When Private Vessels Rescue Migrants and Refugees: A Mapping of Legal Considerations
The report explores the law around search and rescue particularly from the perspective of private vessels. The report is organised as follows:
- Setting the context
- The Obligation to Rescue
- Human Rights Responsibilities
- Commercial Implications
The Mirpuri Foundation and the British Institute of International and Comparative Law (BIICL) released the findings of an unprecedented study on the legal implications for private vessels involved in the rescue of migrants and refugees at sea. The study was presented at a webinar that gathered experts and relevant attendees from all over the world.
Funded by the Mirpuri Foundation and led by Dr Jean-Pierre Gauci, the project initiated as a response to the ever-growing numbers of would-be asylum seekers and migrants forced to embark upon perilous sea crossings, unveiled a set of important legal conclusions that can ultimately serve as guidance for individuals, companies, NGSs and governments:
- The obligation of vessels to rescue people in distress at sea is clearly established in International Law;
- When involved in the rescue of migrants at sea, private vessels have the responsibility to avoid causing or contributing to human rights violations. This includes the obligation to prevent loss of life at sea and the responsibility to ensure that people are not returned to countries where they might face serious human rights violations;
- The commercial costs for vessels in the context of rescue comprise direct costs – such as humanitarian provisions, additional wages and stores, extra fuel consumed during and after the rescue – and indirect costs – including issues arising from deviation and delay, resulting in financial losses;
- States also have responsibilities and obligations regarding these situations. For instance, States have the responsibility of ensuring that the vessels rescue people in distress, that they support masters in their rescue operations, that they cooperate to ensure prompt disembarkation and that they refrain from providing instructions that result in human rights violations.
Dr. Jean-Pierre Gauci, the research project leader, explained in detailed the importance of clarifying the legal basis: “due to lack of clarity in aspects of the legal framework, coupled with the way politics has come into this, we too often see problems arising including vessels being told to take people back to unsafe ports like Libya and disembarkations being denied or delayed. This is causing a disincentive for shipping companies to rescue people at sea. We also now have the reality of NGO rescue vessels and the various challenges to their work being enacted by States. It is critical that we push for a better understanding of what the issues are, and how, for example, human rights responsibilities apply in the maritime context’
Paulo Mirpuri, President of the Mirpuri Foundation, hopes that this research will contribute to ensuring that lives are saved at sea, providing guidance to seafarers, ship owners and States. “I would like to congratulate BIICL for coordinating this study and this conference, and this will be followed up by making the report available to the several regulators and institutes across the world, especially here in Europe, to analyze and to learn from this report what they need to adapt in their homes, local procedures, and take a look at their own regulations”.
The presentation of the findings was followed by an experts discussion.
Prof. Irini Papanicolopulu, Universita di Milano-Bicocca, pointed out: “The report brings clarity to several aspects and in this respect I think we should welcome it very much and be happy that it is now released”. Gabrielle Holly, Danish Institute for Human Rights, stated: “Thanks to the Mirpuri Foundation for funding what I think is a very timely and very on point research”.
Dr. Felicity Attard, University of Malta, said: “I would like to express my gratitude to the Mirpuri Foundation for funding research on a topic of great importance and one which has been very close to my heart for the last few years”.
Maritime Search and Rescue: Responsibilities and Implications for Private Vessels
Recent years have seen growing numbers of migrants, and would-be asylum seekers, embarking on perilous sea crossings to flee violence, conflict or persecution. Private vessels and NGO ships have increasingly been called on to assist persons in distress. In 2016, 381 merchant ships were diverted from their routes and 121 ships were involved in the rescue of 13,888 people.
Assistance by private vessels can vary from monitoring a vessel or temporarily embarking migrants whilst awaiting further assistance, to embarking and transporting migrants to a safe port. A number of legal issues arise in these scenarios, including related to the health and safety of persons on board, the duty of non-refoulment, private vessel contractual obligations and litigation potential.
Whilst guidelines have been developed on the practical measures seafarers should undertake in preparation for, and during, rescue operations, there is uncertainty on some of the legal issues at stake. Through independent, authoritative research and capacity building, the project provides clear, practical guidance on the legal obligations incumbent on private vessels in search and rescue.
The research examined the roles, responsibilities and legal implications for private vessels.
Whilst the focus was on commercial vessel, the role played by and implications for and of NGO rescue operations was also be considered. The project considered international and national law in a range of areas, including refugee, criminal, human rights and maritime law, as well as the practices undertaken by States and industry bodies. The research was draw on treaties, legislation and case law, as well as soft law sources, including industry regulations, and secondary sources, such as the academic literature. Research also involved a consultation with relevant stakeholders, conducted through semi-structured interviews. This considered the policies and practices undertaken in a number of (coastal and flag) States and by a number of industry stakeholders.
The project developed guidance and recommendations for private vessels, NGO ships, industry bodies and policy makers in search and rescue. Where appropriate, guidance was also provided on the roles and responsibilities of States.
This project was funded by the Mirpuri Foundation. If you would like to find out more, please contact Dr. Jean-Pierre Gauci.
For more information visit BIICL: https://www.biicl.org/projects/maritime-search-and-rescue-responsibilities-and-implications-for-private-vessels
Project announcement in 2019:
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