1. Introduction
Rendering assistance to ships in distress is a long-standing rule of custom, which was codified as early as 1910 and has since been incorporated into several law of the sea instruments.Footnote 1 The ‘universal duty to rescue at sea has existed since time immemorial’Footnote 2 and is founded on the principle of solidarity.Footnote 3 With the number of people at sea rising, the duty to render assistance has become more demanding and controversial for States and shipmasters alike.Footnote 4 Complexities arise primarily from the increasing demand for search-and-rescue (SAR) operations for migrants and refugees in danger of being lost at sea.Footnote 5 Throughout history, people fleeing war and persecution have used the sea as an escape route,Footnote 6 but seaborne migration has dramatically increased over recent decades across many regions of the world.Footnote 7 This humanitarian crisis has not been dealt with by more and better-planned SAR operations. On the contrary, States have implemented strict border control measures to keep migrants out of their territory at all costs.Footnote 8 Interceptions, pushbacks and limited SAR services have been frequently reported.Footnote 9
The extent to which these practices comply with international law has justifiably triggered heated discussion.Footnote 10 This article contributes to this topical debate by advocating the need for a human rights-oriented approach to maritime SAR. This approach is justified on two grounds. First, it is well established that migrants may face severe human rights violations while crossing the sea, as a result of both the brutal acts of smugglers and the law enforcement operations of States.Footnote 11 During SAR operations, migrants may be ill-treated, drown, go missing or be forced to return to countries where they face torture or other human rights violations.Footnote 12 Second, despite the lack of human rights obligations for States in the law of the sea instruments containing the duty to render assistance, it is widely accepted that States are bound by their human rights obligations when they operate at sea, including in SAR operations.Footnote 13
Accordingly, this article fleshes out and systematises the human rights obligations of States during maritime SAR operations. In doing so, Section 2 discusses the nature of the duty to render assistance and explains the obligations of States and shipmasters under international law. Section 3 addresses the issue of jurisdiction. Understanding the scope of States’ human rights jurisdiction is an essential prerequisite for applying human rights law in SAR operations. The subsequent sections delve into the substantive aspects of the duty to render assistance in a human rights-compliant fashion, explaining when the duty to render assistance is triggered (Section 4), how it should be discharged (Section 5) and when it terminates (Section 6). Due to the growing attention paid to the SAR of migrants, the article predominantly draws on this type of State practice. However, the findings of the article are of relevance to all ships in distress and offer practical guidance to all those involved in maritime SAR.
2. The nature of the duty to render assistance
The duty to render assistance to persons in distress ‘exists throughout the ocean, whether in the territorial sea, in straits used for international navigation, in archipelagic waters, in the exclusive economic zone or on the high seas’.Footnote 14 It applies to all ships, including private ships and warships, and to all persons in distress regardless of their nationality or status.Footnote 15 The fact that a person in distress is involved in an unlawful activity does not alter the obligation of States to render assistance.Footnote 16 Thus, States are required to render assistance to smugglers and irregular migrants with no exception.
The duty to render assistance binds flag States and coastal States, but under Article 98(1) of the United Nations (UN) Convention on the Law of the Sea (LOSC), the responsibility to rescue persons in distress lies primarily with shipmasters.Footnote 17 The provision states that:
Flag States 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; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.Footnote 18
In light of this provision, flag States have to take necessary and appropriate measures to ensure that vessels that fly their flag render assistance to persons in distress, but they are not under an obligation to guarantee that all persons in distress are rescued.Footnote 19 This means that the duty to render assistance is of a due diligence nature. A due diligence duty:
entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party.Footnote 20
Accordingly, flag States are required to adopt relevant laws and monitor their implementation. Similarly, Article 98(2) LOSC requires coastal States to ‘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 neighbouring States for this purpose’.Footnote 21 The choice of the word ‘promote’ suggests a due diligence obligation that requires coastal States to establish cooperation and coordination mechanisms in SAR, but not a duty to rescue every person in distress.Footnote 22 The same conclusion can be drawn from the International Convention on Maritime Search and Rescue (SAR Convention) that establishes a comprehensive SAR system, requiring States to designate a search and rescue region (SRR), develop effective and well-organised SAR services and cooperate with neighbouring States whenever necessary, but without imposing on them an obligation of result.Footnote 23 A due diligence duty, however, ‘may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough’.Footnote 24 Considering the sharp rise in ships in distress, the SAR services that certain coastal States have in place may have to be reconsidered to respond to contemporary needs.
While the duty to render assistance has been developed within the law of the sea framework, increasing attention has been paid to its relationship with the right to life.Footnote 25 Trevisanut has pointed out that ‘the duty to render assistance [is] an operative tool for the implementation of the right to life at sea; it is the corollary obligation of the right to life at sea’.Footnote 26 The efforts to understand the duty to render assistance in human rights terms have found fertile ground not only in the ongoing debate on the applicability of human rights law at sea, but also in the views of the UN Human Rights Committee (HRC).Footnote 27 In General Comment No 36, the HRC explained that the duty of States to protect the right to life includes ‘those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea’.Footnote 28 The HRC took its views further in a complaint brought against Malta and Italy concerning a shipwreck that occurred 113 kilometres south of Lampedusa, causing the deaths of more than 200 people. In its decision, the HRC reaffirmed that a failure to render assistance to persons in distress may amount to a violation of the right to life.Footnote 29 It is clear that the HRC considers that the obligation to protect the right to life at sea constitutes a due diligence obligation.Footnote 30 In human rights terms, this has been interpreted to impose an obligation on States to take reasonable, positive measures to protect the right to life at sea, without imposing a disproportionate burden on them.Footnote 31 These measures include steps to prevent or put an end to ‘reasonably foreseeable threats to life originating from private persons and entities whose conduct is not attributable to the State’.Footnote 32 Ergo, States have to render assistance to all persons in distress regardless of how they came to be in such a situation, including where people embarking on adventurous journeys have made an error of judgment, and situations involving unlawful acts, such as those of migrant smugglers.
The European Court of Human Rights (ECtHR) has also held that the duty to safeguard the right to life may include the provision of air–sea rescue facilities to assist those in distress depending on the circumstances.Footnote 33 It has further clarified that this obligation is one of means and not of result. Thus, States are required to ‘take preventive operational measures to avoid a real and immediate risk to life of which [they] had or ought to have had knowledge, while bearing in mind that State agents cannot be expected to succeed in rescuing every person in a situation of danger’.Footnote 34 In Safi v Greece, which concerned the sinking of a migrant boat that caused the deaths of 11 people near the Greek island of Farmakonisi in the Aegean Sea, the ECtHR held that the operational choices of the Greek authorities should be evaluated in light of the difficulties they face because of the high number of people who cross the Aegean Sea into Greece.Footnote 35
3. Human rights jurisdiction in maritime SAR
Having discussed the nature of the duty of States to render assistance to persons in distress, the question of when States have human rights jurisdiction over persons in distress should now be examined. The existence of jurisdiction is an essential prerequisite for applying human rights law in SAR operations. Nonetheless, the question of jurisdiction in SAR is not an easy one to answer. Legal complexities arise from the different applicable legal frameworks as well as the various actors involved in SAR. This section untangles the complex jurisdictional seascape and determines when States have human rights obligations in SAR.
Under the international law of the sea, the oceans are divided into maritime zones in which States are granted specific rights and powers and bear specific duties. Accordingly, the location of an incident is a key determinant of which State is responsible for enforcing human rights,Footnote 36 given that coastal States enjoy sovereignty over their internal waters and territorial sea.Footnote 37 Under international human rights law, States have to protect human rights within their territory.Footnote 38 As a result, States have a duty to have SAR services readily available to render assistance to persons in distress within their internal waters and their territorial sea under both the international law of the sea and human rights law. This duty also applies in internal waters and the territorial sea of States bordering international straits.Footnote 39
Internal waters of a maritime character include navigable rivers;Footnote 40 thus, SAR services should be readily available there too. Navigable boundary rivers are used by migrants to cross from one country into another and, despite a lack of data, there is evidence that migrants often drown in rivers.Footnote 41 However, little attention has been paid to the duty of States to render assistance to persons at risk of drowning in rivers. The delimitation of the outer limit of boundary rivers, the regulation of navigation and other safety-related matters are dealt with by bilateral agreements or river commissions,Footnote 42 but it may not always be clear which of the riparian States is responsible for providing SAR services. An example is the River Evros, a natural border that separates Bulgaria, Greece and Türkiye. Smugglers have used it to transfer migrants from Türkiye into the European Union (EU). Migrants are sometimes left on river islets or in demilitarised zones, with none of the riparian States willing to undertake responsibility for rescuing them.Footnote 43 A further obstacle is that States often build fences along boundary rivers, refusing to rescue persons at risk of drowning.Footnote 44 In such cases, it is beyond doubt that persons in distress are within the jurisdiction of a riparian State who should render assistance in a human rights-compliant fashion.
While coastal States are clearly under an obligation to respect human rights in relation to their territorial seas and internal waters, their obligation in relation to their contiguous zone, exclusive economic zone (EEZ) and continental shelf is less clear. They may have human rights jurisdiction to a limited extent in accordance with the powers that they are granted by the LOSC within these maritime zones.Footnote 45 One example is the jurisdiction that coastal States exercise over artificial islands, installations and structures built in their EEZ or continental shelf, which includes a surrounding 500-metre safety zone.Footnote 46 In these areas, coastal States exercise exclusive jurisdiction over various matters such as health, safety and immigration and should also be held responsible for enforcing human rights.Footnote 47 Accordingly, coastal States are primarily responsible for rendering assistance to persons in distress in safety zones and must do so while upholding their human rights.
Human rights jurisdiction is more complicated in relation to the high seas. Under the LOSC, the jurisdiction of coastal States does not extend to the high seas and, consequently, nor do their human rights obligations.Footnote 48 This is confirmed in the SAR Convention, which states that:
Nothing in the Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to resolution 2750 (XXV) of the General Assembly of the United Nations nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.Footnote 49
For that reason, SRRs are not zones of jurisdiction but rather ‘delimited areas of ocean space where State parties must ensure cooperation and coordination of SAR activities’.Footnote 50 Notably, the SRRs of coastal States extend well beyond their territorial sea and into the high seas. Under the international law of the sea, the duty to render assistance requires no nexus of jurisdiction between coastal States or shipmasters and the persons they are asked to rescue.Footnote 51 However, human rights violations frequently occur during SAR operations. An additional layer of complexity is added by the fact that human rights violations may occur because of the failure of States to conduct a SAR operation. It is thus critical to understand which State has human rights jurisdiction over persons in distress in SRRs. While it is difficult to cover all possible actions or omissions of States in the context of maritime SAR, several typical scenarios are examined in the rest of Section 3 in order to determine where jurisdiction lies.Footnote 52
3.1. Jurisdiction of the rescuing State during the conduct of a SAR operation
The first scenario examined is where a State responds to a distress call and a State rescuing unit reaches a ship in distress to provide assistance. In this case, the effective control test applies.Footnote 53 According to this test, a State remains bound by its human rights obligations extraterritorially where it exercises de facto effective control over persons at sea.Footnote 54 The application of the test requires some form of physical contact between the State agents and the persons at sea, or at least some form of control exercised by the State agents over those in distress.Footnote 55 In the SAR context, the requirements of this test are met once a unit of the rescuing State reaches the ship in distress and takes control of the situation, whether by giving verbal orders, using force, rescuing people, treating the injured or towing the vessel.Footnote 56 Papastavridis has argued that human rights jurisdiction is triggered as soon as ‘the on scene [commander] has arrived at the area [of the vessel in distress]’.Footnote 57 In this scenario, the effective control test applies regardless of whether the rescuing State operates in its SRR, the SRR of another State or a part of the high seas not encompassed by a SRR.
3.2. Jurisdiction of the flag State over rescued persons on board the rescue ship
Once the persons in distress have been rescued and boarded on a rescue ship, they fall within the jurisdiction of the flag State. The HRC has underlined that ‘States parties are … required to respect and protect the lives of all individuals located on marine vessels and aircraft registered by them or flying their flag’.Footnote 58 The ECtHR has also held that flag States have to enforce human rights standards on board ships that fly their flag.Footnote 59 In Hirsi Jamaa v Italy, the ECtHR ruled that ‘Italy cannot circumvent its “jurisdiction” under the Convention by describing the events in issue as rescue operations on the high seas’ and found Italy to have jurisdiction over the migrants who had been intercepted and returned to Libya.Footnote 60 These findings are in line with the duty of flag States under the LOSC. Pursuant to Article 92 LOSC, ships sailing on the high seas are under the exclusive jurisdiction of the flag State, save for in exceptional circumstances.Footnote 61 Article 94 adds that ‘[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’.Footnote 62 Social matters include human rights.Footnote 63
3.3. Jurisdiction of the coastal State within its SRR
As previously noted, SRRs are not zones of jurisdiction under the international law of the sea and the application of the human rights laws of coastal States extends within their SRRs only when they conduct SAR operations. In a surprising decision in A.S., D.I., O.I. and G.D. v Malta, the HRC concluded that a coastal State exercises effective control over persons within its SRR, departing from previous rules of jurisdiction. It noted that:
in the present case it is undisputed that the vessel in distress was located in the search and rescue area for which the State party authorities undertook responsibility to provide for overall coordination of search and rescue operations, in accordance with section 2.1.9 of the International Convention on Maritime Search and Rescue, 1979, and chapter V, regulation 33, of the International Convention for the Safety of Life at Sea, 1974. It further notes that it is undisputed that the State party authorities formally accepted to assume the coordination of the rescue efforts at 2.35 p.m. on the day of the shipwreck. The Committee therefore considers that the State party exercised effective control over the rescue operation, potentially resulting in a direct and reasonably foreseeable causal relationship between the States parties’ acts and omissions and the outcome of the operation.Footnote 64
The HRC seems to argue that Malta exercised de jure control over persons in distress on the basis of the legal obligations it carries under the international law of the sea to assume responsibility for the coordination of SAR operations.Footnote 65 In the case at hand, the coastal State, Malta, requested assistance from Italy who conducted the SAR operation.Footnote 66 The findings of the HRC suggest that a coastal State may be found to have human rights jurisdiction over persons in distress within its SRR even if another State conducts the SAR operation, without excluding the possibility of concurrent jurisdiction between the two States.Footnote 67
In practice, the broad interpretation of effective control by the HRC may force States to take a more responsible stance in their SRRs, for example, by relinquishing parts of their SRRs that they cannot manage or by better equipping themselves to meet their SAR obligations.Footnote 68 It may also encourage States to resolve disputes concerning overlapping SRRs where delays are often caused by the confusion as to which State is responsible to respond to a distress call.Footnote 69 Such a broad interpretation may also have far-reaching effects in practice as it suggests that any person found within the SRR of a coastal State falls within its jurisdiction for the purposes of human rights. It also ignores the fact that coastal States may be required to coordinate rescue efforts, but they cannot compel third States or private vessels to respond to their requests for assistance.
It is the view of the author that the HRC did not intend to extend human rights jurisdiction extraterritorially, but by equating the duty of a State to coordinate rescue efforts within its SRR with the duty to protect the right to life, it did just that. Although it was a remarkable attempt to interpret human rights obligations in light of the law of the sea—an approach that reflects an emerging trend in the debate on the protection of human rights at sea— the HRC's conclusion does not facilitate the harmonious application of the law of the sea and human rights law.Footnote 70 On the contrary, it risks being counterproductive as it conflates the notions of jurisdiction under the law of the sea and human rights law.Footnote 71 Zimmermann, one of the dissenting members of the HRC, underlined that ‘the notion of jurisdiction in human rights treaties is not tantamount to the concept of jurisdiction to prescribe provided for [under the international law of the sea]’,Footnote 72 and by turning a violation of the law of the sea into a human rights violation, there is a risk that States might become more reluctant to render assistance to ships in distress.Footnote 73
3.4. Jurisdiction of a State when failing to respond to a distress call in the SRR of another State or on the high seas
The HRC took its findings further by finding Italy in breach of Article 6 of the International Covenant on Civil and Political Rights (ICCPR) because of its failure to render assistance to persons in distress in the Maltese SRR. In A.S., D.I., O.I. and G.D. v Italy, the applicants complained that they alerted the Maritime Rescue Coordination Centre (MRCC) in Rome that the vessel was going to sink and forwarded the coordinates to the Italian operator. Italy took no action other than informing Malta, who was responsible for the SRR in which the incident took place, and even ordered one of its navy ships, the ITS Libra, to move away from the ship in distress. By the time Italy agreed to order the ITS Libra to provide assistance and the latter reached the site, the ship in distress had already capsized. In finding a violation of Article 6 ICCPR, the HRC argued that:
a special relationship of dependency had been established between the individuals on the vessel in distress and Italy. This relationship comprised of factual elements – in particular, the initial contact made by the vessel in distress with the MRCC, the close proximity of ITS Libra to the vessel in distress and the ongoing involvement of the MRCC in the rescue operation and – as well as relevant legal obligations incurred by Italy under the international law of the sea, including a duty to respond in a reasonable manner to calls of distress pursuant to SOLAS [International Convention for the Safety of Life at Sea] Regulations and a duty to appropriately cooperate with other states undertaking rescue operations pursuant to the International Convention on Maritime Search and Rescue. As a result, the Committee considers that the individuals on the vessel in distress were directly affected by the decisions taken by the Italian authorities in a manner that was reasonably foreseeable in light of the relevant legal obligations of Italy, and that they were thus subject to Italy's jurisdiction for the purposes of the Covenant, notwithstanding the fact that they were within the Maltese search and rescue region and thus also subject concurrently to the jurisdiction of Malta.Footnote 74
The HRC's interpretation of the rules of jurisdiction reflects a progressive approach that aims to consider the contemporary realities of SAR. It primarily seeks to address the practice where States avoid coming into contact with ships in distress carrying migrants to avoid being considered to have human rights jurisdiction over them.Footnote 75 An overly expansive interpretation of extraterritorial jurisdiction, however, warrants caution. Dissenting members of the HRC stated that:
the majority Views fails to distinguish between situations in which states have the potential to place under their effective control individuals who are found outside their territory or areas already subject to their effective control, and situations involving the actual placement of individuals under effective state control.Footnote 76
Indeed, one could validly question how realistic it is to find that a State acquires jurisdiction over persons in distress merely by answering a distress call, or not answering it on time, or by ignoring it altogether, especially where a distress call concerns an incident in the SRR of another coastal State.Footnote 77
Nonetheless, there seem to be two key factors that influenced the decision of the HRC and the way it justified the ‘special relationship of dependency’ between Italy and those in distress. These factors should be carefully considered in order to inform future SAR operations. The first concerns the fact that loss of life was reasonably foreseeable given Italy's acts and omissions. This finding aligns with the HRC's interpretation of Article 6 ICCPR that ‘the obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life’.Footnote 78 The ECtHR has also held that a violation of the right to life can be found if it is established that:
the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.Footnote 79
States are obliged to take reasonable measures to protect the right to life even if these measures cannot guarantee a change in the course of events.Footnote 80 In the context of maritime SAR, it should be reasonably foreseeable that failing to render assistance to persons in distress seriously threatens their right to life. States are therefore bound to take positive steps to rescue those in distress regardless of whether their efforts are likely to be successful or not.
The second factor emphasised by the HRC was the ‘close proximity’ of the ITS Libra to the ship in distress. ‘Proximity’ lacks sufficient clarity to be considered as a standalone criterion in future cases, given questions such as how close a rescue unit should be, and how distance at sea is measured. Nonetheless, the Italian warship's proximity to the distress site was a sufficient indicator of Italy's capability to take reasonable measures to protect the right to life of the persons in distress.Footnote 81 Put simply, where States have the capacity to render assistance to persons in distress, they should do so or otherwise risk being in breach of their duty to protect the right to life. The combination of these two criteria—knowledge of the distress situation and capacity to render assistance—may prove helpful in addressing similar jurisdictional questions in the context of SAR.
One such scenario may arise where States use aerial maritime autonomous vehicles for detecting boats carrying migrants and monitoring their routes and condition.Footnote 82 The use of drones meets the ‘knowledge requirement’ as it enables States to know whether migrants are at risk of drowning as well as their exact location. This on its own is not enough to trigger jurisdiction as States also need to be capable of rendering assistance to ships in distress. Drones may be used to drop lifesaving equipment, medicine or other supplies but, in most cases, they are not able to rescue a large number of persons in distress.Footnote 83 In such cases, States are required to mobilise appropriate rescue units.Footnote 84 Where this is not possible, States are still expected to take other reasonable measures to rescue persons in distress, such as by requesting the help of private ships or neighbouring States.
3.5. Jurisdiction where States cooperate with other States or private actors
Cooperation to provide effective SAR services is a key requirement under the SAR Convention, but in practice it may further complicate jurisdiction.Footnote 85 One possible scenario is where a State becomes aware of a ship in distress in the SRR of another State or in a part of the high seas not encompassed by a SRR, and transmits the coordinates of the ship in distress to the coastal State in charge of the SRR or nearby ships. Does the State that shares the relevant information have jurisdiction over those in distress who may be subjected to human rights violations by the rescuing State? Based on the existing rules of jurisdiction, this question should be answered in the negative. The application of the existing rules points to the human rights jurisdiction of the State conducting the operation or at least assuming the coordination of the rescue efforts within its SRR.Footnote 86
The unique situation in the Mediterranean, however, shows that these rules may not be sufficient to uphold human rights in SAR operations. More specifically, challenges arise from cooperation between Italy, Malta and Libya.Footnote 87 Since 2017, when Libya notified the International Maritime Organization (IMO) of the extension of its SRR to 94 nautical miles off its coasts, many distress calls to the Maltese or Italian MRCCs have been diverted to the Libyan Coast Guard (LCG).Footnote 88 Their cooperation efforts appear to be aligned with the obligations that States have under the SAR Convention. However, the return of migrants to Libya raises serious human rights concerns as violence by LCG agents during SAR operations has been widely reported and migrants are subjected to severe human rights violations, including torture, once returned to Libya.Footnote 89 This raises the question of whether Italy or Malta should be considered to have jurisdiction over persons in distress rescued by the LCG and, as a result, be required to uphold their human rights. The existing rules of jurisdiction cannot capture the nuance of such a scenario. As previously noted, a phone call or the use of drones should not be considered sufficient to trigger extraterritorial jurisdiction, especially in the SRR of another State. In addition, Italy and Malta generally seem to take reasonable steps to render assistance by notifying other vessels in the vicinity of the ship in distress. Migrants may admittedly have a good chance of being rescued, but it is also highly likely that they will be subjected to other human rights violations once disembarked in Libya.
In response to these challenges, there have been efforts to reframe the rules of extraterritorial jurisdiction with regards to migration control at sea.Footnote 90 One of the proposed tests is based on remote or contactless control ‘exercised through remote management techniques and/or in cooperation with a local administration acting as a proxy’.Footnote 91 Moreno-Lax, one of the key proponents of this new jurisdictional approach, has argued that ‘[c]ontrol over (general) policy areas or (individual) tactical operations, performed or producing effects abroad … are the vehicles of the exercise of “public powers” that amounts to jurisdiction’.Footnote 92 In the present case, public powers refer to the provision of SAR services. This approach has been developed to support the case of S.S. v Italy, currently pending before the ECtHR.Footnote 93 The complaint concerns the rescue of migrants on the high seas by the LCG and the treatment of survivors thereafter. According to the applicants, when their boat started capsizing, they contacted the MRCC in Rome, which requested the help of ships transiting the area. A non-governmental organisation (NGO) vessel, the Sea Watch 3, and an LCG vessel, the Ras Al Jadar, responded to the request and reached the ship in distress. The applicants allege that the LCG did not help them and obstructed the NGO's rescue efforts. When the LCG finally rescued some of the persons in distress, it returned them to Libya where they were abused for over a month, following which they agreed to be repatriated to Nigeria to escape indefinite detention.
It is the view of the author that despite the justifiable efforts of the advocates of the ‘contactless control’ test to tackle injustice at sea, the test suffers certain limitations. First, it fails to distinguish between instances where States exercise remote control over SAR operations and instances in which they merely cooperate with other States as required by the international law of the sea. In the first instance, where the coastal State retains the overall control of an operation remotely, it would be reasonable to argue that it exercises effective control over a SAR operation.Footnote 94 This could be the case for every SAR operation in which a coastal State orders a private ship or a ship in public service to conduct a SAR operation under its own instructions or orders the disembarkation of those rescued in a specific place.Footnote 95 For example, coastal States should be considered to have jurisdiction over survivors who are taken back to Libya under their instructions and be held responsible for any associated human rights violations. Flag States could be found to have concurrent jurisdiction in such instances.Footnote 96 Arguably, coastal States also exercise remote control when utilising drones to locate persons in distress and ordering other ships to return them to a location where their human rights are violated.Footnote 97 It is hard, however, to argue that a coastal State has jurisdiction over persons in distress in a part of the high seas that does not form part of its SRR, or the SRR of another State, merely by cooperating with or notifying a foreign flagged vessel or a neighbouring State of a distress call. The ECtHR may reach a different conclusion but, at the time of writing, the Court does not seem willing to establish new tests for jurisdiction.Footnote 98
The ‘contactless control’ test has been designed to respond to migration control in general and to migrants returned to Libya, in particular, bearing in mind the support that Italy and Malta (with EU funds) have been providing to Libya.Footnote 99 However, the solution is not to come up with expansive rules of jurisdiction, rules tailored to apply to migration control or rules with geographic limitations, all of which risk complicating the jurisdiction seascape and may be hard for international courts or other States outside of the Council of Europe to accept.Footnote 100 A more viable alternative would be to require all States to improve their compliance with human rights obligations in SAR from the time a ship is in distress through to disembarkation, as shown in the following sections.
4. When is the duty to render assistance triggered?
Having addressed the question of when a State has jurisdiction for human rights purposes in the SAR context, an examination of how the duty to render assistance should be discharged in line with international law is necessary. The first query is when the duty to render assistance arises. None of the instruments codifying the duty to render assistance specifies when this duty is triggered. The SAR Convention defines the ‘distress phase’ as ‘[a] situation wherein there is a reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance’.Footnote 101 It further notes that the distress phase starts:
[w]hen positive information is received that a vessel or a person is in grave and imminent danger and in need of immediate assistance; or [w]hen, following the alert phase, further unsuccessful attempts to establish contact with the vessel and more widespread unsuccessful inquiries point to the probability that the vessel is in distress; or [w]hen information is received which indicates that the operating efficiency of a vessel has been impaired to the extent that a distress situation is likely.Footnote 102
The International Law Commission has stated that ‘a situation of distress, … … may at most include a situation of serious danger, but not necessarily one that jeopardizes the very existence of the persons concerned’.Footnote 103 This reflects an earlier interpretation of distress, according to which:
a ship floundering in distress, resulting either from the weather or from other causes affecting the management of the vessel, need not be in such a condition that it is dashed helplessly on the shore or against rocks before a claim of distress can properly be invoked on its behalf.Footnote 104
Essentially, the definition of distress consists of two criteria, namely, the gravity and imminence of danger. States and shipmasters evaluate these criteria on the basis of the relevant factual circumstances and determine whether or not it is reasonable to intervene.
However, certain States take a strict interpretative approach to the meaning of distress when it comes to ships carrying migrants, claiming that if a ship is not sinking, she is not in distress.Footnote 105 In the Tampa incident, for example, in which a Norwegian ship rescued migrants in distress in international waters and sought to disembark them in Australia, the captain argued that the ship was in distress because it carried critically ill people and, with the rescued migrants on board, the vessel was no longer compliant with the International Convention for the Safety of Life at Sea (SOLAS).Footnote 106 Australia, on the other hand, considered that the rescue had been completed once the migrants boarded the Tampa and that ‘[t]he urgent circumstances which give rise to the rescue no longer exist[ed].Footnote 107 Such a strict interpretation of ‘distress’ ignores the overall condition of a ship, such as its seaworthiness, the number of persons on board, their medical needs, a potential lack of trained crew or safety equipment and the sanitary conditions, factors which may cumulatively lead to the conclusion that a ship is in distress.
To avoid discrepancies in the practice of Member States, the EU has listed several criteria that should be considered when determining whether a vessel is in distress, such as:
(1) the existence of a request for assistance, although such a request shall not be the sole factor for determining the existence of a distress situation;
(2) the seaworthiness of the vessel and the likelihood that the vessel will not reach its final destination;
(3) the number of persons on board in relation to the type and condition of the vessel;
(4) the availability of necessary supplies such as fuel, water and food to reach a shore;
(5) the presence of qualified crew and command of the vessel;
(6) the availability and capability of safety, navigation and communication equipment;
(7) the presence of persons on board in urgent need of medical assistance;
(8) the presence of deceased persons on board;
(9) the presence of pregnant women or of children on board;
(10) the weather and sea conditions, including weather and marine forecasts.Footnote 108
However, State practice within the EU continues to vary as most of these criteria remain subject to the interpretation of State authorities. For example, the likelihood of a vessel reaching its destination is speculative unless combined with other criteria, such as the seaworthiness of the ship, the weather conditions or the number of persons on board. Other criteria, such as the presence of pregnant women and children on board, leave no room for interpretation. In practice, however, the mere presence of pregnant women and children is usually not enough for a ship to be treated as being in distress. The EU Border and Coast Guard Agency, Frontex, has also taken a strict approach when evaluating whether a ship is in distress. Whereas Frontex is not mandated to decide when a SAR operation should begin, it may issue a Mayday alert when a ship is in distress.Footnote 109 This happens in:
situations of impending death on board (e.g. people are seen in water, ship is sinking, there's a fire on board), but also situations of significant uncertainty and high likelihood that people may die in the context of hours (e.g. boats found adrift, when night is falling, [the Frontex Surveillance Aircraft] has to leave the scene and there is no certainty that [the vessel in distress] will be found again later).Footnote 110
Understanding when a ship is in distress is absolutely essential at an operational level. The 2004 IMO Guidelines on the Treatment of Persons at Sea (IMO Guidelines) point out that ‘shipmasters should understand and heed obligations under international law to assist persons in distress at sea’.Footnote 111 Having a common understanding of distress is important to enable shipmasters to understand not only when they should conduct a SAR operation, but also when they should refrain from intervening. The latter point is relevant as it may prevent States from using SAR as a pretext for intercepting vessels. There have been instances of Libyan agents intercepting overcrowded vessels not for the purpose of rescuing those in distress but for the purpose of extorting release fees from them.Footnote 112
A final but equally problematic scenario may arise when a ship is clearly in distress but the persons on board the ship do not accept assistance. What are States expected to do in such a scenario? Is the offer of food and water enough? Does the rescue unit have to stay in the vicinity of the ship in distress, and escort it until it enters another SRR or reaches its destination? Should the rescuing State intercept the ship to rescue those on board? The lack of a clear answer to such questions has allowed States to refrain from rendering assistance to ships in distress.Footnote 113 This is allegedly what happened in June 2023 when a ship sank off the coast of Pylos in the Peloponnese region of Greece. The Adriana was a fishing trawler that had started its journey from Libya to Italy with more than 700 migrants on board. It sank in international waters within the Greek SRR, causing the deaths of more than 600 people.Footnote 114 At the time of writing, the factual circumstances of the event are still under investigation but, according to the reports of the Hellenic Coast Guard (HCG), the captain of the Adriana refused assistance and informed the HCG that they wished to proceed to Italy.Footnote 115 Reportedly, the captain requested only food and water which was provided to them by a Maltese-flagged vessel in the vicinity because he refused any aid from the HCG.Footnote 116 The Adriana had clearly been in distress. The large number of people, including women and children, on board a fishing trawler that lacked safety equipment and was travelling in the deepest area of the Mediterranean in adverse weather conditions should have been more than enough to convince the HCG that a rescue operation was needed. Evidence has emerged that the Greek authorities mishandled the case, even if there was a refusal of assistance from the migrants.Footnote 117 The incident illustrates how States may absolve themselves from the responsibility of rescuing migrants because of a lack of common understanding as to when a ship is in distress.Footnote 118 Malta has also taken advantage of this legal gap. It has been reported that when Maltese authorities have encountered boats carrying migrants within the Maltese SRR, they have not rescued them, even in situations where the boat has been in distress. Instead, they have provided food, water and fuel and allowed or encouraged them to continue their voyage to Italy.Footnote 119
In light of this discussion, it is clear that the lack of a common understanding of what constitutes distress permits inconsistent responses by States. However, strictly defining distress may not provide a desirable solution either.Footnote 120 There is a need for captains and rescue commanders to retain some operational flexibility as they are best placed to decide when a rescue operation is needed and what risks such an operation entails for the safety of their own ship as well as the ship in distress. It is therefore argued that a human rights-oriented approach to SAR should meet two requirements. The first is that a distress call should be responded to as soon as possible because this allows States and shipmasters to evaluate better whether a ship is in distress and what further rescue steps should be taken. Second, determining whether a ship is in distress should not be based merely on technical considerations such as the weather or the characteristics of a ship, but should primarily be focused on the needs of those on board, such as the presence of critically ill persons or pregnant women and children, who typically have little chance of surviving the sinking of a boat.Footnote 121
5. How should a human rights-compliant SAR operation be planned and conducted?
As noted above, the duty to render assistance is a due diligence obligation.Footnote 122 The extent to which a rescue operation complies with international human rights law is assessed on the basis of the means that a State employs to rescue persons in distress. The jurisprudence of the ECtHR provides helpful guidance on what States ought to bear in mind when conducting a rescue operation. Specifically, it has held that where a State conducts a rescue operation that may result in the death of one or more individuals, the authorities have to plan and control the operation with a view to ensuring that any risk to life is minimised and that they are not negligent in their choice of action.Footnote 123 The planning and conduct of a rescue operation are subject to high scrutiny and the ECtHR may evaluate the measures that a State takes to prevent loss of life, rescue persons in danger, evacuate them safely and provide them with medical aid wherever necessary.Footnote 124 In Alhowais v Hungary, which concerned, inter alia, the death of a migrant who tried to cross the River Tisza at the border between Serbia and Hungary on a boat, the ECtHR placed emphasis on the fact that the Hungarian authorities were aware that the river had become a dangerous crossing point for migrants and were therefore expected to take positive measures to rescue those in danger.Footnote 125 In Safi v Greece, the ECtHR noted that while Greece was aware of the condition of the ship in distress, the adverse weather conditions and the fact that there were women and children on board, it failed to plan and conduct an appropriate SAR operation, in violation of the right to life.Footnote 126 The violation was attributed to a series of failings on behalf of Greece, including the fact that Greece did not use an appropriate rescue unit but instead opted for a speedboat that had neither space for the safe transfer of migrants nor safety equipment.Footnote 127 The ECtHR also found that Greece had not considered requesting additional assistance or sending a more suitable vessel to the scene, had not provided the persons in distress with lifesaving equipment, such as lifejackets, and had failed to consider the reaction of the migrants who started panicking, risking the sinking of the boat.Footnote 128 The case demonstrates that States must carefully plan a SAR operation bearing in mind several crucial factors, such as the weather and the number of persons in distress, and have in place appropriate rescue units and equipment to conduct the operation. In addition, States are required to have appropriate evacuation plans in place and readily available medical aid.Footnote 129 Designated SAR units should be equipped with medical supplies and first aid, and those in need of urgent medical assistance should be airlifted wherever possible.Footnote 130
The use of force is not envisaged during a SAR operation. States, however, may encounter resistance from smugglers or migrants who refuse aid, and force might be employed to protect the safety of the rescuers or others from the risk of drowning. The International Tribunal for the Law of the Sea (ITLOS) has examined the legality of the use of force under the law of the sea in relation to maritime law enforcement operations. A SAR operation is not a law enforcement operation, but it is worth noting that ITLOS has taken a strict approach in respect of the use of force at sea. It has held that:
the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.Footnote 131
The reference to considerations of humanity leaves no doubt that human rights safeguards apply when force is deployed at sea.Footnote 132 Under international human rights law, when an operation involves the use of force, State agents must accurately plan it in advance, including having medical aid in place, so as to minimise, to the greatest extent possible, recourse to lethal force and incidental loss of life.Footnote 133 Lethal force may be used only as a last resort and must be absolutely necessary in defence of persons from unlawful violence.Footnote 134 Although these criteria were developed in relation to operations on land, they should also apply at sea.Footnote 135
In the case of smugglers or migrants who refuse assistance, it has been argued that ‘the interception cannot fall within the SAR legal regime’.Footnote 136 Such a proposition entails the risk that States use resistance as a pretext for transforming SAR operations into law enforcement. States often use disproportionate force to intercept or push back migrant boats. An illustrative example is the deployment of Italian warships to prevent Albanian boats carrying migrants from entering Italy in the late 1990s. In 1997, the Italian ship Sibilla collided with the Kater I Rades that was carrying Albanian migrants.Footnote 137 It was later disclosed that initially Sibilla attempted to block Kater's propeller by throwing a cable in the water.Footnote 138 In a second attempt to divert her from her route, Sibilla engaged in ‘kinematics and interposition manoeuvres based on the harassment modalities used within the [North Atlantic Treaty Organization] framework’.Footnote 139 As Scovazzi has pointed out, the incident is ‘an egregious instance of how the stronger (a ship of the navy) can disregard the most fundamental rights of the weaker (a ship overcrowded with poor people hoping for a decent future)’.Footnote 140 This is certainly not an isolated example of State vessels abusing their powers to intercept boats carrying migrants, and thus SAR operations should not be allowed to turn into law enforcement operations, even when smugglers or migrants resist assistance. Only minimal force may be deployed, subject to the international law of the sea and human rights safeguards.
Finally, where life is lost during a rescue operation, States must investigate and establish the circumstances in which a person was killed or went missing and punish those responsible wherever appropriate.Footnote 141 The duty to investigate is one of means not of result.Footnote 142 This is an important qualification considering the challenges that States might encounter when they operate extraterritorially and in adverse sea conditions. Despite this, a human rights-compliant investigation must meet certain requirements, including being prompt, effective, thorough, independent, impartial and transparent through openness to the scrutiny of the general public, the victims and their families.Footnote 143 In Safi v Greece, the ECtHR noted that Greece had instituted criminal proceedings against the coastguards involved in the SAR operation. These proceedings could establish an accurate account of the facts that caused the deaths of migrants and could result in the prosecution of those responsible.Footnote 144 However, it went on to highlight a series of inadequacies, including problems of interpretation when victim statements were taken, limited collection of evidence, exclusion of the victims from the investigation and the lack of an adequate investigation into the victims’ allegations of pushbacks.Footnote 145
6. When does the duty to render assistance terminate?
A final limitation of the SAR legal regime that requires consideration is the lack of a clear indication as to where rescued migrants should be disembarked. Notably, it has been pointed out that there cannot exist a duty to rescue persons in distress without disembarking them on land.Footnote 146 Although there are multiple disembarkation options—including the next port of call, the closest port to where the SAR operation took place, the nearest port of the coastal State that is responsible for coordinating the SAR operation and a port of the rescuing vessel's flag State—no particular option has emerged as a customary obligation.Footnote 147
Following the Tampa incident, the IMO tried to alleviate the burden on shipmasters of keeping rescued migrants on board because of the refusal of coastal States to allow disembarkation. The relevant amendments to SOLAS urged States to coordinate and cooperate ‘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’.Footnote 148 In addition, SOLAS provides that States responsible for coordinating SAR have to ensure that survivors ‘are disembarked from the assisting ship and delivered to a place of safety’.Footnote 149 Furthermore, according to amendments to the SAR Convention:
[t]he 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 [IMO].Footnote 150
Although the amendments reinforce the point that there cannot be rescue without disembarkation, they have not brought about the desired result. During the negotiations for the drafting of the amendments, it was evident that disembarkation remained a sensitive issue for States.Footnote 151 Malta, for example, opposed proposals that sought to determine the ports of the State responsible for coordinating SAR as the appropriate place for disembarkation and has not adopted the amendments.Footnote 152 It has argued that, to determine the right place for disembarkation, the geographical realities have to be considered.Footnote 153 Given that Malta has a vast SRR, on many occasions an Italian port is the closest option for disembarkation and, thus, Malta argues that timely disembarkation may justify it being in a coastal State other than the one coordinating the SAR. Italy, on the other hand, adopted the amendments, and the disparity in the legal regime between the two neighbouring States has resulted in many standoffs where migrants are left stranded at sea for days.Footnote 154 The Italian courts have also reinforced that rescue generates a right to be disembarked,Footnote 155 but this is not always upheld in practice or is complied with in a superficial way that gives rise to further human rights concerns.Footnote 156 For the EU, the preferred place for disembarkation is ‘the third country from which the vessel is assumed to have departed’.Footnote 157 Australia's practice also shows that it prevents rescued migrants from ever reaching an Australian port, disembarking them at Christmas Island (an Australian external territory) or in third States such as Indonesia that are willing to receive them.Footnote 158
The implementation of the amendments remains problematic for another reason—they do not define what constitutes a ‘place of safety’. The IMO Guidelines do elaborate on the meaning of a ‘place of safety’, stating that it is ‘a location where rescue operations are considered to terminate. It is also a place 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’.Footnote 159 The Guidelines further state that ‘[a]n assisting ship should not be considered a place of safety based solely on the fact that the survivors are no longer in immediate danger once aboard the ship’.Footnote 160 However, the IMO Guidelines are not legally binding and the meaning of ‘place of safety’ remains open for discussion.
The definition of a ‘place of safety’ should not be discerned solely on the basis of the law of the sea. International refugee law and human rights law have well-established safeguards regarding the return of persons to third countries and these must be considered when States decide where to disembark those rescued at sea.Footnote 161 More specifically, the non-refoulement obligation entails that States cannot expel or return a refugee to a State where they face persecution.Footnote 162 Under human rights law, the principle of non-refoulement is protected through the prohibition of torture and inhuman or degrading treatment or punishment.Footnote 163 The ECtHR, for example, has firmly expressed that States cannot send a person to a country where they face a real risk of being subjected to treatment contrary to Article 3 of the European Convention on Human Rights.Footnote 164 This means that States are prohibited from disembarking rescued persons in countries where they face persecution or torture, or ordering private vessels to disembark them in such a country.Footnote 165 Along the same lines, the Italian courts have held that the actor who conducts a rescue operation is responsible for finding a safe place for disembarkation and that such a place cannot be where the principle of non-refoulment is violated or where those rescued may be subjected to human rights violations.Footnote 166 The IMO has also underlined ‘the need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened’.Footnote 167
In addition, it should be noted that the principle of non-refoulment and the prohibition of torture apply regardless of whether a State rescues persons within their territorial waters, at its borders or beyond.Footnote 168 In Hirsi Jamaa v Italy, where the Italian authorities intercepted boats carrying migrants on the high seas and returned them to Libya, the ECtHR held that:
indirect refoulement of an alien leaves the responsibility of the Contracting State intact, and that State is required, in accordance with the well-established case-law, to ensure that the person in question would not face a real risk of being subjected to treatment contrary to Article 3 in the event of repatriation.Footnote 169
Refraining from violating the principle of non-refoulment is not enough. The principle further entails a requirement to provide asylum seekers with access to fair and effective procedures to assess their protection claims on an individual basis.Footnote 170 This is nearly impossible to facilitate at sea. The Office of the UN High Commissioner for Refugees has stated that:
the identification and subsequent processing of asylum-seekers is an activity most appropriately carried out on dry land. Onboard processing, both in the form of initial screening and more comprehensive determination, has been attempted in past refugee crises. It proved problematic in various respects, including inter alia, ensuring adequate access to translators, safeguarding the privacy of the interviews carried out under difficult conditions on board ship, ensuring access to appropriate counsel and providing appropriate appeal mechanisms.Footnote 171
The ECtHR has also underlined that the individual circumstances of every person rescued must be the subject of a detailed examination and has noted the difficulty of doing so on board a ship mainly because of the lack of trained personnel, legal advisers and interpreters.Footnote 172 It is therefore essential that refugees and asylum-seekers are disembarked or taken to a safe third country where they can receive temporary protection until their claims are fully processed.Footnote 173 Human rights standards apply in temporary reception centres, including rescue units or ships used for that purpose.Footnote 174
7. Conclusion
This article has examined the duty to render assistance through the lens of international human rights law. It demonstrated that while this duty is well established in the international law of the sea, significant human rights issues arise during maritime SAR that need to be studied and addressed from a human rights perspective. Most human rights challenges concern SAR operations, or the lack thereof, involving boats carrying migrants. This article discussed these challenges and suggested how they could be overcome by adopting a human rights-oriented approach to maritime SAR.
The starting point was to underline that the duty to render assistance is a due diligence obligation. States are required to take reasonable steps to rescue persons in distress but are not expected to rescue every person at risk of drowning. Subsequently, the complex jurisdictional issues were addressed. It was explained that the existing rules of jurisdiction may be read and applied to various scenarios of maritime SAR to hold coastal States, flag States and rescuing States responsible for upholding the human rights of persons in distress. Admittedly, these rules do not capture all possible scenarios, but caution was urged with regard to efforts to come up with new rules of jurisdiction that risk distorting the existing jurisdiction seascape. Instead, it was argued that human rights law should be used to guide the responses of States to maritime SAR from the moment they receive a distress call through to the moment they disembark rescued persons on land. While the concurrent application of the law of the sea and human rights law might not always be straightforward, human rights law can provide a compass to States in rescuing those who have lost theirs.
Acknowledgements
I would like to thank the anonymous reviewers and the International and Comparative Law Quarterly editorial team, Anna Riddell-Roberts and Adaena Sinclair-Blakemore, for their comments on my paper. Any errors that remain are my sole responsibility. The Gold Open Access publication of the article was financially supported by HEAL-Link.
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