International Law and the Duty of Rescue at Sea 7/5/2019 International Law and the Duty of Rescue at Sea Some of you are acutely aware of the Med migrant issues. Others less so. Mariel Exodus of 1980: 125K over 6 months. 87K in May. Combination of Cuban push and USA Pull factors Ended only after Cuba closed its ports to departures Craig H. Allen Judson Falknor Professor of Law University of Washington Seattle, Washington USA Allen: Rescue Duties under Int'l Law

Informal Meeting Agenda 7/5/2019 Informal Meeting Agenda The legal definition of "distress." Is there / should there be a legal difference between search and rescue and mass migration? If so, are any amendments to Conventions required? Are requirements for coastal state monitoring of vessels during a mass migration adequate? Are procedures and guidelines for merchant vessels conducting mass migration operations at sea adequate? Are policies and procedures for disembarkation of migrants adequate? If not, are amendments to Conventions required? What costs, if any, should merchant vessels assisting in mass migration operations recover? Are amendments to Conventions required? Are the legal immunities for private ships, companies and personnel conducting mass migration operations adequate? Are amendments to Conventions required? Do we need another A/920(22) Review involving all involved agencies? Syria: Pre-war population = 20M Now: Turkey: 1.5M; Lebanon: 1.1M; Jordan: 623K; Iraq: 234K; Egypt: 13K = 3.6M 7.6M internally displaced Eu Apr 2014-Apr 2015: 191K asylum seekers: 114K asylum claims accepted; 77K rejected Source: IMO Circular Letter No. 3572 Annex I. Allen: Rescue Duties under Int'l Law

Goals of the International Regime 7/5/2019 Goals of the International Regime Maritime Safety and Security Protect Individual Rights/Dignity Protect State Sovereignty and Border Security Prevent/Combat Transnational Crime Facilitate Maritime Commerce Tensions here: Ordinary rescue of mariners in distress vs. mass migrations The Maritime Safety and security regime, including humanitarian rescue principles The International Human Rights International refugee/Asylum Regime International Criminal Law Global And Regional Law Competency is spread across multiple International Organizations IMO Res. MSC.167(78) (2004) ¶ 6.21: “issues other than rescue relating to asylum seekers, refugees and migratory status are beyond the remit of the IMO, and beyond the scope of the SOLAS and SAR Conventions.” Allen: Rescue Duties under Int'l Law

Locating the Mixed Migration Problem 7/5/2019 Locating the Mixed Migration Problem State of Origin/Nationality Concerns/Obligations Intermediate States’ Concerns/Duties 1. Flee/Emigrate Port of Embarkation State’s Concerns/Obligations Carrying Vessel’s Flag State’s Concerns/Duties 2. Embark Vessel Search and Rescue Region (SRR) State’s Duties/Concerns Carrying Vessel’s Flag States’ Concerns/Duties 3. Distress at Sea Search and Rescue Region (SRR) State’s Duties Assisting Vessel’s Flag States’ Concerns/Duties 4. Rescue Receiving State’s Concerns/Duties 5. Disembark Processing States’ Concerns/Duties “Cooperating” States’ Concerns/Duties 6. Process State of Eventual Settlement Concerns/Duties 7. Settlement #4. 2003 Dublin Regulation “First EU state” has obligation to determine person’s eligibility for refugee status. The incident might also lead to an interdiction and prosecution. Allen: Rescue Duties under Int'l Law

Applicable International Law 7/5/2019 Applicable International Law UNCLOS SOLAS SAR SALCON FAL UN CHARTER INTERNATIONAL HUMAN RIGHTS AND REFUGEE LAW TOC CONVENTION MIGRANT SMUGGLING PROTOCOL 2006 SOLAS Amendments: MSC.153(78) 2006 SAR Amendments: MSC.155(78) IHRL/Refugee law: UNHCR CTOC: UNODC and Interpol The 2006 amendments to SOLAS address the ships’ obligations and SAR addresses the coastal states’ obligations. For an explanation, see Guidelines on the Treatment of Persons Rescued at Sea, Res. MSC.167(78) (2004). As amended effective 2006, following Res. A.920(22)(2002) review and issuance of MSC.167(78), Guidelines on the treatment of persons rescued at sea. Allen: Rescue Duties under Int'l Law

1982 UN Convention on The Law of the Sea (UNCLOS) 7/5/2019 1982 UN Convention on The Law of the Sea (UNCLOS) Entered into force in 1994; 166 states-parties. Not easily amended. UNCLOS is a framework; it does not displace: Customary international law. Other treaties compatible with UNCLOS (e.g., SOLAS, SAR). UNCLOS SAR Related Duties:* Article 98(1): Flag State shall require master to render assistance and to rescue persons in distress at sea. Article 98(2): Coastal State shall “promote” SAR. Not Turkey or Israel (or USA) * Note: the SAR and SOLAS Conventions predate the 1982 UNCLOS Convention but the UNCLOS Article 98 duties were carried forward from the 1958 CHS. Allen: Rescue Duties under Int'l Law

Selected References to “Distress” 7/5/2019 Selected References to “Distress” UNCLOS Articles 18, 39, 98, 109 (and incorporated by reference in Articles 45, 54). SOLAS, Ch. III, Reg. 3; Ch. IV, Reg. 2(2), 4; and Ch. V, Regs. 7, 8, 29, 33, 35. SAR Convention (Annex and IAMSAR Manual). Chicago Convention on Civil Aviation, Art. 25. Int’l Law Comm’n Articles on State Responsibility, Art. 24. Various Bilateral Friendship, Commerce and Nav. Treaties. See also Cargo Liability Conventions (generally excluding liability for cargo damage resulting from “saving or attempting to save life or property at sea.”). Agenda Item #1: What are the metes and bounds of “distress” and the Rescue Duty? Two contrasting points of view: Be precautionary. Do you want masters/RCC controllers arguing over whether an incident is a “distress”? Masters complain that EU RCC’s are misusing their authority by requiring M/V’s to surveil migrant ships not in distress. See Walker, Definitions for the Law of the Sea (Terms Not Defined by 1982 UNCLOS) (NijHoff Publ. 2012), at 169-175 (American Branch of Int’l Bar Association). Allen: Rescue Duties under Int'l Law

UNCLOS Article 98(1) Duty to Render Assistance 7/5/2019 UNCLOS Article 98(1) Duty to Render Assistance 1. 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; #1 is the “come upon” duty. #2 is the “respond to” duty. SOLAS V/33 gives Coastal State power to requisition ships Carried forward, with some changes, from Article 12(1) of the 1958 Convention on the High Seas. See also SOLAS Regulation V/33. Allen: Rescue Duties under Int'l Law

UNCLOS Article 98(2) Duty to Render Assistance 7/5/2019 UNCLOS Article 98(2) Duty to Render Assistance 2. 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 neighboring States for this purpose. Weak language, but fleshed out by SOLAS/SAR Conventions Carried forward, with some changes, from Article 12(2) of the 1958 Convention on the High Seas. See also SOLAS Regulation V/7.1. Allen: Rescue Duties under Int'l Law

UN Convention Against Transnational Organized Crime (CTOC) 7/5/2019 UN Convention Against Transnational Organized Crime (CTOC) 185 Parties to CTOC; 141 Parties to Protocol (EU, Libya, Syria, Turkey). Protocol against the Smuggling of Migrants by Land, Sea and Air (adopted in 2000) only applies if the incident involves transnational organized crime. Calls on states-parties to criminalize the “smuggling of migrants” (but not the act of illegal entry by the migrant). Aggravated offense if the smugglers’ acts endanger, or are likely to endanger, the lives or safety of the migrants concerned. Calls upon states-parties to cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea. Also addresses at-sea interdiction (but confers no new boarding authority). Calls upon states-parties to strengthen, to the extent possible, such border controls as may be necessary to prevent and detect the smuggling of migrants [this duty extends to embarkation states]. Palermo Convention Largely a 1997 initiative of Italy: Only a coordinated international approach could succeed See also IMO Res. A.773(18) (1993) & A.867(20 (1997). Full preserves effect of the Refugee convention and Protocol. See also IMO Circular MSC/Circ.896/Rev.1 (duty of cooperation) Allen: Rescue Duties under Int'l Law

UN Convention Relating to the Status of Refugees (1951) 7/5/2019 UN Convention Relating to the Status of Refugees (1951) 70 States are party to Convention or Protocol. Defines criteria for refugee status (Art. 1A(2)), rights of refugees and asylum seekers, and the legal obligations of states. Article 33 Non-refoulement rule: "No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Libya not a party. Allen: Rescue Duties under Int'l Law

European Human Rights Convention 7/5/2019 European Human Rights Convention Hirsi v. Italy (ECHR 2012) facts: In 2009, during the Libyan armed conflict, Italian government vessels intercepted vessels on the high seas carrying migrants (mostly Somalis and Eritreans) off the coast of Libya and returned them to Libya. None had claimed asylum. Holding by the European Court of Human Rights: Italy had ‘jurisdiction’ over the migrants aboard the Italian vessels in international waters under Article 1 of the EHRC (rejecting a “SAR exception” to jurisdiction). Accordingly, Italy had a duty to uphold human rights of those aboard the vessels and to protect them from being disembarked in a state where they risk suffering serious harm. Italy was ordered to compensate migrants €15,000 each, but only one judge would have required Italy to admit them until a asylum determination could be made. Regional cases like this make this a special case (don’t alter the global regime to accommodate it) 9/15/2015: UK Attorney General announced UK may w/d from ECHR in next 5 years unless changes made. UNHRC Background Note concluded that the duty to rescue at sea does not entail a duty to grant asylum. Although by boarding the vessel the asylum seeker falls under the jurisdiction of the flag state.. “there is, however, no valid legal basis for considering that by boarding a vessel a refugee has entered the territory of the state exercising jurisdiction over the ship.” The “rescue” is not complete, however, and the ship is not released, until the rescuees are delivered to a place of safety. If that place of safety is an EU member state, under the 2003 Dublin Regulation that state has an obligation to determine the person’s eligibility for refugee status. Allen: Rescue Duties under Int'l Law

Convention on Facilitation of International Maritime Traffic (1965) 7/5/2019 Convention on Facilitation of International Maritime Traffic (1965) 115 states-parties representing 90.77 % of the world's fleet by tonnage. See FAL Convention Annex (as amended in 2005): Section 2, ¶ H: Special measures of facilitation for ships calling at ports in order to put ashore … persons rescued at sea; Section 7, ¶ C: Emergency Assistance. See also FAL.3/Circ.194 (Jan. 22, 2009) Principles relating to administrative procedures for disembarking persons rescued at sea. Responsibility for coordinating disembarkation lies with the state responsible for the SAR region. Allen: Rescue Duties under Int'l Law

SOLAS 74/78 162 states-parties representing 98% of ships. 7/5/2019 SOLAS 74/78 162 states-parties representing 98% of ships. Art. VIII tacit acceptance amendment procedure for Chapters II-XII (not Convention articles or Chapter I). Principal Search and Rescue (SAR) related regulations: Reg. V/7: Coastal State Search and Rescue Services (see also UNCLOS art. 98(2)). Reg. V/33: Distress Situations; obligations and procedures (see also UNCLOS art. 98(1)). 2006 Amendments adopted in IMO Res. MSC.153(78) (2004). See also: Article IV: Application of SOLAS in cases of force majeure. Reg. III/17-1: Recovery of persons from the water. Reg. V/21: IAMSAR Manual carriage requirement. A strong convention b/c mutuality of burdens and benefits. Compare to SAR Convention, where burdens/benefits are Asymmetrical Article IV: taking on rescued persons does not put a vessel out of compliance with SOLAS Allen: Rescue Duties under Int'l Law

SOLAS Regulation V/7: Search and Rescue Services 7/5/2019 SOLAS Regulation V/7: Search and Rescue Services 1. Each Contracting Government undertakes to ensure that necessary arrangements are made for distress communication and co-ordination 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. Agenda Item#3: Coastal State monitoring And MDA issue. Usual means are GMDSS, AIS, LRIT, etc. But migrant smuggling vessels go dark SOLAS Chapter V can be amended by tacit acceptance procedure. But the corresponding Article 98(2) in UNCLOS cannot. Allen: Rescue Duties under Int'l Law

SOLAS Regulation V/33: Distress Situations; obligations and procedures 7/5/2019 SOLAS Regulation V/33: Distress Situations; obligations and procedures ¶ 1: Master’s obligation to assist. ¶ 1.1: Contracting Governments’ obligations. ¶ 2. Requisitioning other SAR assets. ¶ 3. Release of assisting vessel. ¶ 6. Masters of ships who have embarked persons in distress at sea shall treat them with humanity, within the capabilities and limitations of the ship.* * See IMO Res. MSC.167(78): Guidelines on the treatment of persons rescued at sea–adopted by the MSC on 20 May 2004. Allen: Rescue Duties under Int'l Law

7/5/2019 SOLAS Regulation V/33 1. 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, if possible informing them or the search and rescue service that the ship is doing so. This obligation to provide assistance applies regardless of the nationality or status of such persons or the circumstances in which they are found. SOLAS Chapter V can be amended by tacit acceptance procedure. But the corresponding Article 98(1) in UNCLOS cannot. Allen: Rescue Duties under Int'l Law

Adequacy of Procedures and Guidelines for Merchant Vessels Res. MSC.167(78): Guidelines on treatment of persons rescued at sea. IAMSAR Manual Volume III. IMO/UNHCR/ICS: Rescue at Sea: A Guide to Principles and Practice as Applied to Migrants and Refugees (2015 update). ICS: Large Scale Rescue Operations at Sea (2015).

Limited Civil Immunity of Assisting Vessels 7/5/2019 Limited Civil Immunity of Assisting Vessels Immunity law is a “patchwork”; some examples: 1989 Salvage Convention, Article 10(3) [owner immunity]. Hague and Rotterdam Rules [excluding liability for cargo damage resulting from “saving or attempting to save life at sea.”; deviations to save life are per se “reasonable.”]. [United States] 46 U.S.C. § 2303(c): An individual … gratuitously and in good faith rendering assistance at the scene of a marine casualty without objection by an individual assisted, is not liable for damages as a result of rendering assistance or for an act or omission in providing or arranging salvage, towage, medical treatment, or other assistance when the individual acts as an ordinary, reasonable, and prudent individual would have acted under the circumstances. National laws on immunity of public vessels are not uniform. Allen: Rescue Duties under Int'l Law

7/5/2019 SOLAS Regulation V/33* 1.1: Contracting Governments shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships' intended voyage, provided that releasing the master of the ship from the obligations under the current regulation does not further endanger the safety of life at sea. The Contracting Government responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases the relevant Contracting Governments shall arrange for such disembarkation to be effected as soon as reasonably practicable. Concern here: don’t undermine the SAR Regime by discouraging masters. * As amended, effective 2006. Allen: Rescue Duties under Int'l Law

Ship masters complain that they are sometimes directed by an RCC to 7/5/2019 SOLAS Regulation V/33 2. The master of a ship in distress or the search and rescue service concerned, after consultation, so far as may be possible, with the masters of ships which answer the distress alert, has the right to requisition one or more of those ships as the master of the ship in distress or the search and rescue service considers best able to render assistance, and it shall be the duty of the master or masters of the ship or ships requisitioned to comply with the requisition by continuing to proceed with all speed to the assistance of persons in distress. Ship masters complain that they are sometimes directed by an RCC to surveil migrant vessels that are not in distress, resulting in significant delays. Allen: Rescue Duties under Int'l Law

7/5/2019 SOLAS Regulation V/33* 3. Masters of ships shall be released from the obligation imposed by paragraph 1 on learning that their ships have not been requisitioned and that one or more other ships have been requisitioned and are complying with the requisition. This decision shall, if possible be communicated to the other requisitioned ships and to the search and rescue service. 4. The master of a ship shall be released from the obligation imposed by paragraph 1 and, if his ship has been requisitioned, from the obligation imposed by paragraph 2 on being informed by the persons in distress or by the search and rescue service or by the master of another ship which has reached such persons that assistance is no longer necessary. See also SAR Convention ¶ 3.1.9. Allen: Rescue Duties under Int'l Law

1989 Salvage Convention Article 10: Duty to render assistance 7/5/2019 1989 Salvage Convention Article 10: Duty to render assistance 1. Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea. 2. The States Parties shall adopt the measures necessary to enforce the duty set out in paragraph 1. 3. The owner of the vessel shall incur no liability for a breach of the duty of the master under paragraph 1. Allen: Rescue Duties under Int'l Law

7/5/2019 International Convention on Maritime Search & Rescue (“SAR Convention”) Completed in 1979, entered into force in 1985. 105 states-parties representing 82% of vessels. Article III: Amendments: III(f): Selected provisions are subject to amendment by Tacit Acceptance (however, states that object to the amendment are not bound. See Art. III(h)). III(e): Other amendments require approval by 2/3 of states-parties. The SAR Convention’s details are in the Convention’s Annex. Convention must be applied in conjunction with the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual. Allen: Rescue Duties under Int'l Law

SAR Convention 2006 Amendments* 7/5/2019 SAR Convention 2006 Amendments* Chapter 3: new paragraph 3.1.9 addresses cooperation relating to assistance to the master in delivering persons rescued at sea to a place of safety.** Chapter 4: new paragraph 4.8.5 relating to RCC’s process in identifying the most appropriate place from disembarking persons found in distress at sea. Did not attempt to define “distress” or address problems of self-inflicted distress. Concern here: Is SRR state was obliged to disembark it would encourage illegal migrations. Rescue is defined in the SAR Convention to include retrieving persons in distress, providing for immediate medical and other needs and delivering them to a place of safety. Intent of the Regulations is “to ensure that in every case a place of safety is provided w/n a reasonable time. See MSC 78/26/Add.2, Annex 34. While there is a sacrosanct duty to rescue those in distress in sea there is as yet no corresponding duty to receive the rescuees. The EU acknowledges there is no “default” state where rescuees will be received. None of the conventions define “place of safety.” Some argue it could be a ship. The Guidelines say it’s a place where survivor’s safety is no longer endangered and their basic human needs can be met and where transportation arrangements can be made to their next or final destination. *See IMO Res. MSC.155(78) (2004). ** See ¶¶ 6.12-6.18 of IMO Res. MSC.167(78) (place of safety). Allen: Rescue Duties under Int'l Law

7/5/2019 SAR Convention Annex ¶ 2.1.1 Parties shall, as they are able to do so individually or in co-operation with other States and, as appropriate, with the Organization, participate in the development of search and rescue services to ensure that assistance is rendered to any person in distress at sea. (cont.) On receiving information that any person is, or appears to be, in distress at sea, the responsible authorities of a Party shall take urgent steps to ensure that the necessary assistance is provided. ¶ 2.1.10: They shall do so regardless of the status of such a person or the circumstances in which that person is found. This provision may be amended by Tacit Acceptance. See Art. III(f). Allen: Rescue Duties under Int'l Law

Mediterranean Search and Rescue Regions (SRR’s) 7/5/2019 Mediterranean Search and Rescue Regions (SRR’s) IMO divided world into 13 SAR Areas, within which states establish SRR States establish SRR’s by Agreement. Malta’s SRR = 250,000 sq KM SRR: An area of defined dimensions associated with an RCC, within which SAR services are provided. Allen: Rescue Duties under Int'l Law

7/5/2019 SAR Convention Annex 3.1.9: Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships´ intended voyage, provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea. ¶ 3.1.9 was added to the Annex by tacit acceptance procedure. See also SOLAS Regulation V/33.3, & .4 (parallel provision). Allen: Rescue Duties under Int'l Law

7/5/2019 SAR Convention Annex 3.1.9. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs,* so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the [International Maritime] Organization. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable. What if no disembarkation agreement is reached? The Guidelines state: “The 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.” See Guidelines on the Treatment of Persons Rescued at Sea, Res. MSC.167(78) (2004): “¶2.5: The 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.” [Note: this is only a Guideline]. Allen: Rescue Duties under Int'l Law

Potential Places of Disembarkation Port in the flag state of rescuing vessel. Closest port to place of rescue. Rescuing vessel’s next port of call or other port selected by rescuing vessel’s master. Port where rescued persons embarked or state of origin. Port preferred by rescued persons. Port in state responsible for SRR where rescue took place. Port designated by the SRR state, exercising its “primary responsibility” under SAR Annex ¶ 3.1.9. Other state acting in “co-ordination” and “co-operation” with rescuing states, following SRR-led process in SAR Annex ¶ 4.8.5. Port pre-designated by prior regional agreement (in conjunction with processing and resettlement agreement). Must be a “place of safety.”