“Rescuing ‘Boat People’ in the Mediterranean Sea: The Responsibility of States under the Law of the Sea”.

“Rescuing ‘Boat People’ in the Mediterranean Sea: The Responsibility of States under the Law of the Sea”.

Dr. Efthymios Papastavridis, LLM(Athens), LLM(UCL), PhD (UCL) is Adjunct Lecturer, University of Thrace, Faculty of Law and Research Fellow, Academy of Athens, Greece [papastavridis {at} Academyofathens(.)gr

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1. Introductory Remarks

According to a very recent article by The Guardian, ‘a boat carrying 72 passengers, including several women, young children and political refugees, ran into trouble in late March after leaving Tripoli for the Italian island of Lampedusa. Despite alarms being raised with the Italian coastguard and the boat making contact with a military helicopter and a warship, no rescue effort was attempted. All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days.’

The aforementioned incident, unfortunately, is not the only one that has occurred in the troubled waters of the Mediterranean Sea in recent years; Cap Anamur or the Pinar are only a couple of cases, in which the legal regime of search and rescue at sea has been seriously questioned. Therefore, a propos this incident as well as in view of the increasing number of “boat people” fleeing from North Africa in unseaworthy vessels, it is well worth making certain short comments with regard to the alleged violation of the law of the sea and the concomitant responsibility of the States involved.

Assuming that both the facts about the location of the vessel and the allegations concerning the inertia displayed by NATO units reported in the above-mentioned article by The Guardian are accurate, the following preliminary remarks are in order: first, since the distress call to the Italian authorities was made while the boat was on high seas (reportedly 60 n.m. off Libyan coast), the relevant applicable law is framed by the rules concerning search and rescue on the high seas. Secondly, it should be ascertained from the outset that NATO as such does not incur responsibility for the alleged internationally wrongful acts. On the one hand, only States are parties to the relevant treaties [with the sole exception of European Union, which is party to the UN Convention on the Law of the Sea (LOSC, 1982), albeit only in respect of matters relating to which competence has been transferred to it by Member States (Articles 4 and 5 of Annex IX of LOSC and EC’s Declaration, 1 April 1998; );. On the other, NATO is not bound by the corresponding rules of customary international law, since it is far beyond the remit of NATO to provide search and rescue assistance to vessels on the high seas. Thus, only Member States participating in the Operation Unified Protector against Libya might have incurred responsibility for the breach of the rules in question.

2. Obligations for Flag and Coastal States under the Law of the Sea

 The duty to assist persons in distress at sea is a long-established rule of customary international law. It extends both to other vessels and coastal States in the vicinity, and all persons, including irregular maritime migrants, remain protected. It has been codified in LOSC, which prescribes relevant duties for both the flag and the coastal States. First, with regard to flag States, article 98 (1) of LOSC provides that:

Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew, or the passengers … to render assistance to any person found at sea in danger of being lost … and to proceed to the rescue of persons in distress, if informed of their need for assistance, in so far as such action may be reasonably be expected of him.

Although the aforesaid provision is located in the Part of LOSC concerning the high seas, it is submitted that the duty in question applies in all maritime zones. An extremely germane question concerning the ratione materiae scope of the provision under scrutiny would reasonably be what qualifies as ‘distress’. At the outset, ‘distress’ is not defined by LOSC; yet it has been defined in the International Convention on Maritime Search and Rescue (SAR Convention, 1979) as ‘a situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance’ (para. 1.3.13). Further clarifications have been provided in relevant jurisprudence and authoritative commentaries. For example, in The Eleanor case (1809), it was held that distress must entail urgency, but that ‘there need not be immediate physical necessity’. Subsequently, the decision on the Kate A Hoff established that it is not required for the vessel to be ‘dashed against the rocks’ before a claim of distress can be invoked .In the light of the foregoing, there is certainly cogency in the argument that the overcrowded and unseaworthy vessels traversing the Mediterranean Sea, such as the vessel in the recent incident, are de facto in distress, and hence there is an obligation of assistance. This is consonant with the raison d’être of these operations, which is exclusively the protection of human beings.

On the face of article 98(1), the responsibility to rescue and provide assistance lies initially with the master of the ship that comes to rescue and entails the duty to deliver the people onboard to a place of safety. Every flag State must require the master of a ship flying its flag, both State and private vessels, to proceed with all possible speed to the rescue of persons in distress when informed of their need to assistance. The obligation of the flag State is essentially an obligation of conduct, i.e. the flag State has to provide for the duty in question in its domestic legislation; article 98 (1) is non-self-executing and requires implementing legislation to acquire the force of law. The obligation incumbent upon the master is one without qualification and no discrimination may be made according to the legal status of those persons to be rescued. The only exception is to the extent that it would be unreasonable to render assistance.

With regard to coastal States, article 98 (2) of LOSC stipulates:

‘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’

On the face of this provision, it is evident that LOSC postulates a general obligation of conduct on the part of coastal States to promote the establishment of search and rescue services as well as a general obligation of cooperation with other States to this end. Nevertheless, there is a conspicuous dearth in LOSC of specific rules of reference concerning the discharge of these obligations by the coastal States in the Convention. These broad principles are fleshed out by more detailed agreements established under the auspices of IMO, namely the 1974 Safety of Life at Sea Convention (SOLAS), which specifically deals with safety of navigation and rescue obligations. Chapter V, reg 10(a) of SOLAS echoed article 98(1) of LOSC, with the additional requirement requiring the master to record any reason for failing to render assistance, which may provide a check on decision-making; while Regulation 15(a) dealt with coastal State obligations. The other relevant IMO Convention is the 1979 SAR Convention, which, paragraph 3.1.7. explicitly stipulates that each State party must ensure that ‘its rescue coordination centre provide, when requested, assistance to other rescue coordination centres, including assistance in the form of vessels, aircraft, personnel or equipment’. Moreover, any search and rescue unit alerted to a distress incident must take immediate action if in position to assist (Annex, para. 4.3.). It follows that both the SOLAS and the SAR Convention primarily sets out obligations of cooperation and conduct and not of result.

In May 2004, in the wake of the celebrated Tampa incident and the initiatives that it fuelled, the SAR and SOLAS Conventions were amended to impose for the first time an obligation on States to ‘cooperate and coordinate’ to ensure that ships’ masters are allowed to disembark rescued persons to a place of safety, irrespective of the nationality or status of those rescued, and with minimal disruption to the ship’s planned itinerary. The primary responsibility to provide a place of safety or to ensure that a place of safety is provided falls on the Government responsible for the SAR region in which the survivors were recovered (SOLAS, Article 4.1-1 and SAR Convention, para 3.1.9) Moreover, according to the International Aeronautical and Maritime Search and Rescue Manual, the survivors ‘must be delivered in a place of safety as quickly as possible’.

It is readily apparent that these amendments have imported an obligation of coastal States not only to cooperate for the prompt and effective release of the master providing assistance to people at sea, but also, essentially, to ensure the provision of a place of safety to these people. Hence, from an obligation of cooperation and conduct, which the original treaty provisions set forth, the coastal State responsible for the SAR region is now faced with an obligation of result, i.e. to ensure that a ‘place of safety’ is furnished. However, arguably, this obligation of the State parties to SOLAS and SAR Convention to provide ‘a place of safety’ as soon as reasonably practicable does not necessarily mean that the State responsible for the SAR region is obliged to disembark the survivors in its own area. On the face of the provisions, it is submitted that the coastal State has only the obligation to ensure that a place of safety is provided to these people without being under an explicit obligation to allow disembarkation on its own territory. This has been rightly criticized as the most notable shortcoming of the relevant treaty regime, as it falls short of adequately addressing incidents, such as the Pinar or the Tampa. To address this problem, there have been recently certain initiatives in the context of IMO and EU to enhance the relevant obligations of the coastal States and read in them such a ‘residual’ obligation of disembarkation on their territory, which have not yet materialized.

In conclusion, there are certain treaty and customary obligations under the law of the sea. These obligations are principally the following: on the one hand, the obligation of the flag State to prescribe the obligation of the master of the vessel to proceed to the rescue of persons in distress at sea and, on the other, the obligations of coastal States to develop and maintain adequate search and rescue services and, upon rescue, to ensure that a ‘place of safety is provided for these persons.

3. The Responsibility of States for the Incident off Libyan Coast of April 2011. 

In the recent incident, which prompted this post, there are a number of States, which are under the above-mentioned obligations. First, the coastal State, in whose SAR zone the vessel was in distress, was under an obligation to coordinate the search and rescue operation and to ensure that a ‘place of safety’ is provided for these persons. The exact limits between the SAR zone of Libya and Italy are not known to the author; however, both States are parties to LOSC, SOLAS and SAR Conventions and apparently they might incur responsibility for their omission to provide assistance to the vessel in distress. Of course, Libya is in a state of armed conflict, which, nonetheless, does not per se alleviate its responsibility to abide by its treaty obligations; moreover, even if Libya’s search and rescue authorities operated normally, still there was no indication that they were duly notified.

On the contrary, the corresponding Italian authorities were allegedly notified about the situation and the location of the specific vessel and stayed inert. Under international law, all States have the obligation to cooperate and assist in the rescue operation, regardless whether they bear the primary responsibility, qua the State responsible for the SAR, or whether they bear the general obligation of article 98 (2) of LOSC. Thus, it could be argued that Italy has incurred responsibility for this omission,

As far as the NATO Member States, which allegedly omitted to provide assistance to the vessel, are concerned, the question of their responsibility could be addressed as follows: the obligation of the flag States under article 98 (1) of LOSC is supposed to be discharged with the enactment of a duty of rescue in their domestic legislation; however, they are also under an obligation to exercise disciplinary control and jurisdiction over potential infringements of this duty in accordance with their legislation. Bearing this in mind as well as of the fact that the vessels in question were warships and thus the masters, with which the pertinent duty lied, were de jure organs of the States involved, their conduct was directly attributable to the flag States (article 4 of ILC Articles on State Responsibility, 2001). Thus, it is very difficult to persuasively argue that they have not breached their obligations under law of the sea. Their sole justification would be that it could not reasonably be expected to render assistance due to their other priorities in the region. However, such justification would not alleviate them from their obligation to notify other States in the vicinity to render assistance.