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Rescue at sea. The safe harbor is not always the nearest

(B2) The new business ofAquarius where the Italian, Maltese and French governments pass the buck (once again), in the name of the law of the sea, deserves a little explanation of the text. Contrary to what the French government claims, the law of the sea does not require disembarkation at the nearest port... Explanations

Rescue at sea is governed by a set of rules (1) which establish the conduct to be followed and in some way codify the tradition of seafarers. Contrary to what some people sometimes indicate, there is no absolute standard. It all depends on the circumstances. But some principles are very clear. When we carefully read the guidelines of the IMO (the international maritime organization), they somewhat invalidate the position taken by several European capitals - Rome, Valletta but also Paris - which, to defend their political position, are surfing a bit with the law of the sea. Thus a rescue ship is not required to go to the nearest port (as Paris defends), and even less to hand over people collected at sea in a country which is not a safe place (as defended by Rome).

What is a safe place?

The definition of a safe place is given precisely by the IMO.

“The place of safety is a location where rescue operations are expected to end. It is also a place where the lives of survivors are no longer threatened and where their basic needs (such as food, shelter and medical care) can be provided. In addition, it is a place from which the transportation of survivors to their next or final destination can be organized. » (§ 6-12)

Is it necessarily the nearest port?

No. Moreover, the terminology of proximity is not mentioned in any way in the IMO guidelines. The choice of port of destination is normally made by the responsible government, which must decide with the captain of the ship (§ 6-10): it may be the ship's next planned port of call (when it comes to a commercial ship where any diversion is expensive), or another port to which the captain gives preference for disembarking survivors.

“The circumstances may in each case be different. [The] responsible Government [has] the latitude to address each situation on a case-by-case basis while ensuring that assisting vessel captains are released from liability within a reasonable time and with the minimum impact on the vessel. » (§ 2-6)

NB: the notion of closest port in the geographical sense of the term, used by the government (French or Italian in particular) is incorrect. It is the easiest port to reach according to the trajectory of the ship which is the criterion that emerges from the law of the sea. In this case, theAquarius whose new home port is Marseille, may well consider that this destination is the closest for him, and refuse the port of Valletta (closer geographically) given the attitude of the Maltese government towards NGOs.

Can the safe place be a ship?

Yes, if it is a suitable boat in this case. For example, a coast guard or public authority vessel (military vessel for example) suitable for collecting shipwreck victims.

“The place of safety may be on land or on board a rescue unit or other suitable vessel or facility at sea which can be used as a place of safety until the survivors are disembarked to proceed to their next destination. » (§ 6-14)

However, it cannot be made up of the vessel which provided assistance (NB: except a state vessel).

“An assisting vessel should not be considered a place of safety simply because survivors, once on board the vessel, are no longer in immediate danger. » (§ 6-13)

NB: paradoxically, we could consider theAquarius in itself as 'a safe place', being adapted to the reception and assistance of survivors. But this does not resolve the question of disembarkation.

Can migrants or refugees be disembarked in Libya?

No. This is excluded, both by UNHCR rules and the law of the sea. This is very explicit.

“The need to avoid disembarkation in territories where the life and liberty of people who claim to have well-founded fears of persecution would be threatened must be taken into account in the case of asylum seekers and refugees recovered at sea. » (§ 6-17)

NB: the position of the Italian government (supported covertly by certain other European governments) is therefore not in accordance with international law.

Can we make the ship wait at sea?

No. The first emergency is to disembark the people and free the ship. It's also very clear. And this is even the objective of the rules established at the international level.

“Governments and the RCC [Rescue Coordination Center] officials should make every effort to minimize the length of time survivors remain on board the assisting vessel. […] The responsible government authorities should do everything possible to ensure that the survivors on board the ship are disembarked as quickly as possible. » (§ 6-8 and 6-9)

Can sorting operations be carried out on board the ship

No, normally, unless it's super-fast. Which, in this case, seems delicate, given the numerous legal questions that may arise when granting possible asylum requests.

“All operations and procedures, such as screening and assessment of the status of rescued persons, which go beyond providing assistance to persons in distress, should not hinder the provision of assistance or unduly delay disembarkation survivors who are on board the assisting vessel(s). » (§ 6-20)

Who must find the safe harbor?

The answer is clear. It is normally up to the government responsible for the 'SAR' (sea rescue and search) zone where people have been rescued to find a safe place (in its country) or to ensure that the ship concerned will have one ( in another country).

“The responsibility for providing a place of safety, or ensuring that a place of safety is provided, lies with the Government responsible for the search and rescue region from which the survivors were recovered. » (§ 2-5)

NB: In this case, it would therefore be up to the Libyan government to do this work. But it seems difficult to ask him, given a certain lack of organization and the (legal) impossibility of welcoming migrants and refugees who flee the country.

Who should manage the disembarkation of people rescued at sea when they are migrants or asylum seekers?

The question of the fate of asylum seekers or migrants rescued at sea has been resolved after the landing. It is managed by the 'concerned' governments: the port of disembarkation, the shipowner, the flag, neighboring countries, etc.

“When the status of survivors or other non-search and rescue issues need to be resolved [NB: migrants or asylum seekers], the appropriate authorities can often deal with these issues after the survivors have were taken to a safe place. […] It is up to national authorities other than the RCCs [Rescue Coordination Center] that the responsibility for such initiatives generally lies. » (§ 6-18)

Which other States concerned must act?

The other governments concerned are required to find a solution.

“Flag States and coastal States should take effective measures to promptly assist captains and relieve them of their obligations towards persons picked up at sea by ships. » (§ 3-1)

NB: in the case ofAquarius, we can list five countries concerned: Malta and Tunisia which are coastal countries, — Italy to a lesser extent —, Panama as flag state, and France, which is the headquarters of the organizations which arm ' the ship, must act, quickly, to find a solution.

Conclusion: Marseille… a logical destination compliant with the law of the sea

If you read all the rules of the law of the sea, it is logical that the ship Aquarius disembarks the people rescued at sea in Marseille, as requested by SOS Méditerranée, since Malta and Italy refuse it and the Libyan solution is excluded.

(Nicolas Gros-Verheyde)

(1) These rules arise from the international convention for the safety of life at sea of ​​1974, the international convention on maritime search and rescue of April 1979 (§ 1.3.2 of the annex), but above all from the IMO (International Maritime Organization) Directive on the Treatment of Persons Rescued at Sea

Also read our file: No. 63. The presence of NGO vessels off Libya: welcomed, encouraged then reviled and refused (V2)

et What happens to the refugees rescued in the Aegean Sea? It's a little complicated

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).