11 May Another Perspective on Search & Rescue in the Mediterranean Sea
[Paolo Busco is a member of Twenty Essex Chambers, where he practices in the field of public international law. All opinions are expressed in a personal capacity only.]
Rescuing people in distress at sea is a duty. However, does international law require a coastal State to open its ports or territorial sea to foreign ships involved in the rescue? The question is not new, especially in the context of migration flows from Africa. Mostly, however, the analysis has been focused on the conduct of individual States, as opposed to the community of States (however see, for some considerations on solidarity , Gauci and Karageorgiou). Has country X violated international law by denying entry to rescue ships? In this piece, I address the question from both perspectives, starting from direct obligations, and then moving to obligations of cooperation. I confine my analysis to law of the sea issues. I would like to discuss the international human rights and refugee law angles in another post.
Direct obligations regarding ports
As a general rule, a coastal State has no obligation to open its ports to foreign-flagged vessels. Prof. Vaughan Lowe noted that “clearly the presumption lies in favor of the right of the coastal State to deny entry”. The right to deny entry is a corollary of sovereignty in customary international law and is confirmed by treaty law. For instance, FAO’s Port State Measures Agreement, at Article 4(1)(b) provides that “nothing in the agreement shall prejudice the exercise by Parties of their sovereignty over ports in their territory in accordance with international law, including their right to deny entry thereto”.
The critical question is whether a duty to open ports to foreign-flagged vessels can be inferred from the duty to save life at sea. It is often assumed that the answer is in the affirmative and that the duty falls on the closest port. The law does not support these propositions (see Neri, here). While both the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention on Maritime Search and Rescue (SAR) provide that the natural outcome of a rescue operation is disembarkation, the Conventions do not indicate where disembarkation must occur.
Both SOLAS (Chapter V, Regulation 33) and SAR (Chapter 3, paragraph. 3.1.9), as amended in 2004, indicate that States must arrange for the disembarkation of persons rescued at sea “as soon as reasonably practicable”. The Guidelines on the Treatment of People Rescued at Sea specify that the aim of the 2004 amendments is “to ensure that in every case a place of safety is provided within a reasonable time”. This is not the same as saying that disembarkation must occur at the closest port. SOLAS and SAR require the State responsible for the SAR region in which the rescue operation occurred to exercise primary responsibility in ensuring coordination and cooperation among States to identify a suitable port for disembarkation. However, they fall short of saying that the SAR State must offer its own ports. The Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea indicate that “if disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the Government responsible for the SAR area should accept the disembarkation of the persons rescued”. However, these guidelines are non-binding, and the language used only hortatory (see Guilfoyle and Papastavridis, at 6)
The conclusion is that “these provisions do not imply an obligation for States to disembark rescued persons on their territory” (See Coppens and Somers, at 387). While this state of the law is very unfortunate, it is so by design: any attempt to introduce clarity into SOLAS and SAR by adopting binding criteria as to where the survivors should be disembarked has so far regrettably failed (for a discussion see here).
Direct obligations regarding the territorial sea
It is sometimes argued that not allowing rescue ships to enter the territorial sea for purposes of disembarkation is inconsistent with the right of innocent passage that foreign vessels enjoy (see, generally, Rossi). Two arguments are normally advanced: a) that innocent passage includes proceeding to internal waters or a call at port facility, under Article 18(1)(b) of UNCLOS, and that the cases in which passage can be impaired are exceptional under Articles 24 and 25 (see Papanicolopulu and Baj, at 44 and Rossi, at 11); b) that according to Article 18(2) of UNCLOS, “passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are (…) for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.” [emphasis added]
As regards the first argument, my view is that Article 18(1)(b) must be interpreted taking into account that there is no general freedom to enter ports. Yang notes, for example, that “the practical significance of the right of innocent passage to or from a port facility within internal waters depends completely upon the permission or acquiescence by a coastal State for a foreign ship to enter or depart from its ports. In this sense, the right of passage concerned can hardly be considered an independent right. Therefore, the right of passage here is actually subordinate to the regime of access to internal waters, including ports” (see here, at 151). Similarly, Barnes, notes: “passage to or from coastal facilities and internal waters will only be available when internal waters or said facilities are open to international navigation. It is important to note that coastal States are quite free to control access to ports and internal water” (see here, at 184).
Based on the above, it is of little practical relevance to discuss whether passage of a rescue ship could be limited under Article 21 UNCLOS, because it infringes “immigration (…) laws and regulations of the coastal State”. It is also moot to refer to Articles 24 and 25 to argue that passage can be hampered or prevented only in extraordinary circumstances, for instance when it is non-innocent under Article 19 UNCLOS. On this point, my sense is that passage of a rescue ship with migrants on board cannot by default be considered non-innocent. However, my view is that a ship intending to enter the territorial sea to disembark those rescued, when the ports have been closed, is not in passage in the first place, regardless of the question of its innocence.
As regards the second argument, “rendering assistance to persons” refers to persons who need rescuing during the innocent passage through the territorial sea, rather than to persons rescued before the entry into the territorial sea. The purpose of the second sentence of Article 18(2) is to identify exceptions to the continuous and expeditious character that innocent passage must have. These exceptions include rendering assistance to those in distress in the territorial sea. As Barnes also notes, on a rigorous reading of Article 18, rendering assistance to persons cannot be used to gain access to the territorial sea (see here, at 185).
Ultimately my view is that ordering a foreign-flagged vessel not to enter the territorial sea is consistent with UNCLOS, as long as the order is not accompanied by an exercise of enforcement jurisdiction (i.e. interception) beyond the territorial sea against the ship to prevent entry.
A foreign flagged vessel may always enter the territorial sea of another State to carry out a rescue operation there. This right of entry would not be pursuant to Article 18 UNCLOS though; rather, to the customary right-duty to render assistance to any ship in distress, wherever that is. Similarly, a ship that is herself in distress must be allowed entry into the territorial sea or port. Distress is defined by SOLAS 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” (para. 1.3.13, SAR Annex). In practice, this is every time a matter of intense debate. For instance, in Sea Watch 3, the ECtHR rejected a provisional measures request aimed at gaining authorization to disembark in Italy. The Court did not see a grave or urgent enough situation on board to justify disembarkation, given the assistance that Italian authorities were providing to survivors on the vessel. A day after the ECtHR decision, however, the captain invoked the dire situation on board and, on this basis, entered the territorial waters of Italy. The Italian Supreme Court agreed with her that she was exercising a duty to save lives (for an account, see here).
Duty to cooperate for disembarkation
Whereas unequivocal duties of disembarkation binding individual States are lacking, there is a clear duty of cooperation among all States concerned, to ensure swift disembarkation. Article 98(2) UNCLOS requires States to cooperate with neighboring States, where circumstances so require, for purposes of rescue operations at sea. As seen, SAR and SOLAS indicate that State parties must coordinate and cooperate so that survivors are delivered to a place of safety. IMO Guidelines indicate that “the Government responsible for the SAR area where the persons are rescued, other coastal States in the planned route of the rescuing ship, [and] the flag State” should cooperate in order to ensure that disembarkation of the persons rescued is carried out swiftly. These duties are made even more compelling by Article 80 of the TFEU, which indicates that EU policies in the field of immigration shall be governed by the principle of solidarity and fair sharing of responsibility between Member States.
In this spirit, in 2019 Italy, Spain, Germany and Malta launched an initiative to set up “a more predictable and efficient temporary solidarity mechanism in order to ensure the dignified disembarkation of migrants” and “to tackle the possible uncertainties regarding the disembarkation”. This would be to avoid Sea Watch 3 types of scenarios. In that case, Italy allowed disembarkation of 10 migrants on 15 June 2019, but failed to secure cooperation for disembarking 42 people still on board, until 28 June 2019, when 5 States gave their availability. To date, only a small minority of EU Members have decided to join in the mechanism, but the four countries are pressing ahead and they have engaged the EU Commission on this proposal in April 2020.
In any case, the question is whether duties of cooperation could be enforced against a recalcitrant State, especially in the case of the most glaring failures to cooperate. Looking at UNCLOS, for example, a State with primary responsibility to ensure coordination on disembarkation may claim that refusal to cooperate by other States is contrary to Article 98(2). It may be argued that uncooperative conduct is a breach of Article 300 (good faith). For example, in the Enrica Lexie case, Italy claimed that the circumstances surrounding the arrest of two Italian Marines members of a VPD by India constitutes a breach of Article 100 (duty to cooperate against piracy), as well as of Article 300, read with Article 100. Article 300 cannot be invoked on its own, but “a State Party claiming a breach of Article 300 must first identify the obligations assumed under this Convention [UNCLOS] that are not fulfilled in good faith” (see, most recently, the ITLOS in Norstar, at para 241). The required link could be established with the obligations to cooperate under Article 98(2). A Tribunal convened under UNCLOS, while not having jurisdiction over SAR and SOLAS, could resort to Article 293 (applicable law) to interpret Article 98(2) and 300 in light of the obligations of cooperation set out by these Conventions (see Norstar, at para 137).
As Guilfoyle notes, “identifying a breach of a duty to cooperate is notoriously difficult” (here, at 130). Yet, emphasizing the duty to cooperate in good faith, and trying to give it some teeth, is a more attractive option than focusing on imposing uncertain disembarkation obligations on individual States. The body of law on rescuing people at sea was not conceived for, and is ill-equipped to provide effective solutions to, the governance of migratory flows. While waiting for a reform – or a total reconceptualization – of the Dublin system in accordance with EU principles of solidarity, an imposition of common responsibility, even if only under the guise of collective law of the sea obligations, provides a more adequate, fair and sustainable framework to deal with this complex phenomenon. No man is an island – and no State is, either.