where persons in distress have been embarked as a result of the shipmaster exercising his duty to render assistance, they fall within the de jure jurisdiction of the flag State in accordance with unclos Articles 92(1) and 94(1).256 This may require the flag State to provide the shipmaster with assistance and request him to report on the situation and conditions on board.257 This should involve constant monitoring by the flag State, in particular in relation to developments which may affect the rescuees’ human rights. The flag State should, as far as possible, provide guidance and support to the shipmaster to ensure that the rescuees and crew are not exposed to degrading treatment. If requested by the shipmaster, the flag State may also be required to provide – directly or indirectly – food, water, and medical supplies to the vessel. There may be cases where this is not reasonable or practicable, for example, in cases where the flag State is far away from the rescuing vessel. As discussed below,258 in such situations it may be more appropriate for the flag State or the shipmaster to seek assistance from the closest coastal or sar State. The flag State is required to take preventive measures to ensure that no human rights violations occur. It should ensure that the shipmaster is aware of his responsibility to treat rescuees humanely.259 The flag State should take appropriate measures under its domestic laws to deter the commission of degrading treatment of rescuees. In this respect, it should have the power to investigate shipmasters who have allegedly violated the human rights of rescuees by exposing them to torture or inhuman or degrading treatment or punishment and to discipline them accordingly. Flag States may require the shipmaster to have plans to effectively provide humane treatment to rescuees. This may be particularly relevant in imros, where rescuees are generally already vulnerable. The flag State must ensure that the shipmaster is trained to keep rescuees calm and to avoid arousing feelings of anguish or fear. For example, he should be encouraged to assure those embarked that they will be taken to a place of safety.260 Such plans would have to be implemented according to the capabilities of the ship. Nevertheless, the flag State should also take precautionary measures, for example, requiring the shipmaster to prepare procedures to attend to the basic needs of rescuees, 255 Ibid s 5.2.3.1.a. 256 Ch 4, s 4.2.1. 257 Ibid. 258 See Ch 5, s 5.2.3.2.c. 259 1974 solas, anx ch v, reg 33.6; 2004 imo Guidelines, para 5.1.2, 2015 Rescue at Sea Guide 11. 260 2015 ics Guidance, s 7.

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i­ncluding the provision of shelter, water, food, and medical treatment.261 Flag State measures may also include training the shipmaster on proper procedures regarding the accommodation and management of rescuees.262 These may relate to segregation of rescuees according to age and gender to protect vulnerable rescuees, particularly women and children, who may be vulnerable to ­violence or sexual crimes.263 5.2.3.2.c Coastal or sar State Measures Protecting the human rights of rescuees depends largely on cooperation between the shipmaster and the coastal or sar State.264 In fact, the shipmaster is advised to inform the coastal or sar State about the endurance of rescuees and any risks posed to such individuals.265 The shipmaster may seek its assistance to protect the human rights of persons on board,266 particularly when he is unable to meet his human rights obligations for reasons beyond his control, such as the size or capabilities of his ship.267 It may therefore be interesting to consider what possible measures coastal or sar States should take to protect rescuees’ human rights. The ECtHR considered this issue in a 2019 request for interim measures.268 The Court orders these measures whenever it feels they are necessary to avoid applicants being exposed to a real risk of irreparable harm.269 An individual may request interim measures before the ECtHR in accordance with Article 36(1) of the Rules of the ECtHR.270 Such measures may therefore be requested by not only the rescuees but also the shipmaster.

261 iamsar ii, s 6.1.1. 262 2015 ics Guidance, s 6.2. 263 iamsar ii, s 6.1.1. 264 Ch 3, s 3.4.1.51. 265 2015 ics Guidance, s 5.5. 266 Constant cooperation and communication between the shipmaster and the relevant coastal or sar State are encouraged under several international instruments; see Ch 3, ss 3.2.3.2.d and 3.4.1.5. 267 1974 solas, anx ch v, reg 33.6; 2004 imo Guidelines, para 5.1.2, 2015 Rescue at Sea Guide 11. 268 European Court of Human Rights (Rules of the Court, Registry of the Court, 16 April 2018) accessed 19 April 2018 (ECtHR Rules). 269 Philip Leach, Taking a Case to the European Court of Human Rights (3rd edn, oup 2013) 30–37. 270 ECtHR Rules, r 36(1) provides that ‘[p]ersons, non-governmental organisations or groups of individuals may initially present applications under Art 34 of the Convention themselves or through a representative’. See also unhcr, ‘Toolkit on How To Request Interim Measures Under Rule 39 of the Rules of the European Court of Human Rights For Persons in Need of International Protection’ (unhcr 2009) 8.

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On 19 January 2019, an ngo-operated vessel, the Sea-Watch 3, rescued fortyseven migrants, fifteen of whom were minors, from a dinghy in distress off Libya.271 The vessel initially sailed towards Lampedusa but was denied permission to disembark.272 It subsequently navigated towards Malta, which also refused entry into its territorial sea.273 Worsening weather conditions then forced the vessel to proceed towards Sicily to seek shelter.274 However, Italy refused entry into Sicilian ports.275 The Sea-Watch 3 remained at sea for over a week while conditions on board deteriorated. This prompted the Sea-Watch 3’s shipmaster, the head of the rescue mission, and one of the minor rescuees to request ECtHR interim measures.276 A subsequent request was submitted by the fifteen minor rescuees.277 The applicants claimed that their detention on the vessel caused them to suffer inhuman and degrading treatment, with the risk of being returned to Libya without evaluation of their individual cases.278 They requested permission for disembarkation in Sicily in view of the deteriorating conditions and the increasing health problems.279 The ECtHR requested Italy: …to take all necessary measures, as soon as possible, to provide all the applicants with adequate medical care, food, water and basic supplies as necessary. As far as the 15 unaccompanied minors are concerned, the Government are requested to provide adequate legal assistance (e.g. legal guardianship)…280 271 ‘Sea-Watch 3 Rescues 47 People from Drowning’ The Malta Independent (St.Julian’s, 19 January 2019); ‘Sea-Watch 3: Crew and Migrants Dock Boat in Sicily’ bbc News (London, 31 January 2019). 272 ‘Sea-Watch 3 Head Towards Malta, as Stage Set for Another Humanitarian Stand-off’ The Times of Malta (Birkirkara, 23 January 2019). 273 Malta contended that Italy was responsible for providing a place of safety, considering that the rescue was undertaken closer to Lampedusa than to Malta; see doim, ‘Statement by the Government of Malta’ (Press Release, 4 January 2019) accessed 1 April 2019. 274 ‘Sea Watch Allowed to Anchor off Syracuse as Sea Gets Rougher’ The Times of Malta (Birkirkara, 25 January 2019). 275 Yannick Pace, ‘Sea-Watch 3 Remains Stranded 1.4 Miles from the Port of Syracuse’ Malta Today (San Gwann, 26 January 2019). 276 ECtHR, ‘echr Grants an Interim Measure in Case Concerning the SeaWatch 3 Vessel’ (Press Release) echr 043 (2019), 29/01/2019. 277 Ibid. 278 Ibid. 279 Ibid. 280 Ibid.

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This decision is significant for several reasons. First, it demonstrates that under the ECtHR interim measures mechanism, the shipmaster can be proactive in protecting human rights. Second, the decision suggests that the coastal or sar State is required to take the necessary protective measures. It is obliged to implement the necessary measures to protect rescuees, including the provision of basic human needs and, in the case of rescued minors, adequate legal assistance. In fact, echr State parties generally undertake these kinds of measures when the shipmaster requests assistance. For example, in the 2014 mv Salamis incident,281 Malta supplied persons on board with food and water and dispatched medical assistance.282 In the 2018 Alexander Maersk rescue, Italy provided food, water, and blankets.283 The issue then arises as to whether such coastal or sar State measures should include disembarkation.284 Could the refusal of a coastal or sar State to accept a shipmaster’s request to disembark result in a violation of the rescuees’ human rights? This may be a possibility considering the reluctance of coastal or sar States to accept disembarkation, which often results in rescuees being stranded at sea for prolonged periods of time, sometimes in adverse weather conditions, and generally without access to medical assistance.285 In such cases, whether the rescuees fall under the jurisdiction of the coastal or sar State may be relevant; for example, if the shipmaster’s vessel is located in the territorial sea or internal waters of a State. If outside such waters, it may also be necessary to assess whether the coastal or sar State has been made aware by the shipmaster of a possible violation of the rights of rescuees. This may result in the exercise of de facto control and jurisdiction of the coastal or sar State over the rescuees, and consequent responsibility to uphold human rights obligations. Despite the Sea-Watch 3 decision, given the need to protect life, it could still be reasonable to argue that there may exist, under certain circumstances, an obligation to allow disembarkation. This may be particularly true in cases of imros conducted by the shipmaster, where his vessel may not have the adequate facilities and capabilities of maintaining numerous rescuees for long 281 Ch 1, s 1.4. 282 ‘Migrants Expected to be Taken to Italy’ The Times of Malta (Valletta, 6 August 2013); see also Patricia Mallia and Jean-Pierre Gauci, ‘Irregular Migration and the International Obligation of Non-refoulement: The Case of the mv Salamis from a Maltese Perspective’ (2014) 20 jiml 50, 55. 283 ai, ‘Between the Devil and the Deep Blue Sea: Europe Fails Refugees and Migrants in the Central Mediterranean’ eur 30/8906/2018 (ai 2018) (2018 ai Report) 9. 284 Ch 3, ss 3.2.3.3.c and 3.4.1.4. 285 Ch 1, s 1.2.

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periods of time without risk to the vessel or life on board.286 A similar argument may be made with respect to the need to protect rescuees in fragile health, such as pregnant women, and minors. Such needs may impose an obligation for the coastal or sar State to allow disembarkation, particularly if interim measures have been exhausted and the risk of human rights violations remains. This was the position taken by the Sea-Watch 3’s doctor. While welcoming the interim measures ordered by the ECtHR, concern was expressed for the deteriorating health and safety situation on board the vessel: The psycho-physiological situation of these people is tied to the place they’re in and can’t escape. We’ve exhausted interim measures, we need a port of safety.287 It should be noted that two days after the decision, Italy allowed disembarkation in Sicily, following a relocation agreement concluded between Italy, Germany, France, Luxembourg, Malta, Portugal, and Romania.288 5.3

State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Refugee Law

Migrants rescued by the shipmaster in distress incidents may include individuals who are refugees and asylum seekers.289 While persons in distress benefit from the human rights protections discussed above, refugees and asylum seekers are entitled to additional protection under refugee law. In addition to safeguarding the rescuees’ human rights,290 States are also required to  undertake measures to ensure that the shipmaster protects the rights of asylum seekers and refugees, in particular, the right to non-refoulement,291

286 Ibid s 1. 3. 287 Sea-Watch, ‘European Court of Human Rights Imposes Interim Measures on Italy – 47 People on Sea-Watch 3 Need a Solution Now’ (30 January 2019) accessed 4 April 2019. 288 ecre, ‘Country Report: Italy’ (Asylum Information Database, 2018 Update) 25 accessed 16 April 2019. 289 According to statistics provided by unhcr, as of December 2019, more than 100,000 refugees and migrants arrived by sea to Italy, Greece, Spain, Cyprus, and Malta; see uncr, ‘Mediterranean Situation’ (uncr Operational Portal) accessed 16 July 2019; see further Ch 1, s 1.5. 290 Ch 5, s 5.2.3. 291 Papanicolopulu, International Law and the Protection of People at Sea (n 50) 21–22.

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which is enshrined in treaty292 and customary international law.293 Considered to be the cornerstone of refugee law,294 non-refoulement refers to the obligation of States to refrain from returning refugees to a place where their lives or freedoms may be threatened.295 It was first enshrined in Article 33(1) of the Refugee Convention: [N]o 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. Interestingly, the prohibition of refoulement has been developed by human rights courts and bodies within the wider prohibition of deprivation of the right to life and exposure to torture and inhuman and degrading treatment or  punishment.296 This is evidenced by numerous ECtHR non-refoulement

292 See the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, amended by the Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (Refugee Convention), Art 33(1); cat, Art 3(1); iccpr, Art 13; achr, Art 22(8); the Inter-American Convention on Human Rights (adopted on 9 December 1985, entered into force 28 February 1987) oas Treaty Series, No 67, Art 13(4); oau Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 unts 45, Art 2 (3); Charter of Fundamental Rights of the European Union (adopted 7 December 2000, entered into force 1 December 2009) oj 2012/C 326/02 (cfreu), Art 19. 293 Nils Coleman, ‘Non-Refoulement Revised Renewed Review of the Status of the Principle of Non-Refoulement as Customary International Law’ (2003) 5 Kluwer Law International 23, 23–68; unhcr, ‘The Scope and Content of the Principle of Non-Refoulement’ (Opinion, Sir Elihu Lauterpacht and Daniel Bethlehem, June 2001) paras 193–253; Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) 345– 354; Walter Kälin, Martina Caroni, and Lukas Heim, ‘Article 33, para 1, 1951 Convention’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (oup 2011) 1343–1346. 294 Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (cup 2011) 44. 295 For an in-depth analysis of the principle of non-refoulement under refugee law; see Goodwin-Gill and McAdam (n 293) 201–284; Hathaway (n 165) 278–370; Cornelis W Wouters, International Legal Standards for the Protection from Refoulement (Intersentia 2009) 33–185. 296 Gallagher and David (n 210) 175–179; Fanny De Weck, Non-Refoulement under the European Convention on Human Rights and the UN Convention on Torture (Brill Nijhoff 2017) 137–231; Eman Hamdan, The Principle of Non-Refoulement under the echr and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Brill Nijhoff 2016) 9–66. Some scholars argue that the principle of non-refoulement may be relevant to the protection of human rights besides the right to life and prohibition

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decisions within the context of extradition, expulsion, deportation, or other forms of removal of individuals.297 In Soering v the United Kingdom,298 the applicant, a German national, argued that his extradition by the UK to the US would result in a serious likelihood of him facing the death penalty,299 thereby subjecting him to inhuman and degrading treatment in violation of echr Article 3.300 The Court held that: [e]xtradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3 (art. 3), would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article…301 Similarly, in Bader v Sweden,302 the Court had to assess whether the applicant’s deportation to Syria, where he was facing execution for complicity in murder,303 resulted in a breach not only of Article 3 but also the right to life under Article 2 of the echr. In its decision the Court reaffirmed its findings in Soering and held that the applicant’s deportation to the receiving country would expose him to a real risk of being subjected to treatment contrary to Article 3.304 Furthermore, the Court also considered that circumstances surrounding the extradition request, where the applicant ‘has suffered or risks suffering a flagrant denial of a fair trial in the receiving State, the outcome of which was or is likely to be the death penalty’,305 amount to a violation under Article 2.306

297 298 299 300 301 302 303 304 305 306

of torture, inhuman, or degrading treatment or punishment; see Maarten Den Heijer, ‘Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights’ (2008) 10 ejml 227, 277–314. ‘Concurring Opinion of Judge de Albuquerque’ in Hirsi, 60. App no 14038/88 (ECtHR, Judgment of 7 July 1989). Ibid para 11. Ibid para 76. Ibid para 90. The ECtHR has applied the principles affirmed in Soering to cases of expulsion; see Cruz Varas v Sweden App no 15576/89 (ECtHR, Jugdment of 20 March 1991), paras 69–70. App no 13284/04 (ECtHR, Judgment of 8 November 2005). Ibid paras 9–27. Ibid paras 34–40. Ibid para 42. Ibid para 48.

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The UN Committee Against Torture also applied the non-refoulement rule found in cat Article 3. In Gorki Ernesto Tapia Paez v Sweden,307 the complainant argued that if he was returned to Peru, he would be tortured by the authorities over his alleged involvement in ‘terrorism and treason’.308 The Committee considered the non-refoulement principle in cat Article 3 to be absolute309 and applicable irrespective of the activities carried out by the person concerned.310 Accordingly, the Committee held that Sweden had an obligation not to forcibly return the complainant to Peru:311 Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture, upon expulsion to another State, the State party is under an obligation not to return the person concerned to that State.312 An important dimension of the principle of non-refoulement, particularly in the context of the shipmaster rescuing migrants, is that it complements the right to seek asylum recognised under udhr Article 14(1): ‘[e]veryone has the right to seek and to enjoy in other countries asylum from persecution’.313 Whilst the Refugee Convention does not explicitly grant the right of asylum, it is generally accepted that non-refoulement may only be guaranteed if the individuals concerned can claim effective legal protection in a State.314 This right to seek asylum necessitates that States take measures to ensure that persons in need of protection are identified through access to appropriate sdps.315 This

307 CAT/C/18/D/39/1996, UN Committee Against Torture, 28 April 1997 (Gorki Ernesto Tapia Paez). 308 Ibid para 3.1. 309 Ibid para 14.5; see also Cecilia Rosana Núñez Chipana v Venezuela CAT/C/21/D/110/1998, UN Committee Against Torture, 16 December 1998. 310 Gorki Ernesto Tapia Paez, para 14.5. 311 Ibid paras 14.6–15; see also Chantal v the United Kingdom App no 22414/93 (ECtHR, 15 November 1996), paras 79–80. 312 Ibid; see also Aemei v Switzerland CAT/C/18/D/34/1995, UN Committee Against Torture, 29 May 1995. 313 See also other instruments such as the cfreu, Art 18, which provides that ‘[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union’ (hereinafter referred to as ‘the Treaties’). 314 unhcr, ‘unhcr Note on the Principle of Non-Refoulment’ (November 1997), Introduction. 315 Fischer-Lescano, Löhr, and Tohidipur argue that ‘…article 33, paragraph 1, of the Refugee Convention is only guaranteed if the person concerned can claim effective legal protection. Here, too, the decisive factor ensuring effectiveness is for the person concerned to

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principle was confirmed by the ECtHR in the mss case,316 where a complaint against Greece concerned the lack of an effective remedy in Greek law, requested under echr Article 13, to consider the applicant’s complaints under echr Articles 2 and 3.317 The applicant argued that as a result of these shortcomings, he risked being refouled to Afghanistan. In this respect, the Court examined whether Greece had taken appropriate measures to provide an effective guarantee against refoulement. It referred to the unhcr, the European Commissioner for Human Rights, and various ngos which had consistently reported structural deficiencies in Greek asylum procedure.318 The ECtHR considered the irreparable damage which could result from torture or ill treatment. It held that an effective guarantee necessitated: …close scrutiny by a national authority … independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 … as well as a particularly prompt response’.319 The Court found that the shortcomings of the Greek asylum system did indeed result in the applicant being exposed to a risk of refoulement, as he did not have access to an effective remedy to challenge the decision to expel him.320 The applicant in the mss case also brought similar claims against Belgium, arguing that it was aware of the shortcomings of the asylum procedures in Greece.321 In this instance, the ECtHR again agreed with the applicant322 and held that Belgium knew or ought to have been aware that the applicant had no guarantee that his asylum claim would be seriously examined by the Greek authorities.323 Furthermore, it held that Belgium had a responsibility to ensure that:

316 317 318 319 320 321 322 323

have the possibility of claiming legal protection on the contracting state’s territory’; see Andreas Fischer-Lescano, Tillmann Löhr, and Timo Tohidipur, ‘Border Controls at Sea: Requirements under International Human Rights and Refugee Law’ (2009) 21 ijrl 256, 275. Ch 5, s 5.2.3.2.a. mss, para 265. Ibid para 300. Ibid para 293. Ibid para 321. The ECtHR found Greece in violation of echr, Art 13 in conjunction with Art 3. mss, paras 323–325; for an in-depth analysis of the ECtHR’s judgment and its ramifications, see Patricia Mallia, ‘Case of mss v Belgium and Greece: A Catalyst in the Re-Thinking of the Dublin ii Regulation’ (2011) 30 rsq 107, 117–126. mss, paras 360–361. Ibid para 358.

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…the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.324 The mss judgment is significant because it confirms that the non-refoulement principle imposes on States a duty to secure access to proper asylum assessment procedures.325 Furthermore, it held that the prohibition of refoulement implies that States must take measures to ensure that persons are not returned to any place where there is a foreseeable possibility that they will then be sent to a State where they are at risk.326 This practice is often termed as ‘indirect refoulement’.327 For the purposes of this discussion, it is necessary to examine the extent to which the principle of non-refoulement applies extraterritorially in the context of rescue operations undertaken by the shipmaster. This is followed by a consideration of State measures that should be implemented to ensure that the shipmaster disembarks rescuees in a place of safety, thereby avoiding engaging in either direct or indirect refoulement. Finally, the section assesses State measures which should be taken to ensure that rescuees are given access to fair and efficient asylum procedures and processing. 5.3.1 The Extraterritorial Application of Non-refoulement Human rights protections apply within the territory of the State, but they may also extend extraterritorially on the high seas and in the eez when the individuals concerned fall within that State’s de facto or de jure jurisdiction or control.328 The Refugee Convention appears to be silent on its extraterritorial

324 Ibid. 325 See further Guy S Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23 ijrl 443, 455. 326 unhcr, ‘General Legal Considerations: Search and Rescue Operations involving Refugees and Migrants at Sea’ (November 2017) (2017 unhcr sar), para 3; unhrc General Comment 31, para 12; Papastavridis, ‘European Convention on Human Rights and the Law of the Sea’ (n 52) 132. 327 Moira Sy, ‘unhcr and Preventing Indirect Refoulement in Europe’ (2015) 27 ijrl 457, 458; see also Sharifi and Others v Italy App no 16643/09 (ECtHR, Judgment of 21 October 2014). 328 Ch 5, s 5.2.2; see also Barbara Stępień, ‘A Tale of Non-State Actors and Human Rights at Sea: Maritime Migration Crisis and Commercial Vessels’ Obligations’ (2018) xviii Anuario Mexicano de Derecho Internacional 35, 52; Marianne Riddervold, The Maritime Turn in EU Foreign and Security Polices: Aims, Actors and Mechanisms of Integration (Palgrave Macmillan 2018) 67.

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application,329 and differences of opinion exist in State practice. For example, the US has taken a restrictive approach, which was affirmed in its Supreme Court’s decision Sale v Haitian Centres Council, Inc.330 In the 1990s, the US faced an unprecedented number of arrivals of Haitian migrants following a military coup in Haiti.331 This led to the proclamation of Executive Order 12807 on 24 May 1992,332 which empowers the president to: …suspend the entry of aliens coming by sea to the United States without necessary documentation, to establish reasonable rules and regulations regarding, and other limitations on, the entry or attempted entry of aliens into the United States, and to repatriate aliens interdicted beyond the territorial sea of the United States.333 Furthermore, the order declared that the US obligations under Refugee Convention Article 33, did not extend to persons located outside US territory.334 In effect, the order allowed the US Coast Guard to interdict vessels carrying Haitian migrants on the high seas and return them to Haiti, without determining possible refugee claims.335 Several organisations representing Haitian m ­ igrants considered this practice to be in violation of the Refugee Convention and 329 Roland Bank, ‘Introduction to Article 11’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (oup 2011) 833; Violeta Moreno-Lax, ‘The Interdiction of Asylum Seekers at Sea: Law and (Mal)practice in Europe and Australia’ (Kaldor Centre for International Refugee Law, May 2017) Policy Brief 4, 9; Mallia, Migrant Smuggling (n 51) 88. 330 Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v. Haitian Centers Council, Inc. et al. (USsc, 21 June 21 1993) 509 US 155 (Sale). See also Guy S Goodwin-Gill, ‘The Haitian Refoulement Case: A Comment’ (1994) 6 ijrl 103, 103–109; Dennis Wasitis, ‘Sale v Haitian Centers Council, Inc.: Closing the Golden Door’ (1993) 27 AkronLR 237, 237–251. 331 Andrew G Pizor, ‘Sale v Haitian Centers Council: The Return of Haitian Refugees’ (1993) 17 FordhamIntlLJ 1062, 1062–65; Mark Gibney, Global Refugee Crisis: A Reference Handbook (2nd edn, abc-clio 2010) 54; Niels Frenzen, ‘Responses to ‘Boat Migration’: A Global Perspective – US Practices’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach – Integrating Maritime Security with Human Rights (Brill Nijhoff 2016) 282–283. 332 Interdiction of Illegal Aliens (24 May 1992) accessed 1 April 2019. 333 Ibid para 1. 334 Ibid para 2. 335 Niels Frenzen, ‘US Migrant Interdiction in International Practices in International and Territorial Waters’ in Bernard Ryan and Valsamis Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff Publishers 2010) 383–384; Daniel Ghezelbash, ‘Lessons in Exclusion: Interdiction and Extraterritorial Processing of Asylum Seekers in the United States and Australia’ in Jean-Pierre Gauci, Mariagiulia Giuffré, and

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S­ ection 234(h)(1) of the Immigration and Nationality Act of 1952,336 which gives effect to non-refoulement under US law. The issue was referred to the Supreme Court, which assessed the extraterritorial reach of the non-refoulement obligation. In its findings it made reference to the comments of States in travaux préparatoires of the Refugee Convention337 and argued that the negotiating history suggested that the latter had a ‘limited reach’, whereby the non-refoulement principle applies only to persons physically present in the host State.338 Furthermore, it considered the text of the Refugee Convention Article 33, to be silent about State measures towards refugees outside their territory, and therefore it could not be considered to ‘prohibit such actions’.339 The Court concluded that the non-refoulement principle does not apply extraterritorially; thus, the US Coast Guard practice of interdicting migrants on the high seas and returning them directly to Haiti was legal.340 It is difficult to agree with the Supreme Court’s position in Sale, as it negates the application of human rights on the high seas and in the eez and grants protection only if the rescuees have entered the State’s territorial sea or the territory of the State. This was confirmed by Justice Blackmun’s dissenting opinion, where he argued that the non-refoulement principle does not include any geographical restrictions: It limits only where a refugee may be sent ‘to’, not where he may be sent from. This is not surprising, given that the aim of the provision is to protect refugees against persecution.341 Despite limited State practice supporting the US’ restrictive interpretation of  the non-refoulement principle,342 this approach is highly criticised by Evangelia Tsourdi (eds), Exploring the Boundaries of Refugee Law: Current Protection Challenges (Brill Nijhoff 2015) 97. 336 The Immigration and Nationality Act of 1952 (Pub L 82–414, 66 Stat 163, enacted June 27, 1952). 337 Sale 184–187. For an in-depth assessment of the Supreme Court’s examination of the negotiating history behind the Refugee Convention, see Maarten Den Heijer, Europe and Extraterritorial Migration Control (Hart 2012) 137–139. 338 Sale 187; see also Tullio Scovazzi, ‘The Particular Problems of Migrants and Asylum Seekers Arriving by Sea’ in Laura Westra, Satvinder Juss, and Tullio Scovazzi (eds), Towards a Refugee Oriented Right of Asylum (Routledge 2016) 220. 339 Sale 183. 340 Ibid 187. 341 Ibid 193. 342 See eg the practice of Australia in cpcf v Minister for Immigration and Border Protection (28 January 2015) [2015] hca 1, S169/2014, para 11; see also Regina v Immigration Officer at

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­academics343 and international organisations.344 The unhcr has expressly rejected the textual interpretation of the Refugee Convention Article 33(1), presented in Sale and argues this article imposes a clear obligation to take measures to prevent the: …return [of] a refugee or asylum-seeker to a country where he or she would be risk of persecution or other serious harm, which applies wherever a State exercises jurisdiction, including at the frontier, on the high seas or on the territory of another State.345 More recently, unhcr affirmed its position within the context of maritime sar operations on the high seas.346 In establishing its position, it referred to the findings of human rights bodies and courts,347 most notably the ECtHR in Hirsi.348 In this case, the Court found that Italy, during an interception operation, had exercised de facto and de jure control over the applicants, therefore ‘triggering’ the State’s responsibilities under the echr.349 The Court examined the applicants’ complaints that their ‘push back’ to Libya by Italy constituted a violation of echr Article 3, as (i) they had been exposed to inhuman or degrading treatment in Libya,350 and (ii) they faced a danger of being returned to their respective countries, where there were real risks of being subjected to human right violations.351 Prague Airport and Another, Ex parte European Roma Rights Centre and Others [2004] ukhl 55, paras 68–75, where the Court affirmed the decision in Sale. 343 See eg Hathaway (n 165) 336–339; Lauterpacht and Bethlehem (n 293) 113; Goodwin-Gill and McAdam (n 293) 247–248; Mark Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes’ (2002) 14 ijrl 329, 346–347. 344 pace, ‘The Interception and Rescue of Asylum Seekers, Refugees and Irregular Migrants’ Resolution 1821 (21 June 2011) (pace Resolution 1821), paras 30–32. 345 unhcr, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (26 January 2007), para 24; see also paras 25–31; Sy (n 327) 472–475; unhcr, ‘Submission by the Office of the United Nations High Commissioner for Refugees in the Case of Hirsi and Others v. Italy (Application no. 27765/09)’, para 4.3. 346 2017 unhcr sar, para 2. 347 See the decision in the Haitian Centre for Human Rights v United States IACmHR Report No 51/96, Case No 10.675 (13 March 1997), para 157, where the IACmHR disagreed with the US Supreme Court’s findings in Sale and held that the non-refoulement principle has no ‘geographical limitations’. 348 Ch 5, s 5.2.2.2. 349 Ibid. 350 Hirsi, paras 85–91. 351 Ibid paras 139–140. For a comprehensive analysis of the ECtHR’s findings on violations of Art 3 of the echr, see Moreno-Lax, ‘Hirsi Jamaa and Others v Italy’(n 59) 582–586.

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As a result of being exposed to inhuman and degrading treatment in Libya, the applicants claimed that they had been exposed to ‘arbitrary refoulement in violation of the Convention’ when they were denied the opportunity to challenge their return or to seek international protection from the Italian authorities.352 Furthermore, it was argued that whilst on board, the Italian officials made no attempt to assess the personal circumstances of the applicants, thereby denying them the possibility of making a formal request for asylum.353 Of particular significance was Italy’s defence that the operation was conducted in the context of a rescue and that it had provided the ‘necessary humanitarian assistance’, thereby fulfilling its international obligations under unclos and sar.354 Additionally, it rejected the applicants’ argument that their request not to be disembarked in Libya be equated to a request for asylum.355 Finally, Italy argued that at the time, Libya was considered to be a safe host State which had ratified a number of human rights treaties, albeit not the Refugee Convention.356 In its assessment, the Court confirmed that protection from violations of the echr Article 3, implies a State obligation to take measures to ensure that no person is removed to a State where he or she would run the real risk of being subjected to torture or inhuman or degrading treatment.357 It held that the absence of any express request for asylum did not exempt Italy from its obligations under the echr, Article 3.358 The Court referred to the findings of various human rights organisations, including the unhcr and ai, which painted a ‘disturbing’ picture of the treatment of migrants in Libya at the time.359 Reports from these organisations indicated that migrants disembarked in Libya following interception by Italy on the high seas were exposed to a number of risks.360 The Court stated that there was no attempt by the Libyan authorities to provide international protection to migrants entering the State and that ‘…[a]ny person entering the country by illegal means was deemed to be clandestine and no  distinction was made between irregular ­migrants and a­ sylum-seekers’.361

352 353 354 355 356 357 358 359

Hirsi, para 85. Ibid para 87. Hirsi, para 95; see also Coppens (n 15) 199–200. Hirsi, para 96. Hirsi, paras 95–97. Hirsi, para 123; see also Ch 5, s 5.3.2. Hirsi, para 133. Hirsi, para 124. For the findings of these organisations; see the comments of third-party interveners in Hirsi, paras 101–109. 360 Hirsi, para 126. 361 Ibid para 125.

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Moreover, these individuals were ‘…systematically arrested and detained’ and exposed to inhuman conditions including torture, poor hygiene conditions, and lack of proper medical care.362 The Court concluded that the Italian authorities were fully aware of this situation, and that by transferring the applicants to Libya, the respondent State had refouled the applicants in violation of the echr Article 3.363 It is noteworthy that the Court stressed that implementing international rules governing rescue operations on the high seas also implies respect for the principle of non-refoulement.364 The position taken by the ECtHR in Hirsi, which is supported by unchr, is to be encouraged, as the duty of non-refoulement should apply at sea through the various jurisdictional links described above.365 This author agrees with the interpretation of the ECtHR and believes that every rescued person, particularly after having survived the perils of the sea, should be protected from refoulement. The Court explicitly stressed the extraterritorial application of the principle of non-refoulement on the high seas and in the eez. This implies that under certain circumstances flag, coastal, and sar States may be required to take measures to ensure that persons rescued by the shipmaster in areas beyond national jurisdiction are not exposed to direct or indirect refoulement.366 Such measures may include preventing the shipmaster from disembarking rescuees in a place which is considered unsafe or where the rescuees’ lives or freedoms may be threatened. Furthermore, as stressed by the ECtHR, the non-­ refoulement principle encompasses the right to effective sdps.367 5.3.2 Place of Safety and Respect for Non-refoulement The State obligation to implement measures which ensure that the shipmaster disembarks rescuees in a place of safety is fundamental for the application of non-refoulement.368 A place of safety has been defined in the 2004 imo 362 Ibid. 363 Ibid paras 137–138. 364 Ibid para 134; see also Concurring Opinion of Judge Pinto in Hirsi, 59–79. 365 Ch 5, s 5.2.2; see also Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press 2019) 212–215. 366 Moreno-Lax, ‘Hirsi Jamaa and Others v Italy’ (n 59) 574, 575. 367 Ch 5, s 5.3.3. 368 Martin Ratcovich, ‘The Concept of “Place of Safety”: Yet Another Self-Contained Maritime Rule or a Sustainable Solution to the Ever-Controversial Question of Where to Disembark Migrants Rescued at Sea?’ (2016) 33 aybil 81, 114; Gallagher and David (n 210) 478; Jean-François Durieux, ‘The Duty to Rescue Refugees’ (2016) 28 ijrl 637, 644–645; Papanicolopulu, International Law and the Protection of People at Sea (n 50) 189; Goodwin-Gill and McAdam (n 293) 233; Mallia and Gauci (n 282) 58–62. The concept of ‘a place of safety’ is understood by various organisations to encompass protection from ­refoulement.

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Guidelines,369 as a location where rescue operations are considered to terminate,370 where rescuees’ lives are no longer under threat, and where their basic needs, such as food, shelter, and medical needs, can be met.371 It is also a place from where transportation arrangements may be made for the rescuees’ next or final destination.372 Under the 2004 imo Guidelines, shipmasters are required to ensure that rescuees are not disembarked ‘to a place where their safety would be further jeopardized’.373 This implies that the shipmaster’s determination of a place of safety may require consideration of not only obligations related to the law of the sea, but also human rights law and refugee law responsibilities. Even if the shipmaster can disembark rescuees in the nearest site of rescue, this may not always be possible in light of the doctrine of non-refoulement. Relevant States involved in a rescue operation should cooperate with each other and the shipmaster in providing a suitable place of safety for disembarkation of rescued migrants.374 It is generally accepted that the relevant coastal or sar State is to provide the shipmaster with guidance when disembarking rescued persons in a particular place.375 This implies that the coastal State should take appropriate measures to prevent the shipmaster from disembarking rescuees in a place whether they risk being exposed to refoulement or indirect refoulement. Furthermore, if the shipmaster requests a State’s assistance regarding a place of safety to disembark, it should not instruct the shipmaster to revert to the authorities of another State in the full knowledge that the latter has a practice of requiring disembarkation in unsafe places or does not have an acceptable sdp.376 See eg pace Resolution 1821, para 9.5; 2009 fal Circular, para 2.5; Frontex, Code of Conduct for all Persons Participating in frontex Activities, art 5(a); Regulation (EU)2019/1896 of the European Parliament and of The Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 [2019] oj L 295/1, s 7, Art 36(1), s 8, Art 50(3); (EU) Maritime Surveillance Regulation, Art 2 (12). 369 Ch 3, s 3.4.1.4. 370 2004 imo Guidelines, para 6.12. 371 Ibid; see also 2015 Rescue at Sea Guide 13. 372 2004 imo Guidelines, para 6.12. 373 Ibid paras 5.1.6 and 6.17. 374 Ch 3, ss 3.2.3.3.c and 3.4.1.4. 375 2004 imo Guidelines, para 6.16; see also 2015 Rescue at Sea Guide 10–11; 2015 ics Guidance, s 7. 376 Ch 5, s 5.3.2. See also Statewatch Research Services, ‘Maritime Rescue in the Medi­ terranean – Rights and Obligations of Vessels under the sar Convention and Manifestations of the Principle of non-refoulement on the High Seas’ accessed 9 April 2019, s 3.5; 2018 ai Report (n 282) 20–21. Paolo Cuttitta, ‘From the Cap Anamur to Mare Nostrum: Humanitarianism and Migration Controls at the EU’s Maritime Borders’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection in Times of Emergencies (Centre for the Law of EU External Relations 2014) 34. ai, ‘Europe’s Sinking Shame: The Failure to Save Refugees and Migrants at Sea’ eur 03/1434/2015 (ai 2015) 41. Cuttitta (n 377) 34. Ch 5, s 5.3.1. Ch 4, s 4.3.2.1. App no 43985/13 (ECtHR, Decision of 16 September 2014). Ibid para 4.

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seek asylum or international protection.384 This prompted various ngos to file for interim measures to prevent their deportation.385 The Court accepted the request and subsequently issued interim measures prohibiting the operation, which the Maltese government respected.386 Despite the fundamental duty of the shipmaster to disembark rescuees in a place of safety in accordance with the principle of non-refoulement, in certain cases it may not be reasonable for him to respect the duty. Disembarkation in a place which may not provide adequate protection against refoulement or indirect refoulement may be required in exceptional circumstances, for example, when an urgent need exists to protect the vessel or lives on board.387 The unhcr refers to several examples of such disembarkation, such as when the rescuing ship was at risk of sinking, the need arose to provide urgent medical treatment or to save lives, and when the shipmaster was required to do so under duress.388 In such cases, the shipmaster should not be held responsible. Similarly, responsibility should also be excluded in cases of force majeure, such as the threat or use of force, or circumstances beyond the control of the shipmaster.389 5.3.3 Processing of Asylum Claims The doctrine of non-refoulement also requires States to provide rescuees with access to a fair and efficient assessment procedure to examine their request for asylum.390 To determine whether a State implements such a system, it is useful to refer to the unhcr position:391 i. Claims for international protection should be submitted to a specialised and professional body, which conducts interviews with the applicants at the initial stages of the procedure. Decisions should be provided in writing and applicants should have the opportunity to appeal.392 384 Ibid para 12. 385 Ibid para 18. 386 Ibid paras 20 and 27. 387 2017 unhcr sar, para 6. 388 Ibid. 389 Ibid. 390 See mss discussed in Ch 5, s 5.2.3.2.a. See also Fischer-Lescano, Löhr, and Tohidipur (n 315) 285–286; Vladislava Stoyanova, ‘The Principle of Non-Refoulement and the Right of Asylum-Seekers to Enter State Territory’ (2008) 3 ijhrl 1, 5. 391 unhcr ‘Maritime Interception Operations and the Processing of International Protection Claims: Legal Standards and Policy Considerations with respect to Extraterritorial Processing’ (Protection Policy Paper, November 2010) (2010 unhcr Maritime Interception Paper), paras 18–21. 392 Ibid para 19.

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ii.

Applicants must have both legal and physical access to proper asylum assessment procedures and the necessary facilities to submit these applications. This should include access to legal advice and interpretation, as well sufficient time for preparation of claims.393 iii. There should be the possibility of determination of refugee status on a group basis, if appropriate. For example, applicants who have originated from the same place and have similar claims.394 iv. Reception arrangements should provide an adequate standard of living,395 which takes into consideration the special needs of particularly vulnerable applicants, including children, women, trafficked individuals and victims of torture or trauma.396 States involved in rescue operations should take appropriate measures to ensure that the shipmaster disembarks or submits rescuees to an asylum process which adopts the above-mentioned criteria. This has become a major concern in rescues involving migrants fleeing Libya.397 The recent Libyan practice has been to rescue migrants in distress and return them to Libya, or to request shipmasters to do so.398 Besides reports of Libya’s systematic human rights violations,399 Libya is not a party to the Refugee Convention and does not presently implement a domestic asylum processing system.400 States should refrain from ordering the shipmaster to send rescuees not only to States where they may suffer inhuman or degrading treatment but also to places where there are no proper asylum processing systems.401 Furthermore, as confirmed in Hirsi,402 it is not necessary that the rescuees express a specific intent to seek asylum for the non-refoulement principle to apply. It is enough for the shipmaster to be aware, or to ought to have reasonably been aware, that given the 393 394 395 396 397

Ibid para 20. Ibid para 21. Ibid paras 23–27. Ibid paras 28–29. According to statistics provided by unhcr, almost 90 per cent of people migrating by sea through the Mediterranean Sea towards Europe depart from Libyan shores; see unhcr, ‘Libya’ accessed 15 July 2019. 398 unhcr, ‘Desperate Journeys – Refugees and Migrants Arriving in Europe and at Europe, January–December 2018’ accessed 15 July 2019, Executive Summary. This report states that in 2018, 85 per cent of migrants rescued or intercepted by the Libyan coastguard in Libya’s srr were disembarked in Libya. 399 unhcr, ‘unhcr Position on Returns to Libya Update ii’ (September 2018), 7–9. 400 UN Support Mission in Libya, Office of the High Commissioner for Human Rights, ‘Desperate and Dangerous: Report on the Human Rights Situation of Migrants and Refugees in Libya’ (18 December 2018), 21. 401 2017 unhcr sar, para 2. 402 Hirsi, paras 146–148.

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profile of the rescuee or the State where the return is planned, a risk of refoulement exists. In several scenarios asylum seekers rescued by the shipmaster may fall under the jurisdiction or control of the flag, coastal, or sar State, so it is important to understand the responsibilities of these States towards rescuees. In principle, the shipmaster may find himself subject to the jurisdiction of more than one State.403 If the rescue occurs on the high seas, then the shipmaster is obliged to follow the flag State’s asylum procedures. When the vessel is in the territorial sea or internal waters of a State, the shipmaster may have to follow the flag and the coastal States’ asylum procedures.404 It is generally recognised that the shipmaster is not responsible for assessing or determining asylum claims, and he should inform rescuees accordingly.405 Nevertheless, the flag State could provide instructions to shipmasters on asylum protection and procedures. Flag States should ensure that the shipmaster is aware of the rights of asylum seekers and of the extra level of protection they enjoy. He should be advised not to disregard any asylum requests but to treat them with proper care and attention.406 If rescuees indicate in any way that they fear persecution or ill treatment if disembarked in a particular place, the shipmaster should inform the flag State authorities accordingly. Once informed, the flag State should take appropriate measures to ensure that rescuees have access to a sdp. Could such measures include asylum processing at sea? Certain EU States, such as Italy and Austria, have in fact lobbied for asylum processing at sea, specifically a system whereby persons rescued in the territorial sea of an EU member State should have his or her asylum request processed on board the rescuing vessel.407 However, organisations such as unhcr have argued that the assessment procedures at sea are likely to be inadequate.408 Rescuees may not be in a proper condition to provide adequate reasons for their claim. Furthermore, even if it was possible to make an initial assessment at sea,409 the procedural rights required under the 403 404 405 406 407

Ch 5, s 5.2.2.3. Gallagher and David (n 210) 466. 2015 Rescue at Sea Guide 11. See also Ch 3, s 3.4.1.5. ‘Austria, Italy Proposed Holding Migrants on Ships for Days’ The Times of Malta (Birkirkara, 14 September 2018); see also Alice, ‘Can Asylum Seekers Really Be Screened at Sea?’ Euronews (Lyon, 15 September 2018) accessed 29 July 2019. 408 2010 unhcr Maritime Interception Paper, paras 55–59; see also 2015 Rescue at Sea Guide, 14. 409 Eg unhcr asserts that in exceptional circumstances, initial profiling or pre-screening may be permitted on board the ship by the intercepting State to ensure that persons who

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doctrine of non-refoulement would not be adequately protected.410 For example, rescuees on board a ship would not have access to legal advice or be able to prepare their asylum claims with experts.411 Furthermore, unhcr affirms that it is not appropriate for the shipmaster to assess asylum requests, as he may: …not be aware of the nationality or status of the persons in distress and cannot reasonably be expected to assume any responsibilities beyond rescue. The identification of asylum-seekers and the determination of their status is the responsibility of State officials adequately trained for that task.412 In this respect, noteworthy is the US practice of subjecting rescuees to shipboard asylum pre-screening procedures, depending on their nationality.413 For example, Cuban rescuees are immediately interviewed by asylum officers on board US Coast Guard ships.414 If the individual qualifies after this initial screening, he or she is transferred to Guantánamo Bay for further status determination.415 Chinese rescuees are requested to fill out questionnaires to assess their asylum claims.416 The situation is different for other rescued migrants, predominately Haitians, who are not pre-screened at sea.417 Instead, these individuals are immediately returned to their place of embarkation or country of origin, unless they express a real manifestation of fear. According to Frenzen, credible demonstrations of manifestation of fear may include visible injuries or verbal statements which indicate that the migrant will be harmed if r­ eturned to the State of departure.418 Not all States adopt the US approach. Under Dutch law, Dutch-registered ships are not considered Dutch territory; therefore, the shipmaster is not entitled to consider asylum requests.419 require international protection are identified; see 2010 unhcr Maritime Interception Paper, para 55. 410 2010 UNHCR Maritime Interception Paper, para 55. 411 Ibid para 58. 412 unhcr, ‘Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea’ (18 March 2002), para 22; see also Ch 3, s 3.4.1.5. 413 Frenzen, ‘Responses to “Boat Migration”’ (n 311) 287. 414 Ibid. 415 Frenzen, ‘US Migrant Interdiction’ (n 335) 391. 416 Azadeh Dastyari, United States Migrant Interdiction and the Detention of Refugees in Guantánamo Bay (cup 2015) 141. 417 Frenzen, ‘Responses to “Boat Migration”’ (n 311) 287. 418 Ibid. 419 Ernst Hirsch Ballin, ‘Letter from the Minister of Justice to the President of the House of Representatives’ (The Hague, 3 September 2010) 21 501–28 Defence Council No 61 accessed 9 May 2019, 2. 420 The mv Aquarius Dignitus was involved in numerous rescue operations between 2017 and 2018; see Melanie Fink and Kristof Gombeer, ‘The Aquarius Incident: Navigating the Turbulent Waters of International Law’, ejil:Talk! (14 June 2018) accessed 19 May 2019. 421 ‘UK Should Take in 141 Migrants Stranded on Rescue Ship, Italy Says’ The Guardian (London, 13 August 2018). 422 Human Rights at Sea Review, ‘Human Rights and International Rule of Law Ramifications of the De-flagging of M/V Aquarius Dignitus’ (Press Release, 11 February 2019) 4. 423 The Alan Kurdi is operated by the German ngo Sea-Eye; see Sea-Eye, ‘Home Page’ accessed 20 May 2019. 424 David Hudson, ‘Migrant Rescue Vessel Alan Kurdi Claims Food Shortage Aboard Stranded Ship’ Malta Today (San Gwann, 7 April 2019). 425 Samuel Osborne, ‘Italy’s Far-right Salvini Refused to Let 64 Rescued Refugees Dock in its Ports: “Good, Go to Hamburg”’ The Independent (London, 4 April 2019) accessed 21 May 2019.

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The possibility of flag State responsibility for processing the asylum claims of rescuees on board its vessels may be conceivable if the flag State is close to the site of rescue. If this is not the case, it may be unreasonable to expect the shipmaster to sail long distances carrying large groups of vulnerable people.426 It may therefore be more appropriate for the flag State to request the shipmaster to seek assistance from a coastal or sar State close to the rescue site. As pertinently observed by Barnes: [t]he ability of a master to act in accordance with general human rights norms, or comply with the non-refoulement principle is dependent on a coastal State willing to allow disembarkation…427 Once the shipmaster has informed the relevant coastal or sar State authorities that rescuees on board his vessel are expressing fears of ill treatment if returned to or disembarked in a particular place, the coastal State should take appropriate measures to admit asylum seekers and grant them access to sdps ashore. However, as discussed above,428 States appear generally reluctant to allow disembarkation for such purposes, as it requires them to host irregular migrants until their asylum claims are processed, which is often a lengthy procedure. Furthermore, for EU member States, particularly those bordering the Mediterranean, additional responsibilities are imposed for examining asylum applications under EU Regulation No 604/2013,429 which regulates the criteria and mechanisms for determining the member State responsible for examining an application for international protection lodged in one of the member States by a third-country national or a stateless person (recast). The Dublin iii Regulation provides that if no member State can be designated as responsible based on the criteria listed in the regulation,430 the first member State where the 426 427 428 429

Richard Barnes, ‘Refugee Law at Sea’ (2004) 53 icql 47, 67. Ibid 63. See Ch 3, s 3.2.3.3.c and Ch 4, s 4.2.2.2.b. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] oj L180/31 (Dublin iii Regulation). See generally European Asylum Support Office, ‘Judicial Analysis: Asylum Procedures and the Principle of non-refoulement’ (European Asylum Support Office 2018). 430 Dublin iii Regulation, ch iii provides a hierarchy of criteria for determining which ­member State is responsible for examining an asylum claim. These include family

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a­ pplication for international protection was lodged will be responsible for examining it.431 This system has been problematic for Italy, Malta, and Spain, which are at the front line of the irregular migration by sea problem and have often refused the disembarkation of rescuees.432 The Italian Code of Navigation considers Italian-flagged ships to be Italian territory.433 Consequently, it is possible that once a rescuee makes a claim for asylum with the shipmaster, then Italy, under the Dublin iii Regulation, would be considered responsible for assessing the claim. It may be interesting to consider joint measures which could be implemented by the coastal or sar State and flag State to provide asylum seekers rescued by the shipmaster access to appropriate sdps. In the wake of the ­Indochinese crisis,434 the international community considered a system whereby coastal States permitted disembarkation of rescued migrants if the flag State of the rescuing vessel would take responsibility for resettling asylum seekers.435 This approach appears to be mirrored by current ad hoc agreements,436 being implemented by certain EU member States concerning relocation of migrants rescued within the Mediterranean.437 This practice has

431 432 433 434 435 436

437

c­ onsiderations, issuance and possession of a visa or residence permit in a member State, and circumstances surrounding the entry into the EU. Ibid Art 3(1). See generally Anna Triandafyllidou, ‘Multi-levelling and Externalizing Migration and Asylum: Lessons from Southern European Islands’ (2014) 9 isj 7, 7–22. Italian Code of Navigation, art 4. Ch 1, s 1.2. unga ‘Report of the Secretary-General on Oceans and the Law of the Sea’ (7 November 1979) UN Doc A/34/627 (1979 Report on the Oceans and the Law of the Sea), paras 34–35. There have been proposals aimed to establish a more permanent mechanism for the speedy disembarkation of persons rescued at sea, and their relocation among EU member States. However, attempts in this regard appeared to be unsuccessful as the proposals received marginal support from the majority of EU member States; see Nikolaj Nielsen, ‘EU Migrant Boat Plan fails to get Extra Support’ (Brussels, 9 October 2019) accessed 10 October 2019; see also Matthew Vella, ‘Malta Plan for Migrant Relocation gets Tepid Reaction from EU Ministers’ Malta Today (San Gwann, 9 October 2019) accessed 10 October 2019. See eg the relocation agreement in the Sea-Watch 3 case, where Italy permitted disembarkation of forty-seven rescued migrants following an agreement between EU member States to receive the migrants. For Malta’s role in broking rescued migrant relocation agreements, see the June 2018 Lifeline incident, where the Maltese prime minister announced that Mata would offer rescuees a port for disembarkation following an ad hoc agreement between eight EU member States, including Malta, Ireland, France, Belgium, the Netherlands, and Portugal; see doim, ‘Press Release by the Office of the Prime Minis-

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seen States such as ­Italy and Malta offer a port for disembarkation on the grounds that rescued migrants are then received by other EU States.438 This relocation system appears to be founded on solidarity between EU coastal or sar States and other EU States to collectively manage the irregular migratory flows. It has yet to be seen whether flag States that are not EU members will accept the assessment asylum claims and resettling of asylum seekers rescued by their vessels, as occurred during the Indochinese crisis. For such a system to be operative, it must also be proven that the flag State has in place effective asylum procedures. This may be problematic in the case of some registries that lack the political will or legal procedures and systems to determine asylum claims, or the financial means to absorb the costs associated with the resettlement of asylum seekers. For example, the MI, which is the world’s third largest registry,439 is not a party to the Refugee Convention.440 At present the country lacks an effective domestic system to provide asylum seekers with international protection.441

438

439 440 441

ter’ (27 June 2018). See also the January 2019 Sea-Watch 3 matter discussed in Ch 4, s 4.3.2.1., where Malta allowed disembarkation of forty-nine rescued migrants, having reached a relocation agreement with a number of EU member States, including Italy, German, France, Portugal, Ireland, and the Netherlands; see ecre, ‘Country Report: Malta’ (Asylum Information Database, 2018 Update) 16–17 accessed 3 January 2019; Ivan Martin, ‘Migrants Can Only Disembark when Host Agreements Are In Place’ The Times of Malta (Birkirkara, 8 January 2019). For an interesting assessment of relocation agreements in the Mediterranean; see Sergio Carrera and Roberto Cortinovis, ‘Search and rescue, disembarkation and relocation arrangements in the Mediterranean, Sailing Away from Responsibility’, No 2019-10 ceps Paper in Liberty and Security (June 2019). Relocation agreements often involve the intervention of the EU Commission. By October 2019, the EU Commission coordinated 14 disembarkations, where participating member States pledged to redistribute 1,187 migrants, 368 of which have already been relocated; see European Commission, ‘Communication from the Commission to the European Parliament, the European Council and the Council Progress report on the Implementation of the European Agenda on Migration’ (16 October 2019) com (2019) 481, 10–11. See Lloyd’s List, ‘Top 10 Flag States 2019’ accessed 3 December 2019. unhcr, ‘State Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol’ accessed 1 July 2019. unhcr, ‘Submission by the United Nations High Commissioner for Refugees to the Office of the High Commissioner for Human Rights Compilation Report – Universal Periodic Review: the Marshall Islands’ (April 2010) accessed 1 July 2019, 3.

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5.4 Conclusion The analysis undertaken in this chapter concludes that human rights law obligations apply to rescue operations under unclos Article 98. This has important ramifications as States have responsibilities beyond the law of the sea, and must ensure that shipmasters respect their human rights obligations. The extension of human rights jurisdiction to all maritime areas has been recognised by international courts and bodies such as the ECtHR and the UN Committee against Torture. It was concluded that the exercise of human rights jurisdiction may be wider at sea and may encompass the exercise of de facto jurisdiction or control. Once rescuees fall within de facto jurisdiction or control of a State, this ‘triggers’ human rights obligations, irrespective of the characterisation of the act, or where it was exercised. Therefore, States involved in rescue operations conducted by shipmasters, even if, on the high seas may have human rights responsibilities. For example, a sar State, that is informed of persons in distress, even if the rescue operation does not occur in its zones of jurisdiction. It was concluded that there may be instances in rescue operations where the shipmaster’s actions lead to human rights abuses, in particular, violations of the right to life and prohibition of torture or inhuman and degrading treatment or punishment. It was established that flag, coastal, or sar States have responsibilities to protect human rights, and must adopt measures to prevent, investigate and punish violations. This duty requires States to conduct adequate investigations into the conduct of shipmasters who violate human rights, and to punish them appropriately. The Chapter concludes that State measures under refugee law may affect the shipmaster’s duty to render assistance. It is generally accepted that the non-refoulement obligation applies extraterritorially in rescue operations on the high seas. An essential component of this principle is access to an adequate asylum sdps. Asylum processing at sea is questionable, particularly since shipmaster has no authority to assess claims. States must therefore take measures to allow the shipmaster to disembark in a place where they have ­access to effective asylum assessment procedures, and where the procedural aspects of this process are satisfied.

Chapter 6

State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea 6.1 Introduction This chapter examines the extent to which, if any, violations of international obligations committed by the shipmaster in rescue operations attract international State responsibility. The first part of the chapter reviews the doctrine of State responsibility. This is followed by an analysis of the principles governing the attribution of State responsibility, with a focus on the doctrine of due diligence as a legal mechanism applied to gauge State responsibility. The results of this analysis are applied to acts or omissions of the shipmaster in rescue operations. 6.2

Doctrine of State Responsibility under International Law

unclos does not provide any specific rules on the issue of the shipmaster engaging State responsibility in rescue operations. It is therefore necessary to examine the rules of general international law, which are reflected in the ilc’s Articles on the Responsibility of States for Internationally Wrongful Acts.1 Although the arsiwa does not constitute a legally binding instrument, it is considered an authoritative statement on the law of international responsibility,2 as recognised in international judgments.3 Under the a­ rsiwa,

1 ilc, ‘Articles on Responsibility of States for Internationally Wrongful Acts’, UN Doc.A/56/10, Ch iv.E.1. (arsiwa). 2 Berglind Halldórsdóttir Birkland, ‘Reining in Non-State Actors: State Responsibility and Attribution in Cases of Genocide’ (2009) 84 NYULRev 1623, 1627; Fernando Lusa Bordin, ‘Reflections of Customary Law: The Authority of Codification Conventions and ilc Draft Articles in International Law’ (2014) 63 iclq 535, 536, 538. See generally Alain Pellet, ‘The ilc’s Articles on State Responsibility for Internationally Wrongful Acts and Related Texts’ in James Crawford and others (eds), The Law of International Responsibility (oup 2010) 75–92. 3 See eg M/V “Saiga” (No. 2), paras 93, 113, and 171; see further Report of the Secretary-General, ‘Responsibility of States for Internationally Wrongfully Acts, Compilation of Decisions of International Courts, Tribunals and other Bodies’ (21 April 2016) UN Doc A/71/80.

© koninklijke brill nv, leiden, ���0 | doi:10.1163/9789004438255_008

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every i­ nternationally wrongful act of a State4 entails the responsibility of that State.5 However, not all acts of a State may fulfil the requirements of wrongfulness. For State responsibility to arise, the State must engage in conduct that combines two elements: (i) it is attributable to the State under international law,6 and (ii) it must constitute a breach of an international legal obligation in force for that State at the time.7 In relation to attributability, the State, as an abstract entity, acts through its organs.8 When a person acts on behalf of a State, those acts may be attributed to the State and may lead to State responsibility under international law.9 Generally, the act of a private person, such as the shipmaster, is not attributable to the State unless his act is accompanied by some act or omission10 on the part of the State for which it bears responsibility, or the shipmaster’s conduct is being directed or controlled by the State.11 With respect to the second element, such a breach may arise when the conduct of the State is not inconformity with what is required of it by that international obligation,12 whether it emerges from treaty or customary international law. 6.3

Attribution of State Responsibility under International Law

6.3.1 General Principles to Gauge Attribution To engage State responsibility, the conduct in question must be attributable to  the State under international law.13 The doctrine of attribution therefore 4 5 6 7 8 9 10

11 12 13

According to Art 3 of the arsiwa, the characterisation of an internationally wrongful act is governed by international law. Such characterisation is not affected by the characterisation of the same act as lawful by internal law. arsiwa, Art 1. Ibid Art 2(a). Ibid Art 2(b). arsiwa, Art 12; see generally Gordon A Christenson, ‘Attributing Acts of Omission to the State’ (1991) 12 MichJIntlL 312. arsiwa, Arts 4–11. Franck Latty, ‘Actions and Omissions’ in James Crawford and others (eds), The Law of International Responsibility (oup 2010) 355–363; see also the Tehran Case, discussed further below, where the icj found that Iran was responsible for the failure of the Iranian authorities to take appropriate measures to protect the US Embassy and its staff from violent protesters. Ch 6, ss 6.4.1 and 6.4.2. arsiwa, Art 12. Ch 6, s 6.2. See generally Robert Kolb, The International Law of State Responsibility (EE Elgar 2017) 70–108; see further Luigi Condorelli and Claus Kress, ‘The Rules of Attribution: General Considerations’ in James Crawford and others (eds), The Law of International

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represents the link between any internationally wrongful act committed and the State.14 General principles relating to attribution are based on rules determined by international law, and not merely on the basis of a factual causality or linkage.15 This is because the State, as an abstract entity,16 acts through its organs of government, or persons who operate under its direction or control.17 Attribution thus determines the conditions or circumstances under which acts or omissions of these organs or individuals can engage State responsibility.18 Under the Article 4 of the arsiwa, the conduct of any State organ or officials will be attributable to a State as a matter of international law,19 such as when the State organ or official is acting in their official capacity or apparent authority, even if they act in an ultra vires manner.20 In the context of a rescue operation, the shipmaster of a warship or government-owned vessel used for non-commercial purposes would be considered a de jure organ of the State. Thus, if such a shipmaster of such as vessel fails to fulfil international obligations, his conduct is attributable to the flag State. On 12 June 2018, a dinghy carrying 116 people began to take on water off the coast of Libya.21 Survivors ­Responsibility (oup 2010) 225–226; James Crawford, State Responsibility: The General Part (cup 2013) 113–116. 14 James Crawford, Brownlie’s Principles of Public International Law (9th edn, oup 2019) 526–536. 15 ilc, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) ii (2) ybilc (Draft arsiwa with commentaries), 38, para 4; see also Condorelli and Kress (n 13) 225–228. 16 Malcolm N Shaw, International Law (8th edn, cup 2017) 595; Kolb (n 13) 70; Crawford, State Responsibility (n 13) 113. 17 Draft arsiwa with commentaries 38, para 2; Condorelli and Kress (n 13) 221. See also Shaw’s interpretation of the definition of attribution under international law as ‘the legal fiction which assimilates the actions or omissions of state officials to the state itself which renders the state liable for damage resulting to the property or person of an alien’; Shaw (n 16) 595. 18 Condorelli and Kress (n 13) 221. 19 arsiwa, Art 4(1). The principle that a State is held responsible for the conduct of its own organs is well-established in international law; see Draft arsiwa with commentaries 40, para 3; Shaw (n 16) 595; Crawford, State Responsibility (n 13) 116–117. See also Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] icj Rep 62, para 62; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Merits, Judgment [2005] icj Rep 168, para 160; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Merits, Judgment [2007] icj Rep 43 (Genocide Case), para 385. 20 arsiwa, Art 7. 21 Lorenzo Tondo, ‘uss Trenton Rescued 42 People but Allegedly Ignored Distress Calls Before Dinghy Capsized’ The Guardian (London, 9 November 2018).

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reported that before their vessel sank, the migrants on board made repeated attempts to attract the attention of the usns Trenton, a US warship, which appeared to avoid them by changing course.22 It was reported that when the usns Trenton allegedly returned to the scene, the vessel had sunk, killing ­seventy-six people.23 Investigations are ongoing, but if sufficient evidence is found to show that the shipmaster was in a position to assist but failed to do so, his acts would be attributable to the US, possibly attracting State responsibility. However, attribution of State responsibility for violations of international obligations by the shipmaster of a commercial vessel is more complex. 6.3.2 Conduct of Private Persons Attributable to the State Under international law the conduct of a private person or group of persons cannot be attributed to the State.24 Nevertheless, in certain situations such conduct is imputed to the State because of the existence of a specific factual relationship between said individual and the State.25 Article 8 of the arsiwa provides as follows: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.26 Therefore, Article 8 attributes conduct either based on a State’s (i) instructions or (ii) direction or control. With respect to the issuing of instructions, this criterion, as noted by Shaw, remains rather uncontroversial.27 But the second ­criterion is more complex: Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation. The principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State’s direction or control.28 22 Ibid. 23 ‘The Latest: Probe into Claims US Ship Delayed Migrant Rescue’ Associated Press (New York, November 2018). 24 Ch 6, s 6.2. 25 Draft arsiwa with commentaries 47, para 1. 26 Ibid para 3. 27 Shaw (n 16) 598. 28 Draft arsiwa with commentaries 47, para 3.

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International courts and tribunals have advanced various tests aimed at establishing the extent or degree of direction or control.29 In the Nicaragua Case, the icj concluded that despite the logistical, supervisory, and financial support the US gave the Contras rebel group, the former had not exercised the requisite degree of control over the latter’s activities to attribute responsibility for the specific acts committed by them in breach of humanitarian and human rights laws.30 The Court held that the test to attribute State responsibility for the conduct of private persons or entities is that the State had to have exercised ‘effective control’ over each act carried out.31 The test of ‘effective control’ in the Nicaragua Case contrasts with the approach taken by the icty Appeals Chamber in Prosecutor v Duško Tádic,32 which applied the rules of State responsibility to determine whether the Bosnian Serbian forces were to be acting as de facto agent of the Federal Republic of Yugoslavia.33 The Chamber appears to have applied a more flexible approach, where it held that the degree of control that the State exercises over individuals may vary according to the circumstances of the case. Furthermore, it concluded that the test is whether persons are under the ‘overall control’ of that State.34 Unlike the icj, the Chamber found it unnecessary that the State must have issued instructions concerning each specific action.35 The icj revisited this issue in the 2007 Genocide Case, where the Court had to assess the responsibility of Serbia and Montenegro (the then Federal Republic of Yugoslavia)36 for alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide37 resulting from the conduct of the Bosnian Serbian forces in the massacre perpetrated on 8,000 individuals in Srebrenica.38 The icj examined whether the Bosnian Serbian forces where acting under the ‘effective control’ of the fry. In its judgment, the Court reaffirmed that ‘effective control’ is required:

29

Olivier De Frouville, ‘Attribution of Conduct to the State: Private Individuals’ in James Crawford and others (eds), The Law of International Responsibility (oup 2010) 266–271; see also Halldórsdóttir Birkland (n 2) 1642–1646. 30 Nicaragua Case, para 109. 31 Ibid para 115. 32 (Judgment) Appeals Chamber of icty IT-94-1-A (15 July 1999). 33 Ibid paras 146–162. 34 Ibid para 137. 35 Ibid. 36 Genocide Case, para 65. 37 (adopted 9 December 1948, entered into force 12 January 1951) 78 unts 277 (Genocide Convention). 38 Genocide Case, para 65.

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…in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.39 Generally, when a State has acted in good faith and without negligence,40 the conduct of private persons cannot be attributed to the State for the purposes of responsibility. The State is however under an obligation to exercise due diligence to prevent unlawful acts of a private persons under its de facto or de jure jurisdiction.41 The following section considers the main rules governing the due diligence obligation. 6.3.3 Due Diligence and the Attribution of State Responsibility Once the linkage between an international wrongful act and the State has been established, it becomes necessary to assess to what extent, if at all, attribution constitutes or attracts that State’s responsibility.42 The general rule to gauge the level of responsibility is the application of the due diligence test. Due diligence has been defined as an obligation of conduct on the part of the State.43 It is concerned with the standard of care which must be exercised by a State to respect an international obligation.44 Due diligence does not necessarily require the attainment of a result, but that reasonable steps are taken towards that end, that is, to fulfil international obligations and prevent breaches thereof. Interestingly, the arsiwa makes no direct reference to the principle of due diligence. The ilc notes the arsiwa purposely omits any requirement of fault or wrongful intent on the part of the State for there to be an internationally wrongful act.45 Yet this does not mean that the doctrine of fault does not feature in the law of State responsibility. The rules found in the arsiwa may impose different standards of fault, which vary from strict liability or absolute 39 40

Ibid paras 400 and 413. Home Frontier and Foreign Missionary Society of the United Brethren in Christ (United States) v Great Britain (1920) 6 riaa 42, 44. 41 Mixed Claims Commission, Sambiaggio Case (Italy-Venezuela) (1903) 10 riaa 499, 513. The doctrine of due diligence for the purposes of gauging a State’s level of responsibility are discussed in detail in Ch 6, ss 6.4.1 and 6.4.2. 42 Joanna Kulesza, Due Diligence in International Law (Brill Nijhoff 2016) 266; Jonathan Bonnitcha and Robert McCorquodale, ‘The Concept of “Due Diligence” in the UN Guiding Principles on Business and Human Rights’ (2017) 28 ejil 899, 903. 43 Ch 6, s 6.3.3.1; see also Timo Koivurova, ‘Due Diligence’ (2010) mpepil 1034, para 1. 44 Ch 6, s 6.3.3.1. 45 Draft arsiwa with commentaries 34, para 3.

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l­ iability to lack of due diligence.46 The scope and content of the due diligence obligation depends on the circumstances of the case and the primary international obligation violated.47 For example, as shown below,48 due diligence may be applied strictly in cases of violation of international law by private persons. The doctrine of due diligence has been considered and elaborated in various branches of international law, in particular, international environmental law. The follow sections provide an analysis of the rules regulating due diligence, the results of which are subsequently applied to the shipmaster’s duty to render assistance. 6.3.3.1 An Obligation of Conduct, Not of Result The due diligence test requires an examination of the conduct of State behaviour, and it does not necessarily depend on the attainment of the results thereof.49 The ‘relative, not absolute’ obligation of conduct50 is often referred to in connection with the duty to prevent transboundary harm to the environment. Principle 21 of the Declaration of the United Nations Conference on the Human Environment51 provides that: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.52 46 Ibid. 47 Ibid. 48 Ch 6, s 6.3.3.4. 49 Constantin P Economides, ‘Content of the Obligation: Obligations of Means and Obligations of Result’ in James Crawford and others (eds), The Law of State Responsibility (oup 2010) 379; see also Duncan French and Tim Stephens, ‘ila Study Group on Due Diligence in International Law, Second Report’ (July 2016) (ila Second Report on Due Diligence) 3. 50 Crawford, State Responsibility (n 13) 227; Riccardo Pisillo-Mazzeschi, ‘The Due Diligence Rule and the Nature of International Responsibility of States’ (1992) 35 gyil 9, 46; Kulesza (n 42) 264–266; Ian Yuying Liu, ‘State Responsibility and Cyberattacks: Defining Due Diligence Obligations’ (2017) 4 ijicl 191, 201; Luke Chircop, ‘A Due Diligence Standard of Attribution in Cyberspace’ (2018) 67 iclq 643, 655; Duncan French and Tim Stephens, ‘ila Study Group on Due Diligence in International Law, First Report’ (7 March 2014) (ila First Report on Due Diligence) 17. 51 Declaration of the United Nations Conference on the Human Environment (Stockholm, 16 June 1972) UN Doc.A/Conf.48/14/Rev.1(1973) (Stockholm Declaration). 52 Stockholm Declaration, Principle 21; see also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226, para 28.

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Furthermore, ilc Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities,53 Article 3, reflecting Principle 21, require States to exercise due diligence and ‘take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof’.54 The ilc has clarified that the due diligence obligation is not intended to guarantee that harm does not occur at all; instead, it is intended to ensure that the State of origin has exerted ‘its best possible efforts to minimize the risk’ to the environment.55 This element of the due diligence obligation also emerges from treaty regimes such as unclos, for example, Article 194 which requires States to take all necessary measures, consistent with the convention, to prevent, reduce and control pollution of the marine environment.56 International jurisprudence has confirmed that the due diligence obligation is one of conduct rather than one of result. In the Genocide Case, the icj limited its assessment of the scope of the due diligence obligation under the Genocide Convention: …the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances … the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible.57 The icj’s findings are also reflected in the itlos Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area.58 Following a decision taken by the Council of the International Seabed Authority,59 the isa Secretary-General made a request for an advisory opinion concerning the extent of responsibilities and liabilities of sponsoring States conducting mining activities in the Area under 53

ilc, ‘Articles on the Prevention of Transboundary Harm from Hazardous Activities’, UN Doc.A/56/10 (apthha). 54 apthha, Art 3; see also ilc, ‘Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities with Commentaries’ (2001) ii(2) ybilc 148 (Draft apthha with commentaries) 154, para 7. 55 Draft apthha with commentaries 154, para 7. 56 unclos, Art 194. 57 Genocide Case, para 430. 58 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber) (Advisory Opinion of 2 February 2011) itlos Reports 10 (Seabed Opinion). 59 Hereafter referred to as the ISA.

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unclos and the Agreement relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982.60 In this respect, the Chamber assessed the nature of the responsibility and obligation to ‘ensure’ that States engaged in mining activities in the Area comply with their obligations to protect the marine environment, as enshrined in Articles 139(1) and Article 4(4) of Annex iii of unclos.61 The Chamber held that the obligation to ‘ensure’ reflects the due diligence obligation, which is one of conduct and not result: The sponsoring State’s obligation ‘to ensure’ is not an obligation to achieve, in each and every case … Rather, it is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result.62 This issue was elaborated further by itlos in the Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc)63 discussed further below.64 6.3.3.2 Reasonable Measures The due diligence obligation imposes a requirement on the State to take all measures it could be reasonably expected to take to prevent harm or minimise the risk thereof, which may result from a failure to meet its international obligations.65 The icj utilised this due diligence standard in the Genocide Case66 to establish whether a State attracts international responsibility. The Court held that responsibility does not result in all cases where genocide has occurred, but it is incurred if the State ‘manifestly failed to take all measures to prevent genocide which were within its power, and which may have contributed to preventing the genocide’.67 The requirement to undertake reasonable measures

60 61 62 63 64 65 66 67

(adopted 28 July 1994, entered into force 28 July 1996) 1836 unts 42; see Seabed Opinion, para 1. Seabed Opinion, para 107. Ibid para 110. Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc) (Request for Advisory Opinion submitted to the Tribunal) (Advisory Opinion of 2 April 2015) itlos Reports 4 (iuu Fishing Opinion). Ch 6, s 6.3.3.2. ila Second Report on Due Diligence (n 49) 8. Ch 6, s 6.3.3.1. Genocide Case, para 430.

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for a State to fulfil its international responsibilities is often linked to the standard of due diligence expected of a proper government.68 As observed by the ila, this so-called due diligence level of ‘reasonableness’ or ‘good governance’ is linked to what could be expected from a State.69 It has been argued that such standards imply, for example, a need to adopt effective laws and administrative regulations.70 In this respect, certain international instruments explicitly prescribe specific duties to legislate to prevent certain conduct. For example, unclos Article 207, requires all States to: …adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures.71 Furthermore, as was confirmed by the icj in the Pulp Mills Case,72 the due diligence obligation necessitates not only the adoption of appropriate rules and measures by the State which conform to applicable international agreements and international agreed standards, but also the exercise of: …a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as 68

69

70 71

72

ila Second Report on Due Diligence (n 49) 9; Alwyn V Freeman, ‘Responsibility of States for Unlawful Acts of their Armed Forces’ in Hague Academy of International Law (ed), Collected Course of the Hague Academy of International Law Volume 88 (Martinus Nijhoff Publishers 1955) 277–278; Pierre Dupuy, ‘Due Diligence in the International Law of Liability’, in oecd, Legal Aspects of Transfrontier Pollution (oecd 1977) 369. ila Second Report on Due Diligence (n 49) 8–9. This standard may at times be difficult to define, as an assessment of such would depend on the circumstances of the case, eg the State’s level of development or the effectiveness of control of its territory; see the Genocide Case, para 430; Rio Declaration on Environment and Development, UN Doc.A/ CONF.151/26 (Vol i), 31 ilm 874 (1992 Rio Declaration) Principle 7. Malgosia Fitzmaurice, ‘Responsibility and Climate Change’ (2010) 53 gyil 89, 199; Kolb (n 13) 65. unclos, Art 207(1). See also 1992 Rio Declaration, Principle 11; apthha, Arts 5 and 6. The due diligence requirement to take reasonable measures is embodied in regional treaties concerned with the protection of the marine environment; see Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 unts 27, Art 4(1); Convention on the Protection of the Marine Environment of the Baltic Sea Area (adopted 9 April 1992, entered into force 17 January 2000) 1507 unts 167, Art 3(2). Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment [2010] icj Rep 14 (Pulp Mills Case).

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the monitoring of activities undertaken by such operators, to safeguard the rights of the other party.73 itlos also examined this due diligence requirement in the iuu Fishing Opinion. On 27 March 2013, the permanent secretary of the Sub-Regional Fisheries Commission requested an advisory opinion to, inter alia, clarify the extent to which a flag State may be held liable for iuu fishing activities conducted by its registered vessels.74 Essentially, the Tribunal examined a State’s responsibility to abide by its due diligence obligations to take preventive measures in the effective exercise of flag State duties under unclos Article 94.75 In line with the findings of the icj in its jurisprudence discussed above,76 the Tribunal considered that the obligation of due diligence refers to the standard of care which should be demonstrated by the flag State as opposed to achieving a certain result.77 In its view, responsibility of the flag State would only arise from its failure to comply with due diligence obligations78 concerning iuu fishing activities conducted by vessels flying its flag in the eez of srfc member States.79 The Tribunal considered the that due diligence requires the flag State to do its ‘utmost’ to prevent iuu fishing80 and that unclos should be the guiding instrument concerning measures it should take to comply with this obligation.81 In this regard, the Tribunal suggested, inter alia, that the flag State should adopt (i) measures to monitor and ensure compliance with their vessels with its laws,82 (ii) have in place sanctions of sufficient gravity so as to deter violations, and (iii) investigate alleged iuu fishing.83 The findings of the icj in the Pulp Mills Case and itlos in the iuu Fishing Opinion concerning the due diligence requirement of States to adopt and enforce appropriate rules and measures to prevent violations of their i­ nternational

73 74 75

Ibid para 197. iuu Fishing Opinion, para 1. Ibid para 116. For an examination of State measures required under unclos, Art 94, see Ch 4, s 4.2. 76 Ch 6, s 6.3.3.1. 77 iuu Fishing Opinion, para 128. 78 Ibid para 129. 79 Ibid. 80 Ibid. The Tribunal held that this requirement includes taking all necessary measures to ensure compliance and to prevent iuu fishing by fishing vessels flying its flag. 81 iuu Fishing Opinion, para 133. 82 Ibid para 134. 83 Ibid para 138.

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obligations were considered by the Permanent Court of Arbitration84 in The Republic of Philippines v People’s Republic of China Award,85 where it found that China had failed its due diligence obligations under unclos Articles 192 and 194(5), to protect and preserve the marine environment in areas of the South China Sea.86 It held that in cases where a State is aware that vessels flying its flag are engaged in the harvesting of internationally recognised species threatened with extinction or causing significant damage to rare or fragile ecosystems or the habitat of depleted, threatened, or endangered species, its obligations under the convention include ‘…a duty to adopt rules and measures to prevent such acts and to maintain a level of vigilance in enforcing those rules and measures’.87 The Tribunal noted that China, despite being a party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora,88 as well as enacting specific legislation on wildlife protection, took no action to enforce these rules and measures.89 In fact, on several occasions China not only acquiesced to such activities but also actively provided warships to protect the fishermen involved.90 6.3.3.3 Relativeness The standard of due diligence exercised by a State should be appropriate and proportional to the degree of risk of violation of an international obligation in a particular situation.91 In the field of human rights law, this has been recognised by the UN Human Rights Council’s Guiding Principles of Business and Human Rights,92 which provide internationally recognised standards and recommendations concerning corporate responsibility for human rights violations. Under the guidelines, States have a duty to carry out due diligence and protect against violations of human rights within their territory and/or jurisdiction by third parties, including business enterprises. Principle 17 defines the  parameters for the exercise of human rights due diligence by business 84 85

Hereafter referred to as the pca. The South China Sea Arbitration (The Republic of Philippines v The People’s Republic of China), pca Case No 2013-19, Award, 12th July 2016 (Philippines v China). 86 Ibid para 964. 87 Ibid para 961. 88 (adopted 3 March 1973, entered into force 1 July 1975) 993 unts 243. 89 Philippines v China, paras 963–964. 90 Ibid para 964. 91 Draft apthha with commentaries 154, para 11; see also Seabed Opinion, para 117. 92 Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy Framework” (2011) UN Doc HR/PUB/11/04.

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e­ nterprises and explicitly provides that this standard ‘…[w]ill vary in complexity with the size of the business enterprise, the risk of severe human rights impacts, and the nature and context of its operations…’.93 itlos has also affirmed that due diligence is considered to be a ‘variable concept’94 in the Seabed Opinion. Similar to the conclusions of the ilc on the exercise of due diligence in the prevention of transboundary harm, the Tribunal noted that the level of due diligence exercised has to be more severe for riskier activities.95 In particular, it compared the levels of due diligence exercised in cases of prospecting and in those of exploration activities in the area. Exploration activities were generally considered to be much riskier than prospecting activities; hence, this requires the State to ensure that contractors exercise a higher level of due diligence when conducting exploration activities.96 Furthermore, as observed by Fitzmaurice, ‘due diligence is a dynamic, evolving standard’,97 and therefore the level of due diligence that should be exercised by a State may change over time. That is, what may presently be considered a reasonable level of care may change in the future.98 It can be argued that this standard requires States to keep abreast of anthropological, technological, and scientific developments. 6.3.3.4

The Exercise of Due Diligence Obligation and Violations of International Obligations by Private Persons The exercise of the due diligence obligation is a key factor in determining the extent of a State’s responsibility for the conduct of private individuals under its jurisdiction.99 The general rule provides that the State cannot be held responsible for the conduct of private persons.100 However, as affirmed by the ilc, there may be exceptions to this general rule under certain circumstances: 93

Ibid, Principle 17(b); see also Principle 7 requiring States to assess the human rights– related risks associated with businesses operating in areas affected by conflict. The degree of risk element of the due diligence obligation is also reflected in the principles on the prevention of transboundary harm, where the ilc notes that some activities undertaken by States may be considered ultrahazardous and therefore require a higher level of due diligence in adopting and enforcing legislation and policies to prevent harm; see Draft apthha with commentaries 154, para 11. 94 Seabed Opinion, para 117. 95 Ibid. 96 Ibid. 97 Fitzmaurice (n 70) 120. 98 Draft apthha with commentaries 154, para 11; Seabed Opinion, para 117. 99 Koivurova (n 43) para 3; Kulesza (n 42) 268. 100 Ch 6, s 6.3.2.; see also De Frouville (n 29) 261–264.

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…the different rules of attribution stated in Chapter ii have a cumulative effect, such that a State may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects.101 In cases where a private person has violated an international obligation, that State may still be held responsible if it breaches its own obligations in relation to such act; that is, if it fails to exercise due diligence obligations in preventing and punishing of the unlawful acts committed by that person. As succinctly described by De Frouville, this relationship takes the form of ‘responsibility by catalysis’.102 For example, a State may be held responsible for failing to punish responsible individuals or preventing affected individuals the opportunity to obtain compensation. This may result in a denial of justice and a breach of that State’s due diligence obligation. This was confirmed in the Janes Claim,103 where the General Claims Commission found that Mexico ‘…did not take proper steps to apprehend and punish the slayer of Janes’,104 which equated to a denial of justice. Mexico was found responsible and the Commission awarded damages to the wife and children of the deceased Janes.105 In the Tehran Case,106 the icj provided guidance on the exercise of the due diligence obligation in the context of preventing acts or omissions of private persons. In this case, the Court had to assess the responsibility of Iran for armed attacks carried out by Iranian militants against the US embassy in Tehran. The first phase of attacks lasted for over three hours, during which no members of the Iranian police force or army intervened to stop the attack.107 The Court held that owing to the status of the militants, who were not officially recognised as agents of the State, their conduct could not be directly imputable to Iran.108 Nevertheless, the icj held that this did not exonerate Iran from any responsibility for the attacks:109 101 Draft arsiwa with commentaries 39, para 4. 102 De Frouville (n 29) 277. 103 Laura M B Janes v United Mexican States (1925) 4 riaa 82 (Janes Claim). 104 Ibid 86. 105 Janes Claim 88; see further Robert P Barnidge Jr, ‘The Due Diligence Principle under International Law’ (2006) 8 iclr 81, 92–94. 106 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgment [1980] icj 3 (Tehran Case). 107 Ibid para 57. 108 Ibid para 58. 109 Ibid para 63.

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…the Iranian Government failed altogether to take any “appropriate steps” to protect the premises, staff and archives of the United States’ mission against attack by the militants, and to take any steps either to prevent this attack or to stop it before it reached its completion…110 The Court affirmed that Iran’s failure to exercise due diligence and prevent or impede attacks committed by private persons against the US Embassy constituted a breach of its international obligations to protect the inviolability of persons and premises of another State’s diplomatic mission.111 Therefore, even in the absence of a link establishing the militants as State agents, Iran was still considered responsible for their conduct due to the absence of due diligence in the exercise of its obligations under diplomatic and consular law.112 6.4

State Responsibility and the Shipmaster in Rescue at Sea Operations

This section analyses flag, coastal or sar State responsibility for conduct of the shipmaster in rescue operations, particularly imros, which results in violations of law of the sea, human rights law, and refugee law obligations.113 This analysis is undertaken in light of relevant arsiwa principles and international jurisprudence discussed above.114 Reference is also made to case studies which attempt to illustrate potential exposure to State responsibility in imros via the shipmaster’s actions or omissions. Flag State Responsibility and the Shipmaster in Rescue at Sea Operations 6.4.1.1 Obligations under the Law of the Sea The primary obligation of the flag State in rescue operations is to enforce the duty to render assistance. The shipmaster of a commercial vessel is not considered a de jure organ of the flag State; his conduct cannot be automatically attributed to the flag State. However, as noted above, attribution may still arise if the shipmaster is empowered by the flag State to exercise ‘elements of governmental authority’.115 Much will depend on the status of the shipmaster and his 6.4.1

110 Ibid. 111 Ibid para 62. 112 Ibid para 67. 113 For a detailed examination of these obligations; see Chs 3, 4, and 5. 114 Ch 6, ss 6.2–6.3. 115 arsiwa, Art 5; see also Draft arsiwa with commentaries 43, para 5.

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powers, if any, to exercise governmental authority in rescue operations as determined by flag State law. Indeed, unless the flag State’s domestic legislation specifically grants the shipmaster elements of such ‘governmental authority’, then it may be difficult to attribute responsibility for violations of the duty to render assistance. Nevertheless, within the context of rescue operations, this author opines that this does not generally apply to the shipmaster of a commercial vessel. This view is shared by scholars such as Papastavridis and Trevisanut, both of whom view rescue at sea as being a strictly ‘humanitarian duty’,116 which cannot be characterised as a governmental activity. This argument is also supported by the review of domestic laws undertaken in Chapters 3 and 4 of this study, which demonstrates that the implementation of the shipmaster’s duty to render assistance does not empower him with any form of governmental authority.117 There may be an alternative basis for attribution of flag State responsibility under Article 8 of the arsiwa.118 Generally, the conduct of private person, such as the shipmaster, cannot be imputed to the flag State, unless he is (i) acting on the instructions of that State or (ii) under that State’s direction or control.119 In respect of the latter element, the conduct is attributable to the State only if the State directed or controlled the specific rescue operation and the conduct complained of was an integral part of that operation.120 As evidenced by the icj decisions in the Nicaragua Case and Genocide Case,121 it must be shown that the flag State had exercised ‘effective control’ over the specific act carried out by the shipmaster. This would be the case, for example, if the flag State instructs the shipmaster (either directly or indirectly) not to render assistance to persons in distress, and a wrongful act has been committed in violation of the duty to render assistance.

116 Efhymios Papastavridis, ‘Rescuing Migrants at Sea and the Law of International Responsibility’ in Thomas Gammeltoft-Hansen and Jen Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and Migration Control (Routledge 2017) 175; Seline Trevisanut, ‘Search and Rescue Operations at Sea’ in André Nollkaemper, Illias Plakokefalos, and Jessica Schechinger (eds), The Practice of Shared Responsibility in International Law (cup 2017) 440–441. 117 For a review of State practice concerning the implementation of the shipmaster’s duty to render assistance; see Ch 3, s 3.3.2. 118 Patricia Mallia and Jean-Pierre Gauci, ‘Irregular Migration and the International Obligation of Non-refoulement: The Case of the mv Salamis from a Maltese Perspective’ (2014) 20 jiml 50, 60; Papastavridis, ‘Rescuing Migrants’ (n 116) 173. 119 Ch 6, s 6.3.2. 120 Ibid. 121 Nicaragua Case, para 115; Genocide Case, paras 400 and 413.

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As was affirmed in the Tehran Case122 and Janes Claim,123 a State may also be held responsible for failing to exercise due diligence in preventing acts or omissions of private persons under its jurisdiction.124 Accordingly, the flag State may attract international responsibility for a breach of international obligations in rescue operations by a shipmaster if it fails to exercise due diligence. This would require the State to take reasonable steps to comply with its international obligation to provide assistance. The flag State obligation under unclos Article 98(1), may be described as one of conduct and not result;125 this would imply that the failure of a shipmaster to provide assistance would not necessarily automatically impute responsibility on the flag State. As confirmed by the icj and itlos in the Genocide Case and Seabed Opinion respectively,126 responsibility would arise if it can be proven that the flag State has failed its due diligence obligation to prevent such a failure.127 The due diligence obligation would require the flag State to take reasonable measures to prevent shipmasters of its registered vessels from failing to assist person in distress. Interestingly, under some conventions, such as the 1989 Salvage Convention, the requirement to adopt measures to enforce the duty is considered an additional obligation which complements the shipmaster’s duty to render assistance and promotes its enforcement.128 As confirmed in the Pulp Mills Case and the iuu Fishing Opinion,129 reasonable measures may include, for example, flag State legislation imposing effective sanctions and penalties to deter shipmasters from failing to assist.130 It is noteworthy, however, that this flag State responsibility is not always undertaken. For instance, one of the world’s largest registries, the Bahamas,131 does not impose a general duty on the shipmaster to render assistance at sea, while others, such as China, Liberia, the MI, and Panama, do require the shipmaster to render assistance at

122 123 124 125 126 127 128

Tehran Case, para 63; see Ch 6, s 6.3.3.4. Janes Claim 82; see Ch 6, s 6.3.3.4. Ch 6, s 6.3.3.4. Ibid, s 6.3.3.1. Genocide Case, para 430; Seabed Opinion, para 110. Ch 6, s 6.3.3.1. 1989 Salvage Convention, Art 10(2). For a detailed discussion on the duty to render assistance under the 1989 Salvage Convention; see Ch 3, s 3.2.3.4.a. 129 Pulp Mills Case, para 197; iuu Fishing Opinion, paras 134 and 138. See further Ch 6, s 6.4.1.3. 130 Maria Xernou, ‘When States Fail to Rescue Persons in Distress in the Mediterranean: International Judicial Remedies for Unassisted Migrants’, Athens pil Research Paper Series 2/2016, 51. See also Ch 3, s 3.3.2. 131 The bmsa provides a duty of the shipmaster to assist only in the case of a collision; see Ch 3, s 3.3.2.

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sea, but do not appear to criminalise his failure to do so.132 The shipmaster’s obligation to render assistance under unclos Article 98(1), and other relevant treaty rules does not necessarily require the imposition of criminal penalties. Nevertheless, failure to do so could be relevant in determining State responsibility. As affirmed by the pca in Philippines v China,133 even if the flag State has enacted the relevant laws but fails to enforce them, this may equate to a failure of due diligence and incur State responsibility. In light of the Pulp Mills Case,134 it can be argued that flag States have a duty not only to enforce measures regulating the duty to render assistance but also to continuously monitor the efficacy of these measures to ensure that shipmasters of vessels flying their flag effectively discharge their obligations under unclos Article 98(1), and other relevant treaties and customary international law.135 A flag State’s repeated failure to prevent shipmasters from failing to assist or, for example, a continuous lack of prosecution against the shipmaster for such acts may be considered a constant disregard of its obligation and a flagrant failure to exercise due diligence. Papastavridis contends that: …if there is a pattern of incidents of private vessels ignoring people in distress without registering ‘in the log-book the reason for failing to proceed to the assistance of the persons in distress’ or informing ‘the appropriate search and rescue service accordingly’ and the flag State remains idle, there are good reasons to assert that the flag State has breached its due diligence obligations under the losc and solas Conventions.136 The higher the risk of a violation of an international obligation, the greater the need to apply due diligence.137 This was confirmed in the Seabed Opinion, which considered the latter to be a ‘variable concept’.138 It can thus be argued that in cases where a vessel navigates regularly through high risk areas affected by irregular migration, such as the Mediterranean, the greater the burden on the State to ensure that the shipmaster discharges his obligations under unclos, the 1974 solas, the 1979 sar, the 1989 Salvage Convention, and customary international law.139 132 Ch 3, s 3.3.1. 133 Philippines v China, paras 963–964; see further Ch 6, s 6.3.3.2. 134 Pulp Mills Case, para 197; see further Ch 6, s 6.3.3.2. 135 See further Ch 3, ss 3.2–3.3. 136 Papastavridis, ‘Rescuing Migrants’ (n 116) 173. 137 Ch 6, s 6.3.3.3. 138 Ibid. 139 Ch 3, ss 3.2–3.3.

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However, determining the level of due diligence the flag State must exercise in rescue situations may be extremely challenging.140 Due diligence may require the flag State to order the shipmaster to render assistance to persons in distress, but this may depend on the circumstances of each case. If the rendering of assistance endangers the safety of the shipmaster’s vessel or crew, he should not be coerced into providing assistance for fear of criminal prosecution. It is possible to argue that the due diligence requirement on the part of the flag State in distress at sea situations may still be fulfilled if there is direct and effective communication with the shipmaster. Any decisions taken by the flag State in such cases should be pursued after considering the circumstances of each case and should also entail a reasonable level of respect on the part of the flag States for the shipmaster’s professional judgment. 6.4.1.2 Obligations under Human Rights Law and Refugee Law With respect to establishing flag State responsibility for a shipmaster who violates the human rights of rescuees, one may refer to the principles governing jurisdiction under human rights law.141 The flag State may be held responsible for such violations only if it can be proven that the State exercised either de jure or de facto jurisdiction or control.142 For example, if prior to the embarkation of distressed persons the shipmaster informs the flag State of the distress situation, and the State in turn orders him not to assist, responsibility may arise.143 In such cases, the shipmaster’s conduct would be a result of the exercise of flag State control over him and the vessel. Another possibility would be where the shipmaster has embarked distressed persons but is instructed by the flag State to act in a manner which would violate the human rights or refugee rights of rescuees, such as disembarkation in a place where their lives or freedoms may be threatened, as occurred in the mv Salamis144 and Adakent145 incidents. Furthermore, according to the mss decision,146 the flag State may also be responsible if the shipmaster disembarks persons in a State (i) where there are inadequate asylum processing systems or sdps,147 (ii) where they are likely  to be transferred to another State where they may suffer ill treatment or 140 As discussed above, even unclos, Article 98(1) does not impose an absolute duty to render assistance; see Ch 3, s 3.2.2.3.a. 141 Ch 5, s 5.2.2. 142 Ibid ss 5.2.2.1 and 5.2.2.2. 143 arsiwa, Art 8; see also Ch 5, s 5.2.3.1.a. 144 Ch 1, s 1.4. 145 Ch 5, s 5.3.2. 146 Ibid. 147 Ibid.

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persecution,148 or (iii) which does not have reception and detention conditions respecting human rights.149 The flag State may also be held responsible for any human right violations committed by the shipmaster if it fails to act with due diligence to prevent such abuses. As confirmed in the Velásquez-Rodríguez and Osman cases,150 it is not sufficient for the flag State to simply impose measures to safeguard applicable human rights of rescuees. The State must also take any necessary action to prevent the violation of these rights. Positive measures therefore also include prevention, investigation, and sanctioning of human rights abuses.151 6.4.1.3 Case Studies The problems associated with imros have placed increased burdens on shipmasters.152 One major concern relates to the uncertainty regarding where rescuees are disembarked, which often results in delays and commercial costs.153 Another serious issue relates to the safety and security of the vessel and crew, especially if the shipmaster embarks many rescuees which outnumber his crew.154 These problems are even more acute for shipmasters who are frequently navigating in regions which are active irregular migration routes, such as the central Mediterranean. Unfortunately, representatives from various organisations, including ics and ai, reported that these difficulties have led some shipmasters to attempt to circumvent their obligation to render assistance by turning off their location signals.155 Furthermore, a number of alarming cases have occurred relating to the alleged failure of shipmasters to render assistance, even when informed of a distress situation, such as in the Triades and Vos Triton incidents.

148 Ibid. 149 Ibid. 150 These cases are examined in Ch 5, s 5.2.3 and s 5.2.3.1 respectively. 151 Ch 5, s 5.2.3; see also Sarah Joseph and Adam Fletcher, ‘Scope of Application’ in Daniel Moeckli and others (eds), International Human Rights Law (2nd edn, oup 2014) 123–125. 152 Ch 1, ss 1.3–1.5. 153 Ibid s 1.4. 154 See eg the El Hiblu 1 incident discussed in Ch 4, s 4.2.1.3.a. 155 ai, ‘Between the Devil and the Deep Blue Sea: Europe Fails Refugees and Migrants in the Central Mediterranean’ eur 30/8906/2018 (ai 2018) (2018 ai Report) 5; Tom Kington, ‘Captains Hide Ship Locations in the Med to Avoid Migrant Rescues’ The Times (London, August 2018); Kimberly Curtis, ‘The Tangled Politics of Search and Rescue Operations in the Mediterranean’ (United Nations News and Commentary Global News Forum, 21 July 2017) accessed 1 June 2019.

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On 16 July 2019, crew members of the Astral, a rescue vessel owned by a Spanish ngo, Proactiva, overheard radio exchanges between the shipmaster of a Panamanian-registered bulk carrier, the Triades, and Libyan officials.156 It transpired that the Triades’s shipmaster had seen a dinghy in distress off Libya but was reluctant to provide assistance.157 The Libyan officials eventually allowed the Triades to proceed to its next port of call.158 The following day, members of the Astral and the Open Arms, another ngo rescue vessel, found that the dinghy had been abandoned near the coordinates the Triades had given.159 On the dingy they found a sole survivor. Close to the dinghy, they retrieved from the water the bodies of a woman and small child.160 Proactiva alleged that the Triades shipmaster’s failure to fulfil his duty to render assistance led to the death of these two individuals. The incident prompted the ngo to file a complaint against the shipmaster with the Spanish authorities.161 On 11 May 2019, the aircrew of Sea-Watch’s Moonbird plane reported an incident involving 100 migrants in distress on a dinghy.162 After the migrants were intercepted by the Libyan coastguard, several jumped into the sea to avoid being forcefully returned to Libya.163 Some of these individuals attempted to swim towards the Gibraltar-registered Vos Triton.164 It was reported that its shipmaster and crew observed the events but did not intervene or attempt assist.165 The vessel then tried to flee the scene but was persuaded to stop via radio by the Moonbird’s aircrew, who requested the shipmaster and crew to ‘take all necessary steps to rescue…’.166 One swimmer joined two other migrants who reportedly managed to board the vessel earlier.167 156 2018 ai Report (n 155) 19. 157 Ibid. 158 Ibid. 159 Ibid. 160 Ibid. 161 Ibid 18–19; Juan Medina, ‘Migrant Charity Files Manslaughter Complaint Against Cargo Ship’ Reuters (London, 21 July 2018). 162 Sea-Watch, ‘Up to 70 Dead in the Mediterranean’ (13 May 2019) accessed 3 June 2019. 163 Ibid. 164 Ibid. 165 Ibid. 166 ‘Migrant Filmed as He Swims for Freedom After Fleeing Libya’ Sky News (London, 13 May 2019) accessed 4 June 2019. 167 Infomigrants, ‘Vidéo: Un Migrant Nage jusqu’à un Navire Commercial pour Échapper aux Garde-côtes Libyens’ (14 May 2019) accessed 4 June 2019.

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It is interesting to consider potential flag State responsibility for the shipmaster’s failure to render assistance in the above-mentioned cases. It is not clear from the facts of both cases whether Panama and Gibraltar exercised ‘effective control’ over the shipmasters involved in the incidents and whether they requested the shipmasters either directly or indirectly not to render assistance. If so, responsibility may attach to the flag States in question in accordance with Article 8 of the arsiwa. Nevertheless, as was demonstrated in the iuu Fishing Opinion,168 responsibility may still be attributed to both flag States if it can be proven that they failed to exercise due diligence to prevent their shipmasters from failing to assist. It may be relevant to examine whether Panama and Gibraltar have in place reasonable measures to deter the shipmasters’ violations. For example, when assessing responsibility, a State’s failure to legislate or to provide adequate sanctions may be relevant. Panama does impose a general duty on the shipmaster to render assistance to persons in distress but does not appear to criminalise his failure to do so. This factor could therefore be relevant in determining due diligence. With respect to the Vos Triton case, it should be noted that as a result of its British dependent territory status, Gibraltar-flagged vessels are considered to be UK ships.169 Furthermore, the application of a number of international agreements regulating the duty to render assistance, including the 1974 solas and 1979 sar, have been ratified by the UK and extend to Gibraltar.170 It appears that the Gibraltar Merchant Shipping Safety Act does require the shipmaster to render assistance171 and also criminalises his failure to do so.172 In light of the findings in Philippines v China,173 the question then arises as to whether the Gibraltarian authorities have taken appropriate action to enforce these laws and whether they have continuously monitored the activities of the shipmasters of their flagged vessels to prevent failure to render assistance. Possible flag State responsibility for the shipmaster’s violations of human rights law and refugee law obligations in rescue operations has been discussed in detail in Chapter 5.174 These problems have intensified following the 168 iuu Fishing Opinion, para 133; see further Ch 6, s 6.3.3.2. 169 James Ramage, ‘Protection and Privilege: Registering Ships in Gibraltar’ (Mondaq, 9 June 2009) accessed 10 June 2019. 170 Gibraltar Merchant Shipping (Safety etc) Act (Act No 1995-13), pt ix, s 119. 171 Ibid, pt iv, ss 57–58. 172 Ibid, pt ix, s 120. 173 Ch 6, s 6.3.3.2. 174 Ch 5, ss 5.2.3.1.a, 5.2.3.2.b, 5.3.2, and 5.3.3.

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increased involvement of the Libyan coastguard in imros in recent years. International organisations have expressed concern that shipmasters are not rejecting instructions to disembark rescuees in Libya,175 in violation of rules of non-refoulement and the prohibition of torture and inhuman and degrading treatment or punishment.176 In July 2018, the Italian-registered Asso Ventotto rescued 100 people fifty-seven nm off Libya.177 It subsequently disembarked them in Tripoli on the instructions of the Libyan coastguard, whose representative boarded the Asso Ventotto.178 The Italian coastguard claimed that the operation was entirely coordinated by the Libyan coastguard and that the Rome rcc was only made aware of the situation once the vessel was returning to Libya.179 Italy made no attempt to instruct the shipmaster to refrain from disembarking the migrants in Libya.180 It is argued that Italy’s failure to prevent the shipmaster from stopping the ‘push back’ operation may have constituted a breach of Italy’s obligations of non-refoulement generally and echr, Article 3, which protects rescuees from being returned to a place where they may be subject to torture and inhuman or degrading treatment or punishment.181 This argument is strengthened by the fact that the vessel was registered in Italy and the rescue occurred on the high seas, which means that the Asso Ventotto was under the de jure exclusive jurisdiction of Italy. In order to establish Italy’s potential responsibility, one must examine the circumstances of the case. Did the embarkation of the Libyan officer mean that the shipmaster acted under duress? If Italy ordered the shipmaster to ­disembark persons elsewhere, could this have placed his vessel, crew, and 175 2018 ai Report (n 155) 5. 176 Eg the Lady Sham rescue on 20 January 2019. The vessel rescued 144 migrants off the coast of Libya. Under instructions from the Tripoli rcc, it disembarked rescuees in Libya. It was reported that rescuees were allegedly misled by the crew, who informed them that they were being taken to Europe; see AlarmPhone, ‘I don’t Need to Be on The News, I Need to Be Rescued’ (7 February 2019) accessed 17 June 2019; unhcr, ‘unhcr Appeals for Urgent Action as New Mediterranean Mid-winter Deaths Reported’ (22 January 2019) accessed 17 June 2019. 177 2018 ai Report (n 155) 20. 178 Ibid. 179 Angela Giuffrida, ‘Migrants’ Return to Libya by Italian Boat Could Breach International law – UN’ The Guardian (London, 31 July 2018); Hannah Roberts, ‘UN Investigates Migrants’ Return to Libya by Italian Boat’ The Financial Times (London, 1 August 2018). 180 2018 ai Report (n 155) 20. 181 Ibid.

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­ assengers at risk? In short, to attribute responsibility, one must assess the parp ticular circumstances of the case. However, it would be reasonable to hold that, generally, flag States have a responsibility not to allow shipmasters to transfer rescuees to the Libyan coastguard, which is likely to disembark them in Libya in violation of non-refoulement.182 Unfortunately, this is what occurred in the Vos Triton incident.183 After the migrants were embarked, the shipmaster allowed Libyan coastguard officials to forcefully return the rescuees to Libya.184 As seen above, Gibraltar-flagged vessels are considered to be UK ships,185 where obligations under the echr also apply to Gibraltar,186 and therefore responsibility for compliance with the convention rests with the UK.187 It may be possible to attribute the shipmaster’s failure to prevent the expulsion of migrants to Libya, that is, violation of the non-refoulement principle and echr, Article 3, to the UK. The migrants on board the Vos Triton were within the de jure control of the UK, which has a responsibility to ensure that measures are taken to avoid violations of human rights law and refugee law obligations. Once again, if one applies Article 8 of the arsiwa, it is not clear from the facts of the case whether the shipmaster was instructed by flag State authorities to allow Libyan authorities on board to remove the migrants. Nevertheless, it may be necessary to assess whether Gibraltar had implemented preventive measures to avoid the event taking place. In this respect, the fact that the same vessel was involved in a previous rescue on 8 March 2019, where the shipmaster returned fifty-four rescued migrants to Libya, is significant.188 The failure of the UK via the Gibraltarian authorities to take appropriate action to investigate and sanction human rights and refugee rights abuses by the shipmaster may have led to a failure of due diligence. 182 Ch 5, s 5.3.2. 183 See page 269. 184 Gordon Watson, ‘3 Migrants Detained from “EU flagged” Vessel by Libyan Coastguard’ Newsbook (Blata L-Bajda, 13 May 2019) accessed 18 June 2019. 185 See page 269. 186 On this issue, see Matthews v the United Kingdom App no 24833/94 (ECtHR, Judgment (gc) of 18 February 1999), para 30. 187 Her Majesty’s Government of Gibraltar, ‘A Command Paper for a Draft bill to amend the Crimes Act 2011 to permit abortion in certain limited cases as required by the jurisprudence of the Supreme Court of the United Kingdom’ (27 September 2018) 7. 188 Alarm Phone, ‘The European Refoulement Industry at Sea’ (20 March 2019) accessed 19 June 2019.

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Coastal or sar State Responsibility and the Shipmaster in Rescue at Sea Operations 6.4.2.1 Obligations under the Law of the Sea For a coastal or sar State to be held responsible for any violations of obligations arising from the law of the sea committed by the shipmaster in rescue operations, it is necessary to examine whether that violation is attributable to the State.189 A coastal or sar State may have obligations either on the basis of the jurisdiction and control it exercises in various maritime zones or on the basis of the obligation to coordinate sar operations.190 Under the law of the sea, a coastal or sar State has a duty to ensure that shipmasters render assistance to persons.191 Furthermore, under unclos Article 98(2), coastal States have a duty to promote the establishment and maintenance of adequate and effective sar service.192 This general requirement to maintain effective sar services is elaborated in Regulation 7(1) in the Annex to the 1974 solas, which requires coastal States to ensure that any necessary arrangements are made for distress communication and coordination in their area of responsibility and for the rescue of persons in distress at sea around its coasts.193 These arrangements should also include the establishment, operation, and maintenance of such maritime safety facilities deemed practicable and necessary considering the density of seagoing traffic and the navigational dangers present, and they should as far as possible afford adequate means of locating and rescuing such persons.194 Under the 1979 sar, States have more detailed obligations.195 They are obliged to develop sar services, either individually or in cooperation with other States and the imo.196 On receiving information that any person is or appears to be in distress, sar State authorities should take urgent steps to ensure that the necessary assistance is provided.197 When developing their national systems, States are required to establish rccs for sar services,198 which should ensure that whenever requested, such centres provide assistance to other rccs.199 Furthermore, sar States must use sar units and other available 6.4.2

189 Xernou (n 130) 48. 190 Ch 3, s 3.2.3.2.d. 191 Ibid, ss 3.2.2.3.b, 3.2.3.1.c, and 3.2.3.2.d. 192 Ibid, s 3.2.2.3.b. 193 Ibid, s 3.2.3.1.c. 194 Ibid. 195 Ch 3, s 3.2.3.2.d. 196 1979 sar, anx ch 2, para 2.1.1; see also Ch 3, s 3.2.3.2.d.i. 197 Ibid. 198 1979 sar, anx ch 2, para 2.2; see also Ch 3, s 3.2.3.2.d.ii. 199 1979 sar, anx ch 3, para 3.1.7; see also Ch 3, s 3.2.3.2.d.ii.

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facilities to provide assistance at sea,200 which if alerted of a distress incident and are in a position to assist, must take immediate action to assist.201 Coastal or sar States which have accepted the 2004 Amendments to the 1974 solas and 1979 sar Conventions are also required to ensure that shipmasters of ships providing assistance by embarking persons in distress are released from their obligations with minimum further deviation from the ship’s intended voyage.202 The State responsible for the srr in which assistance is rendered also has a primary responsibility for ensuring coordination and cooperation, so that rescuees are disembarked from the assisting ship and delivered to a place of safety as soon as practicable.203 It may be argued that under unclos, the 1974 solas, and the 1979 sar, all coastal States have, as a minimum, a duty to promote the establishment, maintenance, and operation of sar services. This duty exists also in customary international law.204 Papastavridis holds the opinion that this coastal State obligation is complemented by a due diligence obligation to ensure that adequate and effective sar services are provided in its srr.205 Generally, the attribution of coastal or sar State responsibility is far less challenging than that of flag State. This is because, in the case of the former, a failure of sar obligations can be attributed to the rcc, which is considered an organ of the coastal or sar State.206 The question arises as to whether action by the shipmaster that results in a failure to render assistance may be attributable to the coastal or sar State. In such cases, one would first need to assess whether a breach occurred of the above-mentioned obligations, or whether the event can be ascribed to a failure of due diligence where the State did not take the necessary measures to ensure implementation of adequate and effective sar services. This may occur in several scenarios. For example, the shipmaster discovers a group of persons in distress on the high seas, proceeds to provide assistance, but then finds himself unable to embark all the rescuees. He requests the assistance of a coastal or sar State, which (i) does not have the necessary sar infrastructure or facilities to respond to the distress call or (ii) ignores the shipmaster’s request for assistance. In such cases it may be reasonable to argue that the shipmaster’s inability to assist is a result of the inaction of the coastal or sar State which has failed to provide adequate and effective sar services required. However, as was 200 1979 sar, anx ch 2, para 2.1.9; see also Ch 3, s 3.2.3.2.d.ii. 201 1979 sar, anx ch 4, para 4.3; see also Ch 3, s 3.2.3.2.d.ii. 202 1979 sar, anx ch 3, para 3.1.9; 1974 solas, anx ch v, reg 33; see further Ch 3, s 3.2.3.3. 203 Ch 3, s 3.2.3.3.c. 204 Ch 3, s 3.3.1. 205 Papastavridis, ‘Rescuing Migrants’ (n 116) 166. 206 Ch 6, s 6.3.

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affirmed in the Genocide Case,207 to assess whether due diligence has been exercised in the implementation of the State’s obligations, it would be necessary to examine the circumstances of the case. For example, if the shipmaster requests assistance from the coastal or sar State, which then fails to send its vessels to the distress scene, one would have to consider factors such as its capabilities, available vessels, and distance from the distress scene.208 In such cases, this author argues that the State would have fulfilled its due diligence obligation if, for example, it sought the assistance of other States. Another important issue relates to the responsibility of the coastal or sar State that either (i) transfers responsibility for a rescue operation or (ii) instructs the shipmaster to abide by the instructions of another coastal or sar State which may have limited sar capabilities. ai and hrw are concerned over a trend where European governments rely on Libya to coordinate rescue operations by commercial vessels in its sar.209 It has been reported that Italy has increasingly transferred responsibility for distress incidents to Libya. Heller and Pezzani have documented several cases in which operational instructions were provided to the Libyan coastguard by the Italian navy to attend to distress situations, without either Italy or Libya ultimately providing assistance.210 This practice even appears to have been endorsed by the European Council in its 28 June 2018 conclusions on, inter alia, migration and security, wherein it advised that ‘…all vessels operating in the Mediterranean must respect the applicable laws and not obstruct operations of the Libyan coastguard’.211 This author argues that a coastal or sar State effectively transferring responsibility for providing assistance to a State which is unable to effectively implement its sar obligations may result in a failure of the transferring State’s due diligence obligation and may thereby attract international responsibility. Libya does not yet have a fully functioning rcc; thus, current operations do not guarantee a speedy response to distress situations.212 Significantly, the head of the Libyan coastguard sar service has made the following statement: 207 Genocide Case, para 430; see further Ch 6, s 6.3.3.1. 208 Such a scenario is considered within the context of the coastal or sar State measures to protect the right to life in imros; see Ch 5, s 5.2.3.1. 209 2018 ai Report (n 155) 19; hrw, ‘EU/Italy/Libya: Disputes Over Rescues Put Lives at Risk’ (25 July 2018) (2018 hrw Report) 3. 210 Charles Heller and Lorenzo Pezzani, ‘Forensic Oceanography – Mare Clausum Italy and the EU’s Undeclared Operation to Stem Migration Across the Mediterranean’ (May 2018) 59–61. 211 European Council, ‘European Council Conclusions, 28 June 2018’ (Press Release, 29 June 2018) accessed 19 June 2019. 212 2018 hrw Report (n 209) 3.

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…the boats that we currently have at our disposal are not suitable for sar operations … what we need are proper sar boats, these are bigger, have more capacity and provide protection in the “hot zone” [the area between Misrata and Zuwara].213 6.4.2.2 Obligations under Human Rights Law and Refugee Law With respect to attribution of responsibility to the coastal or sar State for any action of the shipmaster which results in a violation of the human rights or refugee rights of rescuees, much depends on whether such persons fall within the de facto or de jure jurisdiction or control of the coastal or sar State.214 If the distress incident happens within a coastal State’s zones of jurisdiction, it may be argued that the people involved in the incident fall under the de jure jurisdiction and control of that coastal State.215 Therefore, if the shipmaster requests assistance from a coastal State in a rescue operation, which the State then fails to provide, the coastal State may have failed its obligation to render assistance to safeguard the right to life, and responsibility may arise.216 The situation may be different if the distress situation happens on the high seas, but within a coastal State’s srr. It should be recalled that the srr is not a zone of jurisdiction: ‘[n]othing in the Convention shall prejudice … the nature and extent of coastal and flag State jurisdiction’.217 Nor can the 1979 sar be construed as prejudicing the obligations and rights of vessels provided for in Article ii (2) of the 1979 sar, particularly those governed by unclos relating to the extent of coastal and flag State jurisdiction in the various maritime zones.218 It is therefore difficult to argue that de jure jurisdiction would exist by the simple presence of the rescuing vessel or the persons in distress in a coastal State’s srr.219 The situation may change if sar services are provided by the sar State. In such cases, if the circumstances lead to the determination of the sar State’s factual control over the distress persons, then its human rights law 213 Ibid 4. 214 Ch 5, s 5.2.2. 215 Ibid s 5.2.2.1. 216 Ibid s 5.2.3.1. 217 1979 sar, Art ii (1). 218 Ch 3, s 3.2.3.2; see further Seline Trevisanut, ‘Is There a Right to be Rescued at Sea? A Constructive View’ (2014) QuestIntlL 3, 12; Efthymios Papastavridis, ‘Is There a Right to be Rescued? A Skeptical View’ (2014) QuestIntlL 17, 27–28. 219 Papastavridis, ‘Is There a Right to be Rescued?’ (n 116) 27. For an opposing view see; Enkelejda Koka and Denard Veshi, ‘Irregular Migration by Sea: Interception and Rescue Interventions in Light of International Law and the EU Sea Borders Regulation’ (2019) 21 ejml 26, 48.

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or refugee law obligations could apply. Nevertheless, for such a responsibility to apply, the State must at least be aware of the distress situation,220 as the sar State is not in de facto control before such awareness comes into effect. This claim may be rebutted once the shipmaster or rescuees establish contact with the sar State. In such cases, it would be reasonable to argue that the sar State is responsible for ensuring that assistance is provided, and the situation can be considered to have fallen under its de facto control.221 Hence, it is possible to suggest that once the sar State has de facto jurisdiction and control, it engages obligations under human rights law and refugee law. In the context of rescue operations, the coastal or sar State may also be held responsible if it has instructed the shipmaster to act in a manner which would violate human rights or refugee rights.222 If the coastal or sar State instructs the shipmaster to disembark persons in a place in violation of the nonrefoulement principle or contrary to their human rights, such a State may be held responsible if the shipmaster obeys. 6.4.2.3 Case Studies Since the escalation of the migration crisis, situations have occurred in which shipmasters have been instructed by the coastal or sar State coordinating the rescue operation to disembark in unsafe places, especially in Libya. In the mv Salamis223 incident, the shipmaster of the vessel had received instructions from Italy to disembark in Khoms.224 The shipmaster refused and proceeded to his next port of call, Malta, which denied permission to disembark.225 The migrants were allowed to disembark in Sicily.226 Similarly, in November 2018, the shipmaster of a Spanish fishing vessel, the Nuestra Madre de Loreta, rescued a group of twelve migrants off Libya. The shipmaster refused Spanish orders to disembark the migrants in Libya.227 Italy, Malta, and Spain refused to accept 220 Papastavridis, ‘Is There a Right to be Rescued?’ (n 116) 28. 221 Trevisanut, ‘Is There a Right to be Rescued?’ (n 218) 12–13; see also Koka and Denard Veshi (n 219) 48, who argue that: ‘[a] de facto control nexus exists when distress calls are made from the high seas, deriving from the argument that people in distress place their lives in the hands of the State receiving the call’. 222 See further Ch 5, ss 5.2–5.3. 223 Ibid. 224 Ibid. 225 Efthymios Papastavridis, ‘The EU and the Obligation of Non-refoulement at Sea’ in Francesca Ippolito and Seline Trevisanut (eds), Migration in the Mediterranean: Mechanisms of International Cooperation (cup 2015) 238. 226 Ch 1, s 1.4. 227 hrw, ‘No Escape from Hell – EU Policies Contribute to Abuse of Migrants in Libya’ (21 January 2019) (2019 hrw Report) pt ii.

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disembarkation.228 After ten days, Malta agreed to disembark the rescuees for onward transfer to Spain.229 In both cases, the migrants were ultimately not disembarked in Libya. This outcome contrasts with the 2013 Adakent230 and 2018 Asso Ventotto231 cases, where it was reported that the shipmasters had effectively disembarked migrants in Libya under the instructions of the coastal or sar State. Similarly, on 8 November 2018, the Italian rcc instructed the shipmaster of the Panama-flagged cargo ship, the Nivin, to assist ninety-five migrants in distress off Libya.232 According to the migrant rescuees, the shipmaster refused to disclose the vessel’s next destination.233 Many migrants were under the impression that they were going to be disembarked in Malta, and were alarmed when they realised that the shipmaster was proceeding towards Libya.234 Once the vessel docked in Misrata, the rescuees refused to disembark, as they feared they would be sent back to detention camps. After ten days on board the vessel in port, Libyan security officials forcefully removed most of migrants, including minors, using rubber bullets and tear gas.235 Several individuals were reportedly injured and taken to the public hospital.236 Determining a place of safety may not always be an easy task. Given its proximity to migration routes, Tunisia makes an interesting case study when examining possible problems related to disembarkation. In July 2018, the Tunisianregistered Sarost 5 was involved in a rescue in Malta’s srr.237 Forty migrants involved in the incident were initially rescued by the Caroline Tide iii and then 228 ‘Spanish Fishing Boat Carrying Rescued Migrants Heads to Malta’ Reuters (London, 2 December 2018). 229 2019 hrw Report (n 227) pt ii. 230 Ch 5, s 5.3.2. 231 Ch 6, s 6.4.1.3. 232 hrw, ‘Libya: Migrants Forced off Ship at Libya Port’ (21 November 2018). 233 Infomigrants, ‘When commercial Ships Tell Migrants Rescued at Sea that They Are Going to Bring Them to Europe’ (15 February 2019) accessed 20 June 2019. 234 Ibid. 235 ‘Libyan Coast Guards Force Stranded Migrants Off Rescue Ship’ Reuters (London, 20 November 2018). 236 Office of the UN Resident and Humanitarian Coordinator, ‘Statement by the Humanitarian Coordinator for Libya, Maria Ribeiro, on recent events in the Port of Misrata’ (20 November 2018) accessed 21 June 2019. 237 Simon Speakman Cordall, ‘Pregnant Women Among Migrants Stranded at Sea Off Tunisian Coast’ The Guardian (London, 25 July 2018). See also Kiri Santer, ‘The Case of the Sarost 5: Black Holes of Responsibility in the Central Mediterranean’ (Open Democracy, 15

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transferred to the Sarost 5.238 Subsequently, it was reported that the shipmaster of the vessel contacted Malta, Italy, and France requesting a place to disembark the migrants.239 Malta argued that the rescuees should be disembarked in Tunisia, which was considered to offer the closest port of safety.240 The shipmaster proceeded towards Sfax. After refusal to disembark in Sfax, he proceeded to Zarzis.241 The shipmaster was initially denied entry to the port, and he remained stranded for more than two weeks before Tunisia allowed disembarkation.242 The incident raised serious concerns among human rights organisations about Tunisia’s viability as a place of safety.243 This issue is problematic. On the one hand, one cannot out right dismiss these organisations’ claim that Tunisia is not a place of safety, particularly because the State lacks any national legal system or procedure to apply for international protection:244 Tunisia’s ongoing financial crisis and the fact that in the first quarter of 2018 the largest group of border crossers arriving in Italy were from Tunisia, raised questions as to the country’s capacities to receive people in a dignified way.245 Nevertheless, unhcr does provide potential asylum seekers in Tunisia with access to protection mechanisms,246 and the organisation does not appear to support the claim that Tunisia is not a place of safety.247

August 2018) accessed 21 June 2019. 238 Santer (n 237). 239 Ibid. 240 doim, ‘Statement by the Government of Malta’ (Press Release, 19 July 2018) accessed 30 June 2019. See also ‘Migrants Rescue: Government Rejects Claims Malta Broke International Rules’ The Times of Malta (Birkirkara, 19 July 2018). 241 Santer (n 237). 242 Ruth Castillo, ‘After 15 Days at Sea Immigrants Allowed to Land in Tunisia’ tvm News (Malta, 29 July 2018) accessed 30 June 2019. 243 AlarmPhone, ‘Press Release on the Sarost 5 Disembarkation Announcement’ (29 July 2018) accessed 7 October 2018. 244 unhcr, ‘Tunisia Fact Sheet’ (January 2018) accessed 9 October 2018 (unhcr Tunisia Fact Sheet). 245 Santer (n 237). 246 unhcr Tunisia Fact Sheet (n 244); Santer (n 237). 247 Santer (n 237).

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On 6 November 2017, a dinghy carrying between 130 and 150 migrants was in distress on the high seas off the coast of Libya,248 and the ngo vessel SeaWatch 3 and a Libyan coastguard patrol vessel headed towards the vessel.249 Rome rcc had informed the Libyan coastguard of the dinghy.250 It was reported that on arriving at the scene of distress, the Libyan coastguard attempted to interfere with the rescue operation being conducted by Sea-Watch 3, leading to the death of at least twenty people.251 The Libyan officials subsequently took the survivors to Libya, where they were subjected to detention in inhuman conditions and exposed to beatings and rape.252 It was reported that two of the survivors were later sold and tortured with electrocution.253 This event prompted a number of organisations to file an application to the ECtHR on behalf of survivors and parents of two children who had drowned in the incident.254 The applicants claimed that Italy’s cooperation with the Libyan coastguard resulted in several violations of the echr,255 including the right to life256 and the prohibition of torture and inhumane or degrading treatment.257 glan, the driving force behind the application, made the following argument: [t]he Italian authorities are outsourcing to Libya what they are prohibited from doing themselves, flouting their human rights obligations. They are putting lives at risk and exposing migrants to extreme forms of illtreatment by proxy, supporting and directing the action of the so-called Libyan Coast Guard.258

248 Heller, Pezzani, and Situ Studio, ‘Forensic Oceanography’ (n 210) 3. 249 Ibid. 250 Global Legal Action Network (glan), ‘Legal Action Against Italy Over Its Coordination of Libyan Coast Guard Pull-backs Resulting in Migrant Deaths and Abuses’ (8 May 2018)

accessed 30 June 2019 (glan Application). 251 Heller, Pezzani, and Situ Studio, ‘Forensic Oceanography’ (n 210) 4. 252 glan Application (n 250). 253 Ibid. 254 ecre, ‘Case Against Italy Before the European Court of Human Rights Will Raise Issue of Cooperation with Libyan Coast Guard’ (18 May 2018) accessed 30 June 2019. 255 Ibid. See also Stephanie Kirchgaessner and Lorenzo Tondo, ‘Italy’s Deal with Libya to “Pull Back” Migrants Faces Legal Challenge’ The Guardian (London, 8 May 2018). 256 echr, Art 2; see further Ch 5, s 5.2.3.1. 257 echr, Art 3; see further Ch 5, s 5.2.3.2. 258 glan Application (n 250).

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The ECtHR has yet to declare whether the application will be admissible. However, the application has been the subject of much legal debate,259 as the outcome may have potentially far-reaching implications for the attribution of responsibility of States collaborating with Libya in rescue operations. Could there be potential responsibility on the part of Italy? Much would depend on the latter’s level of control over the migrants. Could Italy’s actions amount to exercise of de facto control under the echr? This author is of the view that de facto jurisdiction was exercised considering the Italian authorities were fully aware of the distress situation and actively transferred responsibility to the Libyan coastguard in the full knowledge of the dangers the migrants faced in Libya. The Court may consider such action as effectively being a failure of Italy’s due diligence obligation to prevent the migrants from being subjected to possible refoulement and ill treatment by being returned to Libya. 6.5 Conclusion To establish international State responsibility for the shipmaster’s violations of international obligations in rescue operations, it is necessary that (i) the conduct in question must be attributable to the State under international law and, (ii) for responsibility to attach to the State, the conduct must constitute a breach of an international legal obligation. This chapter concluded that the mere violation of such international obligations does not generally entail responsibility. To attribute the international responsibility of the State when the shipmaster commits a violation of an international obligation in rescue operations, it is necessary to examine whether the shipmaster (i) is empowered with any governmental authority under domestic law of a State or (ii) acted on the instructions of, or under the direction or control of, a State in carrying out the conduct. Furthermore, acts of the shipmaster can engage State responsibility if the flag, coastal, or sar State fails to exercise due diligence to ensure that the shipmaster renders assistance to persons in distress. Due diligence is particularly important when the shipmaster is involved because it considers the circumstances 259 See eg Annick Pijnenburg, ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasburg?’ (2018) 20 ejml 396; Moritz Baumgärtel, ‘High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan “Pullback” Policies to the European Court of Human Rights’, ejil:Talk! (14 May 2018) accessed 30 June 2019; Giulia Ciliberto, ‘Libya’s PullBacks of Boat Migrants: Can Italy be held Accountable for Violations of International Law?’ (2018) 4 ItaLJ 489.

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of  his duties, which may render responsibility unattributable. Decisions by States in rescue operations generally depend on the shipmasters’ professional judgment. Therefore, the test of due diligence (i) allows the gauging of the extent, if any, to which acts of a shipmaster can impute State responsibility and (ii) requires that States not only take appropriate measures to ensure that shipmasters render assistance, but that they continuously monitor the efficacy of those measures to ensure the shipmaster’s rendering of assistance.

General Conclusions The shipmaster’s duty to render assistance at sea is a well-established rule of international law. The genesis of the duty lies in the moral and legal responsibility to protect life at sea, and the duty has had to adapt to the dramatic changes in ocean uses and astounding technological developments. More recently, it has had to respond to the challenges posed by increased irregular migration by sea. This study provides a comprehensive analysis of this duty under contemporary international law. In particular, it examines the shipmaster’s responsibilities in rescue operations, especially those involving irregular migration by sea, and his role in the fulfilment of States’ international obligations in the rendering of assistance. The intensification of shipping and maritime activities in the nineteenth century resulted in increased fatalities at sea. This stimulated international efforts in the early 1900s to develop safety at sea regimes,1 which culminated in the adoption of the 1910 Salvage Convention, the 1910 Collisions Convention, and the 1914 solas.2 The duty to render assistance at sea under these conventions considered important factors relevant at the time, such as the increase in accidents at sea, the advent of telecommunications, and the need for international cooperation to implement the duty more effectively.3 These early efforts should not be underestimated. They inspired the construction of the contemporary regime regulating the said duty, and they continue to contribute to its understanding and interpretation. This is evidenced by the fact that the latest conventions which address the duty to render assistance – such as unclos, the 1974 solas, the 1979 sar, and the 1989 Salvage Convention – incorporate, in whole or in part, the provisions of their early conventions.4 unclos i codified the rules regulating the duty to render assistance in ­Article 12 of the hsc.5 Although the text was based on the rules found in the 1900s conventions, it elaborated them further by including the obligation of coastal States to provide sar services.6 This elaboration marked an important development, as it imposed considerable responsibility on the coastal State to support the shipmaster in exercising his duty to render assistance. In fact, 1 Ch 2, s 2.3. 2 Ibid ss 2.3.1–2.3.3. 3 Ibid. 4 Ch 3, ss 3.2.2.3, 3.2.3.1–3.2.3.2, and 3.2.3.4. 5 Ibid s 3.2.1.3. 6 Ibid.

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t­ oday these services render vital support to the shipmaster, particularly in the face of rescue operations involving a large number of irregular migrants.7 Article 12 of the hsc, enjoyed widespread support at unclos iii, and its provisions were incorporated in the unclos regime, which provides the pivotal rules relating to the duty to render assistance. The main constitutive elements of the regime are (i) the duty of flag States to ensure that shipmasters provide assistance to persons found at sea in danger of being lost;8 (ii) the duty of shipmasters to proceed with all possible speed to the rescue of persons in distress;9 (iii) in the case of collisions, the duty of shipmasters of colliding vessels to render assistance to each other, and in so far as possible exchange particulars with one another;10 (iv) the duty of coastal States to promote the establishment, operation, and maintenance of adequate and effective sar services; and (v) the right of the shipmaster to stop and anchor in a foreign territorial sea for the purpose of rendering assistance to persons, ships, or aircraft in danger or distress.11 Whilst the rules found in unclos remain fundamental in the application of the duty, the shipmaster in rendering assistance must also comply with imo regimes, mainly those found in the 1974 solas,12 the 1979 sar,13 and the 1989 Salvage Convention.14 A review of State practice, particularly that of major maritime registries, demonstrated that the main rules on the duty to render assistance under the aforementioned conventions reflect customary international law.15 Furthermore, States have adopted measures under municipal law to ensure that the shipmaster exercises the duty to render assistance. Its implementation is generally enforced through criminal and administrative sanctions.16 The problems associated with irregular migration at sea, particularly largescale movements, challenge the stability of the established rules regulating the shipmaster’s duty to render assistance.17 At the time unclos was being negotiated, the problems of mass migration by sea had been largely overcome.18 7 Ibid ss 3.2.2.3.b, 3.2.3.1.c, and 3.2.3.2.d. 8 Ibid s 3.2.2.3.a. 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid s 3.2.3.1. 13 Ibid s 3.2.3.2. 14 Ibid s 3.2.3.4. 15 Ibid s 3.3.1. 16 Ibid s 3.3.2. 17 Ch 1, ss 1.3–1.5. 18 Ch 3, s 3.2.2.3.a.

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­Consequently, unclos iii retained the 1958 hsc rules, which were mainly designed to deal with seafarers in distress.19 The problems posed by migration by sea led to the development of new rules, mainly found in the 2004 Amendments to the 1974 solas and the 1979 sar. These represent an international response to minimise the burden on the shipmaster in rendering assistance by facilitating the disembarkation of rescuees.20 Accompanying these norms is a body of soft law, developed by the imo in collaboration with other organisations such as unhcr and ics,21 which the shipmaster is well-advised to consider when rendering assistance. These soft law instruments, although not legally binding, offer the shipmaster authoritative guidance concerning the implementation of rescue operations, such as, providing him with a definition of a place of safety for disembarkation.22 They further focus on practical aspects of rescue operations, especially those involving irregular migrants, such as the methods for embarkation and monitoring of rescuees.23 Indeed, this soft law is proving to be a fertile ground for further development of the law regulating the shipmaster’s duty to render assistance.24 The analysis of the current regime regulating the duty demonstrated that whilst an impressive body of rules have been developed, important unresolved issues remain regarding the shipmaster’s obligations in rescue operations. The main problem he faces relates to where rescuees can be disembarked, as this remains a major contentious issue amongst States.25 The application of the 2004 Amendments has encountered State objections. This is evidenced by ongoing disputes between States that demonstrate two main opposing schools of thought regarding the obligation to allow disembarkation.26 The first holds that the 2004 Amendments impose a residual obligation on the sar State to allow disembarkation when all efforts to find a place of safety have failed.27 The second finds this interpretation to be inconsistent with general international law28 and argues that it is the State with the closest safe port from the site of rescue that must accept disembarkation of rescuees.29 19 Ibid. 20 Ch 3, s 3.2.3.3. 21 Ibid s 3.4.1. 22 Ibid s 3.4.1.4. 23 Ibid s 3.4.1.3. 24 Ibid s 3.4.1. 25 Ibid s 3.2.3.3.c. 26 Ibid. 27 Ch 3, s 3.4.1.4. 28 Ibid. 29 Ibid.

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This lack of agreement places enormous burdens on the shipmaster, who after often encountering great dangers in a rescue operation, finds it difficult to disembark rescuees, with consequential risk to the safety of life and the vessel.30 This has rendered the shipmaster more dependent on the political goodwill of States to accept disembarkation of rescuees, as they generally either refuse or require sharing of rescuees between States before authorising disembarkation. Despite this dilemma, some progress has been registered through political agreements for the relocation of rescuees amongst States.31 Whilst the 2004 Amendments may be interpreted to impose a residual obligation of disembarkation on the sar State, the view that obliges the State with the closest safe port to allow disembarkation makes more humanitarian sense, as it grants relief to the rescuees and the shipmaster in the shortest time possible. Due to the nature of rescue operations, particularly those involving irregular migrants, the shipmaster needs to consider regimes beyond those strictly regulating the duty to render assistance and other rules found in unclos and conventions adopted by imo and ilo.32 In this respect, the implementation of flag State measures – especially those relating to the safety, seaworthiness, and security of the vessel and the management of the crew33 – required under unclos Article 94, greatly affect the responsibilities of the shipmaster in rescue operations.34 These measures are important, as they contribute to the preparedness of the shipmaster to effectively implement the duty to render assistance and protect life on board the vessel. For example, the mlc, 2006, allows the shipmaster to ‘suspend’ the statutory labour obligations for the crew to perform any hours of work necessary to assist other vessels or persons in distress.35 Similarly, the application of the 1988 sua provisions relating to ship security may provide the shipmaster with a legal basis to address security threats or violations caused by rescuees and to bring them to justice.36 Whilst the flag State obligation to ensure its shipmasters render assistance continues in the internal waters and territorial sea of a foreign State, this is complemented by the coastal State’s obligation to adopt measures to enforce the duty in these zones.37 Furthermore, the coastal State must provide the shipmaster with the necessary support to render assistance and complete the 30 Ch 1, s 1.3. 31 Ch 5, s 5.3.3. 32 Ch 4, s 4.2. 33 Ibid ss 4.2.1.1–4.2.1.3. 34 Ibid. 35 Ibid s 4.2.1.2.c. 36 Ibid s 4.2.1.3.a. 37 Ibid s 4.2.2.

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rescue operation.38 In this respect, the study advocates that coastal States should avoid exercising criminal jurisdiction against shipmasters who disembark rescuees for humanitarian reasons, as this may disincentivise shipmasters from rendering future assistance.39 Similarly, in the contiguous zone, although the coastal State may exercise the control necessary to punish a shipmaster who infringes immigration laws as a result of navigating into its territorial sea or internal waters to disembark rescuees, such an approach should be avoided if the shipmaster had justifiable humanitarian reasons for doing so.40 A review of State practice demonstrated that the above-mentioned rules relating to the shipmaster’s duty to render assistance, found in unclos, imo, and ilo conventions, form part of customary international law.41 Moreover, they have generally been incorporated into domestic law and enforced through penal or administrative sanctions.42 Certain rules in customary international law affect the shipmaster’s duty to render assistance, in particular, the right of the shipmaster whose vessel is in distress to enter internal waters without coastal State authorisation.43 This has significant ramifications for a shipmaster whose vessel is carrying rescuees. It was established that this rule should also allow for disembarkation if this is necessary to alleviate distress on board. For example, shipmasters should be permitted to disembark if rescuees require urgent medical assistance or pose a security threat.44 In exercising the duty to render assistance, the shipmaster and States have to take into account their obligations under human rights law. Much will depend on the applicable treaty rules. In respect of the echr, shipmasters of vessels registered in State parties – which include some of the world’s largest registries, such as Malta and Greece – would be subject to its human rights obligations.45 This is extremely positive, as it enhances respect for the human dignity of rescuees and increases the accountability of the shipmaster and flag State for human rights violations. On the other hand, this could also lead to negative ramifications; for example, the shipmaster may advise the shipowner to transfer their flags to non-State parties to escape echr obligations. The ECtHR has done much to enforce the application of human rights at  sea, particularly through the extension of its jurisdiction to all maritime 38 Ch 3, ss 3.2.3.3.c, 3.4.1.1, and 3.4.1.4. 39 Ch 4, s 4.2.2.2.b. 40 Ibid s 4.2.2.3. 41 Ibid s 4.3.1. 42 Ibid. 43 Ibid, s 4.3.2. 44 Ibid. 45 Ch 5, s 5.2.3.

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­areas.46 This extension is based on the exercise of de facto State control, which is relevant to rescue operations. A review of its jurisprudence has demonstrated that a State’s cognisance of a distress at sea situation, even if it does not occur within its waters or srr, is enough to engage its human rights obligations. Once rescuees fall within the de facto jurisdiction or control of a State, this ‘triggers’ echr obligations, irrespective of the characterisation of the operation or where it is undertaken.47 Similar developments were found in the position of other bodies such as the UN Committee against Torture.48 The shipmaster should act as the guardian of human rights throughout a rescue operation, especially when rescuees are boarded. In this respect, the shipmaster has the delicate task of balancing the human rights of rescuees with those of his crew and passengers. Consequently, flag, coastal, or sar States should take the necessary measures to support the shipmaster and prevent him from committing violations of human rights, in particular, in relation to the right to life and the prohibition of torture and inhuman and degrading treatment or punishment.49 Furthermore, the echr may provide a useful tool in the hands of the shipmaster who feels he is unable to protect the human rights of rescuees, especially if he is being instructed by a State party to violate the their human rights under the convention. Under the ECHR, he may seek interim measures of protection from the ECtHR, which would require defendant States to adopt the necessary measures to protect the rescuees’ human rights.50 Additionally, the shipmaster has refugee law obligations, specifically the duty of ensuring non-refoulement.51 This requires him to be fully briefed on refugee rights.52 It is generally accepted that the non-refoulement duty applies extraterritorially to rescue operations at sea.53 This implies that the shipmaster has a duty not only to disembark rescuees in a place of safety but also to avoid a place where there is a risk that rescuees will be transferred to a place where their lives may be in danger.54 Thus, flag, coastal, or sar States should take measures to prevent the shipmaster from causing refoulement.55 Moreover,

46 Ibid s 5.2.2. 47 Ibid s 5.2.2.3. 48 Ibid. 49 Ibid ss 5.2.3.1–5.2.3.2. 50 Ibid s 5.2.3.2.c. 51 Ibid s 5.3.1. 52 Ch 3, s 3.4.1.5. 53 Ch 5, s 5.3.1. 54 Ibid s 5.3.2. 55 Ibid ss 5.3.2 and 5.3.3.

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General Conclusions

even in cases of State inaction, the shipmaster still has a responsibility to protect the refugee rights of his rescuees. An essential component of the non-refoulement principle is access to adequate asylum processing.56 The study has established that the shipmaster has no responsibility to assess the asylum claims of his rescuees.57 Furthermore, although not prohibited, asylum processing at sea is not desirable, as it is not possible to satisfy the necessary procedural elements.58 In this respect, States and the shipmaster must ensure disembarkation of rescuees not only to a place of safety but to one which gives them access to fair and efficient asylum processing.59 Regarding the duty of the shipmaster to render assistance at sea in light of State responsibility,60 the shipmaster of a commercial vessel may attract State responsibility for his violation of international legal obligations.61 This may be the case either if his conduct is controlled or directed by the State,62 or if the State fails to exercise due diligence in ensuring that necessary measures to prevent the shipmaster’s violation of international obligations are implemented and enforced.63 State responsibility for acts of the shipmaster in imros may be attributed to a number of States, including flag, coastal, and sar States.64 The duty to render assistance has developed extensively over the last century. This development has consequently striven to make the duty more responsive to the need to protect life at sea. Whilst much has been achieved in regulating the shipmaster’s duty to render assistance, failure to agree on the obligation to allow disembarkation of rescuees causes considerable challenges to the shipmaster, of both a humanitarian and commercial nature. The shipmaster is therefore required to fulfil the duty to save life at sea, but not all States are prepared to shoulder the responsibility to ensure that he is released from his obligations with ‘minimum further deviation to his voyage’.65 Ultimately much will depend on his professional judgment.66 In the exercise of this judgment, the shipmaster is expected to act in good faith and to exercise due diligence 56 Ibid s 5.3.3. 57 Ibid. 58 Ibid. 59 Ibid ss 5.3.2–5.3.3. 60 Ch 6, s 6.4. 61 Ibid ss 6.4.1–6.4.2. 62 Ibid s 6.3.2. 63 Ibid s 6.3.3. 64 Ibid ss 6.4.1–6.4.2. 65 Ch 3, s 3.2.3.3.a. 66 Ibid.

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while offering his utmost assistance to persons in distress.67 In the implementation of his duty he would have to consider all the relevant circumstances of the case but give priority to the quest for safety of life at sea.68 Throughout the development of the duty to render assistance at sea regime there appears to be a golden thread: the considerable discretion accorded to the shipmaster in undertaking his duty, which enables him, in protecting the lives of all concerned, to take into account the particular relevant circumstances of each rescue operation. 67 Ibid. 68 Ibid.

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Index Africa 8, 83 Horn of 8 Gulf of Aden 143 Alexander Maersk 11, 225 Amendments, 2004, to the 1974 solas and the 1979 sar 72–84, 284–285 Italy’s position 82–84 Malta’s position 82–84 primary responsibility 79, 81–82, 112, 273 residual obligation 81–82, 285 Articles concerning the Law of the Sea with commentaries 32 Asso Ventotto 270, 277 asylum claims processing 239–246, 266, 288 requests for 235 right to seek 229, 239 seekers 43, 54, 111, 125, 221, 226–227 status determination procedure or sdp 229, 236–237, 241, 244–245, 266 Brussels Conference on Maritime Law or 1910 Brussels Conference 19–23 Cap Anamur 177–178, 180–181 charts 138, 143–145 electronic chart display and information systems or ecdis 144 coastguard Greek Hellenic 65 Italian 141, 158, 179, 270, 274 Libyan 10, 158, 179, 180, 268, 270–271, 274, 279–280 Spanish 201 us 232–233, 242 collective expulsion 200 collisions duty of shipmaster to render assistance in 19, 23–24, 31–32, 47, 97–99, 102–103, 105–109 exchange of particulars in 23, 31–32, 99 King Jacob 12, 142, 149 Comité Maritime International 19 commercial challenges or considerations 14–16, 288

costs 267 losses 221 communications 25, 69, 118 Global Maritime Distress and Safety System or gmdss 139–140 maintenance of 138–142 radio 139 company 78, 137 security officer or cso 163 see also shipowner crew 11–13, 27, 45–49, 95, 102, 108, 124–125 proper management of 133, 145–154 cs Caprice 16, 48 Cyprus 108, 186, 203 declaration of security or dos 164–165 de facto control 199–200, 202–203, 211, 225, 231, 234, 266, 275–276, 280, 287 delay 7, 15–16, 152, 216, 219, 267 deviation 15, 78, 80, 124, 273, 288 disembarkation 6, 10, 15, 47–48, 65–66, 72–80, 81–84, 122–126, 139, 157, 159, 182–183, 189–190, 224–246, 284–286, 288 duty to disembark 48 post-disembarkation 118, 120, 126 distress alert 52–55, 69, 115, 139 meaning of 62–66 phase 70 situation 5, 43, 54–55, 65, 70, 80, 111–112, 122, 139, 143, 148–149, 151, 169, 173, 187, 189, 221, 266–267, 274–276, 280 drug trafficking 198–199 due diligence 248, 253–262, 264–267, 269, 271, 273–274, 280–281 obligation of conduct 254–256 reasonable measures 256–259 relativeness 259–260 test 253–254 duty to render assistance at sea origins 1, 18–19 customary international law 92–109 1974 solas 52–57

326 duty to render assistance at sea (Cont.) 1979 sar 60–62, 78–79 1989 Salvage Convention 84–88 soft law 110–125 unclos 43–50 see also shipmaster effective remedy 200, 230 emergency phase 69–71 procedures 142, 149 situations 69, 135, 148 embarkation 46, 48, 120–122, 153, 212, 266, 270, 284 English Channel 8, 47, 143 erga omnes 212–213 European Border and Coast Guard Agency or Frontex 63, 236n368 European Community of Shipowners’ Association or ecsa 9, 11n52, 113n674 European Court of Human Rights or ecthr 197–201, 204, 206–210, 211–215, 217–220, 223–228, 230–231, 234–236, 238–239, 247, 279–280, 286–287 extradition 157, 159, 161, 228 flag State duties 129–133, 134–166, 183, 190, 195, 210, 258, 285 exclusive jurisdiction of the 129–130 France 85, 198–199, 226, 278 French proposals to the msc 74, 77, 79 force majeure 40–41, 167, 186, 239 First United Nations Conference on the Law of the Sea or unclos I 29–30 Special rapporteur Jean Pierre Adrien François 30–31 Gibraltar 243, 269, 271 Gibraltar-registered 243, 268–269, 271 generally accepted international regulations, procedures and practices 127, 132–133, 190 genuine link 130–131 M/V “Saiga” (No. 2) 131, 194 M/V “Virginia G” 132 open-registry 131 glan Application 279–280 Greece 33, 96–97, 141, 203, 230, 286

Index guidelines 2015 ics Guidance 113–114, 115–125 2004 imo Guidelines on the Treatment of Persons Rescued at Sea 77, 78n363, 81–82, 110, 115–125 2015 Rescue at Sea Guide 110–111, 115–125, 206ns122–123 governmental authority 262–263, 280 Haiti 8n33 interdiction of Haitian migrants 232–233, 242 high seas 6, 30, 129, 167, 174, 199, 203, 231–236, 241, 247–275 ilc Provisional Articles on the High Seas 29–31 regime 33, 37–39 relationship with the contiguous zone 181 relationship with the eez 43, 129n13, 181–182 Hirsi 199–201, 234–236, 240 human rights application of human rights at sea 192–196 law 196–204 obligations 206–226 ramifications of the shipmaster’s duty to render assistance for 16–17, 125, 206–226 positive obligations 204 specially affected 206–226 Indochinese crisis 6, 49, 58, 245–246 inhuman and degrading treatment or punishment 213–226 prohibition of 212–226 International Chamber of Shipping or ics 9–12, 59, 113–125 International Court of Justice or icj 93–95, 185–186, 194, 252, 255–259, 261–264 international law treaty law 19–28, 37–50, 52–57, 59–60, 61–85, 88–92, 129–183, 206–207, 212–213, 227, 266–280 customary or general 1, 48, 75, 92–96, 110–113, 183–191, 197, 203–204, 212, 227, 248–249, 265, 283, 286

327

Index International Law Commission or ilc 29–37, 49, 62, 95–96, 113, 248, 253, 255, 260 International Ship and Port Facility Security Code or isps Code 128, 162–166 International Tribunal for the Law of the Sea or itlos 131–132, 194–195, 255–256, 258, 260, 264 insurance 14–15 Inter-American Court of Human Rights or iacthr 204–206, 215, 207n134, 213n168, 214n173 interception 199–200, 234–235 see also interdiction of Haitian migrants International Labour Organization or ilo 3, 127–128, 133, 184n475 International Maritime Organization or imo 1–3, 10, 43, 49–50, 127–128, 133 Facilitation Committee or falcom 73–74, 82 Legal Committee 73 Maritime Safety Committee or msc 58–59, 73–76, 78, 110 irregular migrant rescue operations or imros 1, 7–14, 17, 128, 131, 126, 128 1974 solas 52–57 1979 sar 61–62, 70 1989 Salvage Convention 91–92 2004 Amendments to 1974 solas and 1979 sar 72–78 crew 145–154 customary international law 186–190 human rights 211–226 rescue coordination centres or rccs 68–69 unclos 43–50, 131–132, 170 safety 134–138 security 154–155, 157–164 soft law 110–125 State responsibility 262, 267–281, 288 Italy 10–11, 82–84, 97, 157–159, 170–171, 175–180, 224–226, 238, 241, 243, 245–246, 270, 274, 277–280 interpretation of the meaning of distress 65 iuu Fishing Opinion 258, 264, 269 jurisdiction coastal State 166–172, 172–181 extraterritorial 198

de facto 198–203 de jure 197–198, 202–203 in human rights law 196–197 see also flag State see also maritime zones law of the sea human rights law and 192–196 see also duty to render assistance see also maritime zones Libya 158–159, 178–180, 199, 216–217, 224 274–277 Libyan crisis 8 port of Khoms 15 push back to 199–200, 234–235, 238–242, 268, 270–271, 277–280 life life-saving appliances 119, 121, 142 right to 193n5, 195, 204n102, 205–212 safety of life at sea 46, 50, 79, 123, 130, 132–138 log-book 27, 54–55, 100–101, 105, 116 Malta 13, 15–16, 71–72, 82–83, 99–100, 159–160, 168, 175, 185, 189, 203, 216, 220, 224, 226, 245–246, 277–278, 286 Armed Forces of Malta or afm 65, 71n315, 160, 238 interpretation of the meaning of distress 65 manning 138, 145–147 principles of minimum safe manning 146 safe manning document 146–147 maritime accidents 28 casualties 53, 84, 99 disasters 18, 128 perils 208n136, 236 maritime zones 3, 59, 167, 272, 275 contiguous zone 3, 181–182, 184 exclusive economic zone or eez 43, 129n13, 132, 181–182, 196, 199, 231 internal waters 166–168, 174, 181, 186–187, 189–191 territorial sea 38–42, 72, 157, 168–181 see also high seas

328 measures coastal State 211–212, 223–226 flag State 208–213, 223–226, 241–242, 244–245 interim 223–226, 238–239, 287 precautionary 222 preventive 171, 204–205, 210, 212–222, 258, 271 procedural 209, 211 sar State 211–212, 223–226 Mediterranean 5n4, 7–11, 47, 50, 143, 168, 188, 219, 244–245, 267, 274 central 8–10, 83 eastern 9 western 9 migration crisis 9, 276 mass 283 mixed 5, 8 irregular migration by sea 1, 5–6, 8, 43, 54, 113, 150, 245 irregular migration routes 143, 267 moral resistance 214, 220 obligation 1, 18, 22, 204n102 mv Aquarius 188–189, 210, 243 mv Salamis 15–16, 182, 225, 266, 276 mv Tampa 7, 13, 15, 48, 72–73, 123, 157, 175, 188–189, 210, 221 mv Pinar E 83–84 mv Western Copenhagen 13 nautical publications 138, 143–145 navigation danger to 57, 141–142, 272 navigational equipment 64 right of 129n13 non-governmental organisation or ngo 9–11, 112–114, 168–171, 177–181, 188, 224, 230, 239, 243, 268, 279 non-refoulement 16, 125, 227–231 extraterritorial application of  231–236 place of safety 236–239 Norway 31, 188

Index Norwegian proposals submitted to the msc 75–77, 79 occupational health and safety 153 Permanent Court of Arbitration or pca 259, 265 preparedness 69, 116, 150, 285 level of 69, 117–120, 132, 154 medical 152–153 port facilities 161–163 facility security officer or pfso 163–165 facility security plan or pfsp 164 of safety 15, 66, 83, 122, 124, 179, 278 to seek sanctuary 167 next port of call 15, 43, 48n147, 73, 76, 117, 159, 268, 276 see also isps Code private actors 204n106 persons 113, 251–254, 260–264 Protection and Indemnity Clubs or P&I Clubs 15, 150 push back 199–200, 234, 270 see also refugee refugee 6, 8n29, 16–17, 60, 125 law 2, 112, 125, 194, 226–231 indirect refoulement 231, 236–239 refoulment 200–201, 235, 227, 230–231, 237–239, 241, 243–244, 280, 287 United Nations High Commissioner for Refugees or unhcr 5n4, 8n29, 16–17, 59–60, 77, 110, 125, 230, 234–235, 239, 241–242, 278, 284 see also push back Relocation agreements 226, 246 of migrants or rescuees 77, 245, 285 requisition 26, 55–56, 100–101, 104 right to 26, 55 rescue at sea co-ordination centres or rccs 68–71 duty to 46, 48, 53, 66, 178 mass rescue operation or mro 117–118 meaning of 65–66

Index post-rescue 124 see also search and rescue or sar rms Titanic 24, 26, 28 safety challenges 11–14 equipment 188–189 international safety management code or ism Code 128, 135–138, 165 management system or sms 135–138 place of 65–66, 75–77, 79–82, 122–125, 171, 222, 231, 236–239, 273, 277–278, 284, 288 of life at sea 36, 46, 50–51, 79, 126, 130, 132–135, 137, 146, 289 of navigation 5, 25, 52, 116, 141–142, 155–156, 169 shipboard procedures 135 see also health and safety 12, 152–154, 226 see also maritime safety facilities 35, 39, 57, 272 Sale case 232–234 salvage fund 90–92 life 21–22, 90–91, 100–104, 109 of persons at sea 88–92 of property or cargo 22 operation 86, 89–90 reward 21, 84, 88–92, 98, 103, 105 salvor 22, 84–85, 88–92 special compensation 88–90 sanctions administrative 171, 283 civil 209, 211 criminal 44, 134, 177, 209, 211, 283 sanctuary port to seek 167 in the internal waters 186–187 Sarost 5 277–278 ship nationality 129–131 registration 129–131 reporting systems 118n722, 140 security 122, 161–166, 285 security officer or sso 163–165 security plan or ssp 164–165

329 shipmaster determination of a place of safety 237 discretion 34, 44–45, 49, 62, 74, 76, 78, 289 duty to render assistance under unclos Article 98 41–50 guardian of human rights 287 legal status 1, 110, 126, 128 obligation to report 141–142 professional judgment 78, 138, 266, 281 treatment of rescuees 213–223 violation of human rights obligations 213–221 violation of refugee law obligations 237–239, 241–244, 247 see also duty to render assistance shipowner 7, 14–15, 21–25, 74, 78, 80, 85, 89, 102, 106–107, 110, 114, 117, 119, 131, 134, 136, 137, 142–143, 145–149, 158, 163–165, 286 see also company seafarers 1, 13, 17–19, 43, 49, 145–154 hours of work or rest 150–152 labour conditions 145, 150–154 living conditions 150–154 see also crew search and rescue or sar activities 35, 39, 50, 52, 56–59, 67 areas 59 global search and rescue plan 59 International Aeronautical and Maritime Search and Rescue Manual or iamsar 111–112, 115–125 mission coordinator or smc 111 on-scene coordinator or osc 111–112 operation 9, 57, 59–60, 68–69, 71–72 region or srr 59–60, 69, 72, 79–80, 81–83, 112, 117, 122–123, 273, 275, 287 services 9, 36, 49–50, 54, 57–59, 62, 67–69, 111, 167, 208, 211–212, 272–273, 275, 282–283 sub-committee on radiocommunications and search and rescue or comsar 74 systems 68, 111 units 64n266, 68–72, 272

330 Sea-Watch 3 168, 180–181, 188, 224–226, 238, 279 Seaworthiness 46, 64, 134–138 challenges 11–14 unseaworthy 5, 19, 54, 56, 65, 81, 118, 134, 140–141, 169, 173, 188 Spain 201–202, 245, 276–277 State responsibility 248–249, 288 attribution 249–260 coastal or sar 272–280 flag 262–271 see also due diligence soft law 3n17, 109–125, 126, 284 see also duty to render assistance see also guidelines Southeast Asia 6–8, 47, 50, 143 tacit amendment procedure 51 Third United Nations Conference on the Law of the Sea or unclos iii 29, 37–41 Informal Single Negotiating Text or isnt 39–40 Revised Single Negotiating Text or rsnt 40 Second Committee of unclos iii 38–40 telecommunications 27–28, 282 telegraphy wireless 24n50, 24 radiotelegraph 25 terrorism Achille Lauro 155, 157 terror attacks 155, 161 terrorists 13, 13n71, 157, 160

Index tonnage world’s 3, 22, 92, 96, 114 torture prohibition of 212–217, 221 threshold of intensity 214–215 un Committee against Torture 201–202, 229 training 120, 223 of crew 145, 147–150 Triades 267–268 Tunisia 277–278 United States or us 96–97, 185, 228, 251 practice of interdiction of Haitian migrants 232 prescreening procedures 242 Supreme Court 232–233 see also Sale case unlawful acts against the safety of navigation 155–161 El Hilbu 1 159–160, 171, 175, 180, 189, 210 Vos Thalassa 157–158, 189, 210, 219 vessel commercial or merchant 1, 1n7, 6, 9, 11–13, 69, 112, 123, 131, 157, 171, 180, 217, 251, 274, 288 fishing 12, 131–132, 176, 258, 276 ngo 10, 176–180, 188, 279 Vos Triton 267–269, 271 Warship 176, 178, 199–200, 209, 250–251 Watchkeeping 138, 142–143 arrangements 142 watches 143, 146, 148, 164