07 Nov The Persisting Tragedy in the Mediterranean and What Stands in the Way of the Shipmaster’s Duty to Render Assistance
[Antarnihita Mishra is an Assistant Professor of Law at IFIM Law School, Bengaluru, India. She has an LL.M. in International Law from South Asian University, New Delhi.]
Recent data released by the UN Refugee Agency suggests that the Mediterranean, the world’s deadliest sea crossing, has become even more fatal now. Despite a fall in the number of migrants and refugees making the crossing to reach Europe, the death toll has seen a steep rise, with more than nineteen hundred reported as either dead or missing at sea in the Mediterranean in the last year alone.
As the Mediterranean continues to claim hundreds of lives every year, it becomes important to discuss the factors that could prevent the rescue of those making the crossing when they are in peril at sea. Under international law, shipmasters have a duty to provide assistance to such people (i.e., persons in distress at sea). However, several factors can get in the way of their doing so, thereby impeding rescue and resulting in the unfortunate loss of thousands of lives at sea.
The Shipmaster’s Duty to Render Assistance
The duty to render assistance to persons in distress at sea is a long-standing rule of international law. The same has been codified in the United Nations Convention on the Law of the Sea (UNCLOS), 1982 and complemented by IMO instruments such as the International Convention for the Safety of Life at Sea (SOLAS), 1974 and the International Convention on Maritime Search and Rescue (SAR), 1979. The UNCLOS further mandates States Parties to place this duty on masters of ships flying their flags. Article 98(1) of the UNCLOS provides: “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: (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance…”. Similarly, Regulation 33 (Chapter V) of the SOLAS Convention requires: “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…”. Ship masters, therefore, have a duty under international law to proceed to the assistance of persons in distress at sea.
The Significance of this Duty for Mediterranean Crossings
The duty to render assistance to those in distress assumes greater significance in the context of sea routes and journeys that pose greater risk and danger to people’s lives. The Mediterranean is an apt example. The passage has claimed the lives of thousands of people taking the sea route to reach European countries (The UNHCR reports that between 2014 and 2021, more than 24000 have died or gone missing trying to cross the Sea). While some of them are searching for a better life and economic opportunities, many are fleeing conflict, violence or persecution, and are mostly from countries affected by years of conflict and displacement. They embark on this dangerous journey in order to reach European countries, perceived as safe, for a chance to start a new life in peace and security. However, the journey that would take them to the safe destinations is itself a perilous one (the Mediterranean is the world’s deadliest sea crossing), and results in hundreds of them being in distress at sea every year. Distress situations have become a regular occurrence as the vessels on which these people make the journey are unseaworthy and overcrowded. Thus, the shipmaster’s duty to render assistance to persons in distress becomes all the more important on the Mediterranean route.
Challenges in the Way of the Shipmaster’s Duty to Render Assistance
Although international law places a duty on ship masters to proceed to the assistance of persons in distress, there are several factors that could prevent them from doing so. Certain actions of States, including the practice of pushing back boats carrying migrants and asylum seekers, denying disembarkation of rescued persons, and prosecuting ship masters who have rendered assistance to migrants and refugees, are some examples. Criminalising, halting or impeding the work of rescue vessels could also have an adverse effect on the ship master’s duty. Ship masters might also hesitate in rendering assistance to migrants and refugees due to apprehensions that taking them onboard would put the crew or the passengers at risk of diseases or illnesses. Another obstacle in the path of the shipmasters’ duty to render assistance is the lack of equipment for radio communication on vessels that migrants and refugees make their passage on. In the absence of information about the need for assistance, a ship master cannot proceed to provide the same to the people in distress. All these factors might stand in the way of ship masters obliging with their duty to render assistance under international law.
State Action – Pushbacks and Denial of Disembarkation
Pushback refers to the practice of stopping asylum seekers and migrants at or before they reach the borders. This practice, adopted by many EU States, is not only incompatible with international law, but also may adversely affect the ship master’s duty to rescue persons in distress at sea. The policy of stopping boats carrying migrants and asylum seekers from reaching their borders shows the reluctance of States to allow such persons into their territory. Masters of ships flying the flag of such States might hesitate in rendering assistance and taking onboard the same people that the concerned State is trying to keep out. The pushback tactics to prevent migrants and asylum seekers from entering the territory can, thus, interfere with the shipmasters’ duty to render assistance under international law.
Another related practice of States that could be an obstacle in the path of the ship master’s duty to assist persons in distress is that of denying disembarkation of those rescued at sea. Many States have shown reluctance in allowing disembarkation of migrants and refugees on their shores. This might discourage ship masters from taking onboard such people because of the apprehension that coastal States might not allow disembarkation. This is despite a duty on coastal States under the international law of the sea to “…co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking onboard persons in distress at sea are released from their obligations…” and the responsibility to ensure that “such co-ordination and co-operation occurs so that survivors assisted are disembarked from the assisting ship”. Instead of ensuring that their practices are in consonance with their duties under international law, however, States are increasingly denying the disembarkation of refugees as it triggers obligations of refugee reception. By denying disembarkation of rescued persons, States have not only risked the violation of their duty under international law, but also obstructed the duty of ship masters to render assistance to those in distress.
In addition to state actions that can affect the duty of a ship master to provide assistance at sea, there are other factors that can stand in the way of this duty. One of these is the unavailability of equipment for radio communication on the vessels that migrants and refugees make their sea journey on. Both the UNCLOS and the SOLAS Convention require the master of a ship to proceed with speed to rescue persons in distress if informed of their need of assistance/on receiving information that persons are in distress, respectively. However, the boats on which refugees and migrants usually make their sea journey, are unseaworthy vessels. The likelihood that these vessels would have adequate or any equipment for radio communication is very less. In the absence of such equipment, it becomes difficult for those in distress to convey the need for assistance to nearby ships. As a result, ship masters would not be able to proceed to assist them. Secondly, apprehensions that taking onboard migrants and refugees could put their crew or the passengers at risk, could also affect the ship master’s duty to render assistance.
Despite the existence of a duty under international law to render assistance to persons in distress at sea, ship masters might be unable to do so because of the factors discussed above. State actions such as using pushback tactics, preventing disembarkation of rescued people and prosecuting ship masters who have rescued such people, can have a chilling effect on the shipmasters’ duty to render assistance. This duty can also be affected because of other factors such as apprehensions about the risk of diseases, or the lack of equipment for radio communication. Nevertheless, some of these challenges can be addressed. Particularly the ones arising due to State actions. By putting an end to pushbacks and by allowing disembarkation of rescued persons, States can reduce the obstacles in the path of a shipmaster’s duty to render assistance, thereby ensuring compliance with international law, and preventing the loss of hundreds of lives at sea.