Rescue

Refugees and migrants travelling irregularly by sea often have no choice but to use unseaworthy, overloaded vessels, which are lacking in basic safety equipment.  These vessels can be deadly. This is especially the case in the Mediterranean Sea, which is the most lethal border in the world. Of the more than 22,500 people who have reportedly died or disappeared globally attempting to cross borders between 2014 and 2017, more than half died attempting to cross the Mediterranean. You can find statistics on sea arrivals and deaths at sea in the Mediterranean here.

Masters of ships have a clear and binding legal obligation to rescue people who are in distress at sea. Rescue encompasses retrieving people in distress, providing for their initial medical or other needs, and delivering them to a place of safety. States also have an obligation to carry out search and rescue operations and to require vessels that are registered in their country (flagged to them), to rescue anyone in distress on the water.

The legal obligation to rescue applies regardless of the nationality or status of the person in distress or the circumstances in which they are found. This means that the law requires ship masters to provide assistance to everyone, irrespective of whether or not they are refugees fleeing persecution or leaving for other reasons such as poverty or insecurity.

The obligation of rescue applies both to state vessels, this means ships belonging to the Navy or Coast Guard, and to multi-state organisations such as the European Coast Guard Agency, (Frontex) and European Union Naval Force (EUROMED). Importantly, it also applies to private vessels, which are ships that are not directly owned and operated by a state. These include ships belonging to NGOs and merchant vessels that are carrying out commercial activities.

All vessels at sea, including vessels belonging to NGOs, have a legal obligation to rescue people in distress at sea, provide for their initial medical or other needs, and ensure their delivery to a place of safety.

Where is the obligation to rescue found?

The legal obligation to rescue people in distress at sea can be found in a number of places.

Firstly, the obligation to rescue people at sea who are in distress is a rule of customary international law. Customary international law is one of the primary sources of international law and is based on state practice. It is binding, which means that it must be followed.

This customary law obligation to rescue people in distress at sea has also been written down and agreed upon in a number of treaties that states have voluntarily signed and have consented to be bound by.

The first of these treaties is the UN Convention on the Law of the Seas (UNCLOS). You may also see UNCLOS referred to as the Law of the Sea Convention or the Law of the Sea treaty.  UNCLOS establishes a comprehensive set of rules governing the oceans.

Article 98 (b) of UNCLOS requires states to “proceed with all possible speed to the rescue of persons in distress”.  Article 11 of UNCLOS provides that States must:

  • Require the masters of ships, registered in their country, “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 of him [or her].”

The  International Convention for the Safety of Life at Sea   (SOLAS) 1974, is more specific about the obligation of states. Regulation 7.1 provides that states which have agreed to be bound by the convention

“undertake to ensure that any necessary arrangements are made for distress communications and coordination in their area of responsibility and for the rescue of persons in distress at sea around its coasts. These arrangements shall include the establishment, operation and maintenance of such search and rescue facilities as are deemed practicable and necessary, having regard to the density of the seagoing traffic and the navigational dangers, and shall, so far as possible, provide adequate means of locating and rescuing such persons.”

The International Convention on Maritime Search and Rescue (SAR Convention) 1979, is even more demanding of states and aims to establish an international search and rescue plan so that no matter where an accident occurs, people in distress at sea will receive the assistance they require. Countries that have agree to be bound by the SAR Convention are required to ensure that necessary arrangements are made so that they can provide adequate search and rescue services for people in distress at sea.

When organised well, rescue operations can be swift and coordinated. However, rescue operations are complex and involve a number of actors. Despite the fact that customary international law, codified in a number of treaties, places a clear obligation to rescue people in distress and disembark them at a place of safety,  states are often reluctant to search for and rescue refugees and migrants who may be in distress at sea for fear of assuming responsibility for those found. States may also be reluctant to assist vessels such as NGOs in their rescue operations or to accept the disembarkation of rescued individuals in their territory.

 Who MUST be rescued under the law?

The legal obligation to rescue applies to anyone in ‘distress’ at sea.

A vessel can be in distress without asking for assistance.

Distress is defined under the law as “[a] situation wherein there is reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance”.

Under European Union Law a number of objective factors, such as the seaworthiness of the vessel, the number of passengers on board, the availability of supplies, the presence of qualified crew and navigation equipment, the weather and sea conditions, as well as the presence of particularly vulnerable, injured, or deceased persons, should be taken into account when determining if a vessel is in distress.

Other relevant factors include overcrowding, poor conditions of the vessel, or lack of necessary equipment and expertise.

Who is Permitted to Carry out Rescues and Can Vessels at Sea be Lawfully Prevented from Providing Rescue?

Under international law, every vessel at sea is not only permitted to rescue people in distress at sea but is legally required to.

Many rescue NGOs have faced situations in which the Libyan Navy has attempted to stop them from rescuing vessels at sea by declaring that they are in its Search and Rescue Zone. This is unlawful for a number of reasons:

A search and rescue region or zone (SAR Region) is an area where a country has accepted primary responsibility for search and rescue operations. Under Regulation 33 of SOLAS  the state responsible for a Search and Rescue Region is responsible for ensuring co-ordination and co-operation occurs, “so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety”.  Search and Rescue regions are connected to a Maritime Rescue Centres and are registered with the International Maritime Organisation.

It is worth noting that Libya does not in fact have a functioning Maritime Rescue Centre and has not registered a search and rescue region with the International Maritime Organisation.

However, even if Libya had a functioning maritime rescue centre and a validly registered search and rescue region with the International maritime organisation, it would not be permitted to exclude foreign ships from its search and rescue region. States do not have sovereignty over their search and rescue regions.

SAR regions are different to the territorial sea (which extend up to 12 nautical miles from a coastal state’s shores under UNCLOS) because the territorial sea is considered part of the territory of a coastal state. SAR regions are not the territory of a state. Rescues conducted by rescue NGOs occur outside Libya’s territorial waters (that is, outside the 12 nautical mile line over which Libya has sovereignty).

In summary, therefore Libya is not permitted to prevent rescue NGOs from saving lives at sea because:

  1. It does not have a recognised search and rescue region
  2. Even if it had a recognised search and rescue region, it would not have sovereignty over this region and would not be permitted to prevent life saving assistance

 What are the rights of people in distress at sea?

The right to be rescued is not the only right owed to people who are in distress on the water. There are also a range of other rights that apply at sea.

Right to Life

The right to life can be found under Article 6 of the International Covenant on Civil and Political Rights (ICCPR). The right to life can be violated if people in distress at sea are not rescued. It can also be violated if a vessel, such as the Libyan Coast Guard, places people’s life in jeopardy by creating a hostile situation that leads to fear and panic among people and results in migrants and refugees drowning.  It can also be violated if the a coast guard does not have adequate resources and personnel to provide a safe rescue but stops rescue NGOs from providing assistance- leading to deaths.

Humane treatment at sea

People in distress at sea also have a right to be free from torture (under Article 3 of the Convention Against Torture and Article 7 of the ICCPR) as well as the right to be free from  inhuman, degrading treatment or punishment (also under Article 7 of the ICCPR). In addition, people at sea have the right to be treated humanely under aspects of transnational criminal law. The Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (Smuggling Protocol) for example, explicitly states as one of its purposes, the protection of smuggled migrants. The rights under the smuggling protocol include:

  • When acting against vessels at sea, states have to ensure the safety and humane treatment of the persons on board and to take account the special needs of women and children (Article 9 of the Smuggling Protocol).
  • States should take all appropriate measures to protect the rights of smuggled migrants, in particular the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 16 (1) of Smuggling Protocol)
  • States should take appropriate measures to afford migrants appropriate protection against violence that may be inflicted upon them (Article 16 (2) of Smuggling Protocol).

These rights to be free from mistreatment can be violated by people smugglers as well as vessels that use unlawful force to change the course of a ship at sea, including coast guards.

Non-refoulement

People at sea may also have a right to non-refoulement. This means the right not to be returned to a place where they may face certain harms.

Refugees, who are people fleeing persecution because of their race, religion, nationality, membership of a particular social group or political opinion, have a right not to be returned to persecution under Article 33 of the Convention Relating to the Status of Refugees (Refugee Convention).

People who are not refugees may never the less be protected from refoulement if there is a risk that they will be tortured (Article 3 of the CAT and Article 7 of the ICCPR); be subjected to cruel, inhuman, degrading treatment or punishment (Article 7 of the ICCPR) or that their life may be compromised (Article 6 of the ICCPR).  European countries that are bound by the European Convention on Human Rights, also have additional obligations to protect individuals against all forms of return to places where they risk subjection to torture, or to inhuman or degrading treatment or punishment.

Returning rescued people at sea to a place known to torture refugees and migrants, such as Libya, is therefore a clear violation of international law.

Pull backs

Pull backs are operations by countries to stop people from leaving their territory by stopping vessels in the water and returning them to the coastal country they were attempting to flee. Italy and the European Union have assisted the Libyan Coast guard in doing this by providing ships, training local law enforcement and jointly participating in interception activities. Pull backs are also performed by a range of other countries in the region such as Turkey, Tunisia, Mauritania and Senegal, and are supported by individual states or the EU as a whole.

Pull backs violate international law in a number of ways:

Firstly, pull backs can result in the torture of refugees and migrants, refoulement and arbitrary detention. There is considerable evidence that refugees and migrants are subjected to grave human rights abuses in Libya. Their pull back into Libya can therefore lead them to be gravely harmed.

Secondly, under international law, everyone has the right to leave their country. This right is found under Article 12 of the ICCPR. It is such an important right that it is also found in a number of other human rights treaties such as Article 10 of the Convention on the Rights of the Child;  Article 8 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICPMW) and Article 5(ii) of the International Convention on the Elimination of All Forms of Racial Discrimination. States, such as Libya, are responsible for violating this right where they prevent people from leaving their territory, including through interceptions that take place within their territorial waters.

Pull backs are different to push backs, which are when a country, other than the country being fled, such as Italy, stops migrants and refugees at sea and returns them to the coastal state that they had attempted to leave, such as Libya.

Italy used to have a policy of push backs whereby it would intercept ships carrying migrants and refugees at sea and return the people to Libya. In 2011, the European Court of Human Rights found push backs by Italy to be illegal under the decision of Hirsi Jamaa and Others v Italy. The decision confirmed that European countries cannot engage in push backs if the return of refugees and migrants would result in human rights violations.

Funding and providing assistance to states such as Libya to do pull backs, is therefore a way for European countries to try and evade their legal responsibility. However, under customary international law (codified under Article 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts ), European states remain responsible for human rights violations if they aid or assist another country in violating the rights of refugees and migrants. To be held responsible, the aiding country needs to know the circumstances of the violations. The violations would also need to be wrong if they were committed by the country providing the assistance.

There is therefore a very strong argument that European states can be held responsible for violations of rights happening because of pull backs in Libya as these violations are well documented and widely known.

Place of Safety

A rescue operation ends when the people rescued are disembarked at a place of safety. The obligation to deliver individuals to a place of safety can be found under Paragraph 3.1.9 of the SAR Convention as well as Regulation 33 of the SOLAS Convention.

A place of safety is

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.

A place where people are at risk of refoulement; cruel, inhuman degrading treatment or punishment; or death, is not a place of safety for the purpose of disembarkation following rescue. For this reason, rescuing vessels cannot disembark rescued persons at a place where they would be at risk of such harms.

As Libya is a place where migrants risk refoulement, cruel, inhuman degrading treatment or punishment; or death, it cannot be a place where rescued people are disembarked under the law.

When rescue vessels refuse to hand over migrants and refugees to Libyan authorities, they do so because of their obligations under international law. There is no obligation for rescue NGOs to hand over people at risk of harm to Libya. It is, however,  unlawful for any vessel, including vessels operated by NGOs, to disembark people they rescued at a place where there is evidence that they will be harmed.