5 Migrants in Distress at Sea
5 Migrants in Distress at Sea
5.1 We have included this category of potential MRO in our general consideration of the subject because, if in distress, people should be rescued whatever their status, and the overall rescue process should not differ according to who is being rescued.
5.2 This principle is clearly established in international law. Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS) states (in part) 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:
(a) to render assistance to any person found at sea in danger of being lost;
(b) 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 […]”
5.3 The International Convention for the Safety of Life at Sea (SOLAS) is also quite clear on the subject:
“The master of a ship at sea which is in a position to be able to provide assistance, on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance [...]. This obligation to provide assistance applies regardless of the nationality or status of such persons or the circumstances in which they are found [...].”
SOLAS Regulation V/33.1
Similarly, the International Convention on Maritime Search and Rescue makes clear that States who are party to the Convention, “on receiving information that any person is, or appears to be, in distress at sea [...] shall take urgent steps to ensure that the necessary assistance is provided [...].”
SAR Convention, Annex 2.1.1
These obligations apply to all vessels at sea, with certain very specific exceptions such as warships, which are nevertheless encouraged to comply.
5.4 The key phrase in this context is probably that in SOLAS: the obligation to provide assistance applies “regardless of nationality or status”. Although not explicitly stated in any of these conventions, it is clearly implicit that the obligation to rescue applies to asylum seekers and migrants in the same way as it does to anyone else in distress at sea.
5.5 Although this is generally accepted by States’ SAR authorities, our argument here is a little disingenuous. The point of principle is absolutely clear: people in distress at sea must be retrieved, have their immediate needs attended to and be delivered to a place of safety, whoever they are. However: migrants and asylum-seekers are a special case when it comes to being landed.
5.6 We are concerned here with people who attempt to enter a State by irregular means and by sea, often in vessels which are unseaworthy due to their build, condition, crewing or equipment. In international humanitarian law distinctions are made between refugees, asylum seekers and economic migrants; but their status is almost always unknown at the point of rescue, and there have been cases of delay in landing. That, unfortunately, has led to reports of people not being rescued, because their potential rescuer is concerned about the possibility of costly delay. There are also issues arising from rescue in territorial waters, cases where ‘distress’ is unclear, and as regards the principle of ‘non-refoulement’.
5.7 Non-refoulement is “a concept which prohibits States from returning a refugee or asylum seeker to territories where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.”
‘The scope and content of the principle of non-refoulement: Opinion’, Sir Elihu Lauterpacht and Daniel Bethlehem, for the United Nations High Commissioner for Refugees, 2001.
Although this is a principle enshrined in international humanitarian law, the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual does not specifically include it in its definition of ‘place of safety’ (see guidance paper 2.7). However, the IMRF takes the view that this is implicit. IAMSAR says that a ‘place of safety’ is “a location […] 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.” It does not include ‘freedom’ in its short list of examples – but it does not exclude it either.
5.8 The question about rescue in someone else’s territorial waters relates to whether ‘irregular migrants’ picked up and taken on to a place of safety in a State they were trying to reach have been illegally assisted to migrate by the rescuer. The IMRF takes the view, first, that the question of whether the waters where the rescue takes place are ‘territorial’ or ‘international’ is strictly irrelevant. The international conventions (UNCLOS, SOLAS and the SAR Convention) make no such distinction. Someone in distress at sea should be rescued whatever the status of the sea s/he is in.
5.9 The IMRF also takes the view that the place of safety to which survivors are taken should be selected according to the criteria discussed in guidance paper 2.7, including the principle of non-refoulement. If the State coordinating the rescue tells the rescuer to proceed to a particular place of safety, and it is not contrary to the survivors’ best interests to do so, the rescuer will comply – and this should avoid any concern about abetting legal migration. However, if the commander of the rescuing unit is concerned about any aspect of the place of safety proposed, s/he should discuss this concern with the coordinating rescue coordination centre and, if necessary, with the unit’s flag State authorities, usually via the unit’s parent organisation ashore.
5.10 The reaction of rescued people to being taken to a place of safety in a State they do not want to go to may be among the commander of the rescuing unit’s concerns. Security is a key factor. This too should be discussed as necessary with the relevant authorities. The International Chamber of Shipping’s ‘Large scale rescue operations at sea’ gives very useful guidance in this respect.
5.11 There was also been discussion about what actually constitutes ‘distress’. There have been cases of obviously unseaworthy migrant craft being encountered under way and not making distress signals, usually because they wish to leave a particular State’s territorial waters or not be rescued by a particular unit. Some authorities have argued that rescue is not yet required in such circumstances. Others contend that such craft are so unseaworthy that they are effectively in distress already.
5.12 The Maritime SAR Convention defines the ‘distress phase’ 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.” The IMRF’s view is that this hinges on the phrase “reasonable certainty”: the Convention does not mention distress signals or being stopped in the water. The judgement is essentially one of seamanship and common sense. You cannot rescue people who refuse to be rescued; but if it is ‘reasonably certain’ that they are in danger and that they will need to be rescued, sooner or later, the SAR authorities should react accordingly, offering rescue and keeping the vessel concerned under observation, with rescue units to hand.
5.13 There is one final point to make here. We noted above that the legal status of people in this sort of situation will almost always be unknown at the point of rescue. Are they refugees, with a legitimate claim to asylum, or are they economic migrants trying to avoid border controls? What is clear is that this assessment must be one made by the proper authorities, after rescue. Commanders of rescuing units cannot and must not make this assessment themselves, and should decline and seek further advice if they are asked to do so.
5.14 Put simply, people in distress at sea are simply people. Their legal status can only be determined once they have been delivered to a place of safety. The IMRF position is that the requirements to rescue incorporated in international law include both delivery to a place of safety and facilitating that delivery. Ships’ masters and others wishing to fulfil their SAR duties should be assured by the local SAR authorities that they will be allowed to disembark people they recover at sea without delay. If the ‘migrant problem’ is likely to be encountered locally, it should be built into the MRO planning.