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Shipping and the law on rescuing migrants

The moral obligation to save life at sea is simple and straightforward; inevitably, the legal position is not

With Maersk Etienne off-hire for a month after rescuing 27 migrants at the request of Malta’s SAR centre, top shipping law firms outline the issues surrounding the case

THE obligation to save life wherever possible has been set down in the moral codes of the world’s major religions for millennia.

In maritime practice it has been around for centuries, and in the law of the sea for decades.

The issue is back in the spotlight as a result of the political impasse over the vessel Maersk Etienne. On August 4 it responded to a request from Malta’s search and rescue co-ordination centre to assist a migrant boat carrying 27 people.

Since then, the vessel has been at anchor off Marsaxlokk, with Malta refusing to take them on shore. Prime minister Robert Abela has said responsibility for them rests with Denmark as flag state.

Maersk is declining to discuss the cost, but has confirmed that the ship has been off hire for more than four weeks. The expense of additional provisions is also likely to be substantial.

This is the latest episode in a problem that has grown with the increase in migration across the Mediterranean, sparked by conflicts in North Africa and the Middle East.

What is the legal position? Is a vessel obliged to assist a migrant boat in difficulties in the first place? According to legal experts, the short answer is yes.

Under article 98 of the United Nations Convention on the Law of the Sea, a master has a duty to “render assistance to any person found at sea in danger of being lost in so far as he can do so without serious danger to the ship, the crew or the passengers”.

The master must respond to “information from any source that persons are in distress at sea” and is “bound to proceed with all speed to their assistance” (The International Convention for the Safety of Life at Sea, chapter V regulation 33).

He may only refuse to do so in “special circumstances”, which would probably have to go beyond purely commercial reasons.

Neither Unclos nor Solas, the Safety of Life at Sea Convention, specify any sanction for failure to act, according to Marcus Dodds, a master mariner and partner in Watson Farley & Williams.

“The text of these (and other relevant) conventions do not prescribe penalties, they only propose the duties,” he said. “It is up to each state party that has transposed such duties into their national law to address what penalties should be imposed and upon whom if those duties are breached.”

That leaves the decision about prosecution down to flag states and/or coastal states, according to Clyde & Co partner Stephen Mackin.

“A failure to provide assistance, without reasonable justification — for example, in the event it would put the vessel providing assistance in peril or there were better suited vessels to provide assistance at the site — is punishable by criminal sanction,” he said.

“Sanction is enforced either by the vessel’s flag state, where the incident is in international waters, or it may be subject to local law were the vessel is in territorial waters.”

While all flag states may be equal from a legal standpoint, some are clearly more equal than others, as George Orwell might have put it. In the real world, the prospect of meaningful enforcement by jurisdictions in which the state effectively does not function on land is probably slim.

No binding obligation 

Once the migrants are on board, there seems to be no binding obligation on any country to accept them on shore. So while Mr Abela appears to be wrong to suggest that the Maersk Etienne crisis is Denmark’s problem, from a strict legal standpoint, he is probably correct to insist it is not Malta’s.

Unclos article 98 simply provides: “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 co-operate with neighbouring states for this purpose.”

The Search And Rescue Convention chapter 3.1.9 imposes an obligation on the party responsible for the search and rescue region where the incident occurs to have the primary obligation for assisting in the prompt disembarkation of any persons rescued, said Mr Mackin.

“So, where the rescue takes place in coastal waters, the obligation to arrange disembarkation would be clear and would fall on the coastal state,” he said. “However, a rescue outside coastal waters can result in a stalemate, the vessel having effected a rescue continuing on her voyage to her intended destination and the authorities in that location refusing to accept the rescued persons.”

A lawyer at a third law firm said: “The closest coastal state should permit the ship to dock and deliver the refugees, but the reality is that many have not done so.”

Citing the legal term used to describe the documentary evidence of the negotiation, discussions, and drafting of a final treaty text, he added: “In the travaux préparatoires to one of the conventions, language making it an express obligation was rejected by the states.”

In 1981, a resolution of the executive committee of the United Nations High Commissioner for Refugees argued that the duty to accept asylum seekers should fall on the country of the next port of call. But this does not have binding force.

“This is not to my knowledge anywhere in statute or convention,” the lawyer added. “There is no definitive answer, unfortunately.”

The European Commission does not have the legal jurisdiction to enter the conflict about which country should accept the 27 migrants that are stuck on board Maersk Etienne. Denmark may have to accept the migrants, Danish political parties say, although the minister responsible rejects the notion.

The International Maritime Organization said in an email that it was monitoring the situation.

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