Rescue at sea. The safe harbor is not always the nearest
(B2) The new case of theAquarius where the Italian, Maltese and French governments pass the buck (again) in the name of the law of the sea, deserves a little text explanation. Contrary to what the French government claims, the law of the sea does not impose 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 you 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, surf a little 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 deliver the people rescued at sea in a country which is not a place of safety (as Rome forbids).
What is a safe place?
The definition of a place of safety is given precisely by the IMO.
“The place of safety is a location where rescue operations are supposed 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 met. In addition, it is a place from which the transport of the survivors to their next destination or their 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): this may be the ship's next scheduled 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 flexibility to deal with each situation on a case-by-case basis while ensuring that masters of assisting vessels are cleared of liability within a reasonable time and with minimal impact to the vessel. (§ 2-6)
NB: the concept of nearest 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 which emerges from the law of the sea. In this case, theAquarius whose new home port is Marseilles, may very well consider that this destination is the closest for him, and refuse the port of Valletta (geographically closer) 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 coastguard or public authority vessel (military vessel, for example) suitable for picking up shipwrecked people.
“The place of safety may be ashore or aboard a rescue unit or other suitable vessel or installation at sea that can be used as a place of safety until the survivors are disembarked to proceed to their next destination. (§ 6-14)
On the other hand, it cannot be made up of the ship which provided assistance (NB: except a State ship).
“An assisting vessel should not be considered a place of safety, simply because the survivors, once on board the vessel, are no longer in immediate danger. (§ 6-13)
NB: paradoxically, one could consider theAquarius in itself as 'a place of safety', being suitable for the reception and assistance of survivors. But that does not settle the question of the 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 freedom of those who claim to have well-founded fears of persecution would be at risk is to 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 people and free the ship. It is also very clear. And this is even the objective of the rules established at the international level.
“Governments and the RCC [Rescue Coordination Center] responsible should make every effort to minimize the length of stay of survivors on board the assisting vessel. [...] The responsible government authorities should make every effort to ensure that the survivors on board the ship are disembarked as soon 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 tricky, given the many legal issues that may arise for the reception of possible asylum applications.
“Any operations and procedures, such as screening and assessment of the status of rescued persons, which go beyond the assistance provided to persons in distress, should not impede 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) area where people have been rescued to find a place of safety (in their country) or to ensure that the ship concerned will have one ( in another country).
“The responsibility to provide a place of safety, or to ensure that a place of safety is provided, rests 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 fleeing the country.
Who should manage the disembarkation of people rescued at sea when it comes to migrants or asylum seekers?
The question of the fate of asylum seekers or migrants rescued at sea is settled after the disembarkation. It is managed by the 'concerned' governments: the port of disembarkation, the shipowner, the flag, neighboring countries, etc.
"Where 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 to national authorities other than the RCCs [Rescue Coordination Center] generally responsible for such initiatives. (§ 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 steps to assist masters without delay and release them from their obligations in respect of persons recovered 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 the 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 in accordance 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 disembark 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 stem 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 appendix), but above all from the IMO (International Maritime Organization) guideline 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
