In the absence of safe and legal routes to sanctuary countries in which they can rebuild their lives, refugees often resort to travel by unsafe means. The issue of rescuing refugees at sea has risen in global prominence, with an estimated 40,000 refugees and other migrants dying between 2014 and 2020 in the process of moving between countries. Over half of those deaths occurring by drowning in the Mediterranean. The issue has also risen in domestic prominence here in the United Kingdom, with the government recently announcing a new policy of conducting “push-back” operations in the English Channel.
The United Nations Refugee Convention does not impose any duty on state parties to rescue refugees at sea and it is a long-standing feature of international law that nation states can control access to their territory. However, there is also a very long-standing custom of rendering assistance at sea. The duty to do so has attained the status of customary international law and is enshrined in four binding international conventions which address the issue. The four conventions perform different functions but all impose a general duty to rescue those in distress at sea, and three of the four require state parties to establish search and rescue operations.
International human rights law is also highly relevant to issues around rescue at sea. Human rights law does not stand separately to the law of the sea: the two bodies of law influence one another.
I am also putting together a separate but related briefing looking at United Kingdom domestic law in this area, both as it stands now and as it will stand if amended by the Nationality and Borders Bill currently before Parliament. This second briefing will be published shortly.
UN Convention on the Law of the Sea (UNCLOS)
The United Nations Convention of the Law of the Sea (UNCLOS) purports, in the words of the preamble, to settle “all issues relating to the law of the sea” and establish a “legal order for the seas and oceans”. It is a huge document and does indeed touch on all aspects of the law of the sea, from navigation and rights of access to continental shelves and exploitation of resources. Originally agreed in 1982 and coming into force in 1994, it is now very widely ratified in its modern, amended form. Notable non-parties include Iran, Israel, Libya, North Korea, Turkey, the United States and Venezuela.
While state parties must agree to allow “innocent passage” by ships through their territorial waters and contiguous zone, there are exceptions for “the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State”: see Articles 19, 21 and 33. So interception, within a state’s territorial waters or contiguous zone, of a vessel containing refugees would seem at a glance to be permissible, given that refugees in that situation are likely to be intending to infringe immigration laws.
The recent Kakaei case throws some doubt on that latter assumption here in the United Kingdom, though. It could not be established that Mr Kakaei intended to breach immigration laws because UK law as it stands permits a refugee to sail to a recognised port of entry to claim asylum.
Even assuming interception is permitted, it does not follow that a vessel can simply be pushed back by being somehow blocked from entering or towed away to international or foreign waters. And if interception was not permitted on these grounds, ignoring a small boat of refugees is not necessarily permitted either.
UNCLOS goes on at Article 98(1) to impose a general duty on state parties to require their vessels “to render assistance to any person found at sea in danger of being lost” and “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”. Where ships collide, each ship’s master is to be obliged “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”. No immigration or other exceptions apply.
UNCLOS also at Article 98(2) imposes a duty on state parties to “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”.
On the face of it, UNCLOS Article 98 obliges state parties, including the United Kingdom, to rescue refugees in distress at sea and also to operate a search and rescue system. There is an argument that Article 98 falls within the part of UNCLOS addressed only to the high seas and therefore the obligation does not apply within territorial waters or the contiguous zone (see Article 86). The words of Article 98 itself do not support this approach; Article 18 seems to imply a duty of rescue in territorial waters and the contiguous zone; and, in any event, other conventions apply similar obligations without any similar restriction.
UNCLOS has been described as a “quasi-constitution for the oceans”. Three (or maybe four) further conventions set out the details of search and rescue obligations.
International Convention on Maritime Search and Rescue (SAR)
The first of these is the International Convention on Maritime Search and Rescue (SAR), which was agreed in 1979 and came into force in 1985 (link is to an unofficial but seemingly up-to-date amended version). It is widely agreed, including by the United Kingdom, although not as widely as UNCLOS. Its structure is unorthodox, in that the main body of the convention is administrative and short and the actual obligations are set out in various chapters to an annex.
Chapter 2 of the annex requires state parties to establish the basic elements of search and rescue operations and “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” (paragraph 2.1.1). Chapter 3 requires states to co-ordinate and co-operate with neighbouring states regarding search and rescue.
Following an amendment taking effect in 2006 for all parties except Malta, which formally objected, the obligation to provide assistance to a person at distress at sea expressly applies “regardless of the nationality or status of such a person or the circumstances in which that person is found” (para 2.1.10). Once a person has been rescued, they must be delivered to a “place of safety” (para 1.3.2 and 3.1.9).
International Convention for the Safety of Life at Sea (SOLAS)
Next is the International Convention for the Safety of Life at Sea of 1974 (SOLAS), which is primarily concerned with the seaworthiness of ships. This convention is also widely ratified, including by the United Kingdom. It is a very substantial and detailed document, the first version of which was adopted in 1914 in response to the sinking of the Titanic.
So far I have not been able to find an up-to-date, consolidated version of SOLAS, so it difficult to provide a useful link. The relevant part is Chapter V, but this was entirely rewritten with effect from 2002 by the International Maritime Organisation’s resolution MSC.99(73). The relevant parts have also been amended since then by MSC.153(78) with effect from 2004 (but not for Malta).
SOLAS imposes a duty on the master of a ship at sea, on receiving information from any source that persons are in distress at sea, “to proceed with all speed to their assistance” (Chapter V, regulation 33-1 as amended). While the wording appears directed to the master in person, the obligation is probably better read as being on the state party to ensure that a master of a ship acts in the required way.
The convention also imposes on state parties an obligation “to ensure that necessary arrangements are made for distress communication and co-ordination in their area of responsibility and for the rescue of persons in distress at sea around its coasts” (Chapter V, regulation 7). These duties apply to “all ships on all voyages” other than ships of war and ships in the Great Lakes and tributaries (Chapter V, regulation 1).
Mirroring the 2006 adjustments to SAR, SOLAS was also amended explicitly to state that the duty to provide assistance “applies regardless of the nationality or status of such persons or the circumstances in which they are found”. It further provides that a rescued person should be treated “with humanity” while on board a rescue ship and then delivered to a place of safety.
Finally, there are two international conventions on salvage, both of which impose a requirement to render assistance at sea. The reason the salvage conventions impose this obligation is to ensure that priority is given to saving lives rather than property in a salvage situation.
The first is the Brussels Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea of 1910, or simply the Brussels Convention. Article 11 provides that
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 second is the International Convention on Salvage of 1989 (the Salvage Convention). Article 10 requires every ship’s master, “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” and imposes a duty on state parties to adopt the measures necessary to enforce that duty.
The United Kingdom ratified the original Brussels Convention, and as far as I can see has not denounced it. It has also ratified the Salvage Convention.
Extent of the duty of rescue
There are a number of terms or phrases that recur in these various conventions. The meaning is generally pretty plain but in order to understand the nature and extent of the duty of rescue it is still important to consider a few issues of interpretation.
Meaning of “distress”
The duty of rescue applies to a person in distress, potentially leaving some room for evaluating whether a person is truly in distress. The term is not further defined in the conventions but it must be understood bearing in mind the purpose and object of those conventions, which is clearly to save lives at sea.
There are a couple of old cases addressing what “distress” at sea means in legal terms. In The Eleanor (1809) 165 ER 1058, 1068 (available on Westlaw for the curious) distress was said to be urgent but not necessarily “an actual physical necessity existing at the moment”. In Kate A Hoff v the United Mexican States (Opinion) (General Claims Commission, United States and Mexico, 2 April 1929) (1929) 23 American Journal of International Law 860, 863 (available on JSTOR) it was suggested that a ship “need not be such a condition that it is dashed helplessly on the shore or the against rocks before a claim of distress can properly be invoked”.
The cases are old and should be viewed with caution, though: they predate modern human rights law and arose in a different context. Nevertheless, they seem to support the idea that where it is reasonably foreseeable that a person will end up in danger, that person would normally be regarded as in distress.
In the English Channel, one of the busiest shipping lanes in the world, it is hard to imagine circumstances where a small and somewhat overloaded boat such as those reported to be used for crossings would not be regarded as potentially in danger and therefore in distress. Deliberate intimidation tactics like running rings around such a boat in an armoured jet ski (forgive me, but Dennis Hopper eat your heart out) seems likely to cause the small boat to be in more distress. It might cause the passengers to do something even more dangerous. Any passengers who fell out of the boat or threw themselves overboard would certainly be in distress, and it is hard to imagine how they could be rescued by a handful of armoured jet skis.
Regardless of circumstances
The 2006 amendments to SAR and SOLAS make clear that the duty of rescue applies regardless of the circumstances in which a person is found. The duty therefore applies just as much to a person who contributes to or even causes their own distress as to a person who takes all reasonable precautions.
An analogy can be drawn to those sailors who put themselves at risk on their journeys. Some may wish to test themselves against the elements on an adventure of circumnavigation. Others might unknowingly and incompetently put themselves in danger on a far more mundane voyage. Whatever the circumstances and whatever the reason, there is a duty to assist them if they end up in distress. The duty applies equally to all.
Place of safety
The amendments to SAR and SOLAS requiring a ship’s master to disembark a rescued person in a place of safety has proven highly controversial in the Mediterranean and elsewhere. Several prominent examples have arisen of countries refusing to allow refugees to disembark from a ship, beginning but by no means ending with the Tampa in Australia in 2000. The Italian government has also refused to allow disembarkation.
Whatever disagreements arise between states, though, no state party to the Refugee Convention is permitted to “expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened”. This obligation is imposed by Article 33 of the Refugee Convention and is often referred to as the duty of non-refoulement. Interdiction of refugees at sea and their return to countries like Haiti or Libya is therefore highly questionable in legal terms, especially where no formal assessment of risk takes place. Return of migrants interdicted at sea to Libya was called into question by the UN Refugee Agency in September 2020 with the publication of a position statement arguing that Libya could not properly be considered a safe third country in refugee law or a place of safety in maritime law.
(Un)Enforceability of the law of the sea
The conventions we have looked at — UNCLOS, SAR, SOLAS and the salvage conventions — do not themselves offer any direct means of enforcing the duty of rescue against a country (or an individual) which acts in breach. In short, if a country acts in breach, so what? There might be diplomatic consequences but that is generally all.
The status and effect of international law is much debated, to put it mildly. According to the terms of international law itself, a country which ratifies a treaty agrees to be bound by its terms and the country is supposed to perform its obligations in good faith. No domestic national laws are supposed to be invoked as justification for failure to perform those obligations. The terms of the treaty are supposed to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. See the Vienna Convention on the Law of Treaties at Articles 2, 26, 27 and 31.
The astute will realise that this convention is itself a treaty. Which itself lacks any direct enforcement mechanism. But direct enforcement mechanisms on the international plane are not the only game in town. Norms of acceptable state behaviour can be important and national law will often bend towards international legal norms where feasible.
Some conventions do include direct enforcement mechanisms, such as a supervisory body or court which can declare breaches, order compensation or similar. The European Convention on Human Rights is an effective example, although even then the relationship between its enforcement mechanisms and the norms of state behaviour it has fostered is not simple. Which leads us to…
International human rights law
In contrast to the customs and conventions constituting the law of the sea, international human rights law does impose enforceable obligations. Court action for compensation or restitution can be pursued against a state. The right to life is highly relevant to the issues around duty of rescue.
International human rights law applies to all state actions within a state’s jurisdiction. While jurisdiction is mainly territorial, it can also arise where a state exercises “physical power and control over the person in question” (Bankovi? v Belgium). This principle has been applied to interdiction at sea, for example in the case of Hirsi v Italy. In that case, the European Court of Human Rights held that a refugee rescued or intercepted at sea is under the continuous and exclusive de jure and de facto control of the relevant authorities and therefore within the jurisdiction of those authorities for the purposes of human rights law. A state’s jurisdiction was also been held to be engaged where a person remains on their own vessel but under “full and exclusive control” of the state concerned (Medvedyev v France).
The right to life includes positive obligations to safeguard and protect life. This is long-established in case law (see for example LCB v United Kingdom) and is also the position of the influential UN Human Rights Committee: see General Comment No 36: The Right to Life at paragraph 18. The committee even specifically refers to the duty of sea rescue at paragraph 63:
States parties are also required to respect and protect the lives of all individuals located on marine vessels and aircraft registered by them or flying their flag, and of those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea.
This duty extends to the provision of air-mountain and air-sea rescue facilities. In the mountain rescue case of Furdik v Slovakia the European Court said:
… the 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. Depending on the circumstances, this duty may go beyond the provision of essential emergency services such as fire-brigades and ambulances and, of relevance to the instant case, include the provision of air-mountain or air-sea rescue facilities to assist those in distress.
The case underlines that the obligation is to provide an appropriate regulatory framework and adequate mechanisms in general, rather than to save every life in danger. The claim failed on its facts. But other claims have succeeded and others may well succeed.
Litigation on refugee rescue
Early in 2021, the United Nations Human Rights Committee found that Italy had breached its positive obligations to protect the right to life of thirteen people who had drowned in 2013 within the designated search and rescue area for Malta. It is thought that more than 200 people drowned after a boat carrying migrants from Libya towards Lampedusa, an Italian island, capsized. Passengers on the boat had contacted the Italian coastguard but there was a significant delay of several hours in assistance being rendered, despite the close proximity of an Italian navy vessel.
In twin decisions (AS and others v Italy CCPR/C/130/DR/3042/2017; AS and others v Malta CCPR/C/128/D/3043/2017), the committee considered by a majority that both Italy and Malta had concurrently held jurisdiction over the boat despite it being outside the national territory of either country. The incident took place in Malta’s search and rescue area, Malta had assumed formal responsibility for the rescue and had then “exercised effective control over the rescue operation, potentially resulting in a direct and reasonably foreseeable causal relationship between the State parties’ acts and omissions and the outcome of the operation”. The case against Malta was nevertheless held inadmissible for failure to pursue a domestic remedy there.
Italy was found responsible on the basis that “a special relationship of dependency” had arisen. This was because of the initial contact with the Italian coastguard, the close proximity of an Italian naval vessel and the legal obligations of Italy to render assistance under the SOLAS and SAR conventions. Italy was considered to have breached its positive obligation to protect life. There had been a failure to respond promptly to the distress call, a failure to dispatch the relevant naval vessel even once a formal request had been made by the Maltese search and rescue authorities, and a failure to explain telephone records indicating that the naval vessel had in fact been instructed to sail away from the vessel in distress.
The committee members were significantly divided on critical issues of jurisdiction and responsibility. International human rights law is likely to evolve further.
As yet, there have been no reported cases from the European Court of Human Rights on these issues. One case, SS and others v Italy (application no 21660/18), is pending before the court. It relates to the deaths of 63 migrants in a boat left adrift in the Mediterranean in 2011.
The outcome is keenly awaited.
A. Jillions, Commanding the commons: constitutional enforcement and the law of the sea (2012)
M. Milanovic, Drowning Migrants, the Human Rights Committee, and Extraterritorial Human Rights Obligations (16 March 2021)
M. Ratcovich, International Law and the Rescue of Refugees at Sea (2019)
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