"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…."
So begins Chapter V Regulation 33 of the Safety of Life at Sea (SOLAS) Convention: international law, ratified by very nearly all maritime States. SOLAS Chapter V applies “unless expressly provided otherwise […] to all ships on all voyages”. The exceptions are few: Government vessels such as warships – which are nevertheless “encouraged” to comply – and (perhaps rather oddly) “ships solely navigating the Great Lakes of North America […]”
To be clear, then, all vessels at sea, with some clear exceptions, are obliged under international law to assist “persons in distress at sea”. Indeed, this was been seafaring tradition for centuries. So what is there to discuss?
In recent years people escaping war or mistreatment, or simply trying to improve their lives, have ventured out to sea, usually in craft totally unsuitable for the purpose, trying to reach better places. Many thousands have died in the attempt.
Again, let’s be quite clear. Neither SOLAS, nor the United Nations Convention on the Law of the Sea which underpins it, nor any other international legal agreement distinguishes between “persons in distress” – not by race, gender, age, nationality, creed or economic or legal or any other status. If they are “in distress”, commanders of vessels at sea are obliged to help them if they can – as are States, which SOLAS requires to establish SAR services, and to assist rescuing ships.
Let’s be clear too that, when it comes to SAR, the regulations do not distinguish between different sea areas – territorial waters and the ‘high seas’, for example. Someone in distress must be rescued if possible whatever sort of water they are in. And ‘rescue’ includes transfer to a ‘place of safety’, “…where the survivors’ safety of life is no longer threatened and where their basic human needs […] can be met…”
The maritime Conventions do not specifically include the principle of ‘non-refoulement’ – which forbids delivering people to a country in which they would be in likely danger of persecution – but we can safely read across from other UN organizations’ provisions that the ‘place of safety’ is one in which this requirement too must be met.
All of this is important because, in some quarters, voices have been raised criticising the rescue of ‘mixed migrants’. It has become necessary to explain the internationally agreed legal position. The answers to the difficult problems of migration now occurring around the world are not to be found by changing things at sea. The principles of maritime rescue are clear, well-founded and must be defended against ill-considered criticism.
The IMRF will continue to defend them.
There is one more problem, however. What is ‘distress’? We are obliged to rescue “persons in distress” if we can – but what does ‘distress’ amount to? Here the international maritime agreements let us down a little. ‘Distress’ is not defined in them. Instead, the ‘distress phase of emergency’ is defined: “a situation wherein there is reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance”, in the words of the Maritime SAR Convention.
Now: neither a lawyer comfortably ashore nor a seafarer at sea is likely to be in any doubt if people are struggling in the water far from safety. The danger is “grave and imminent” and the need for immediate assistance obvious. But what if those people are crammed into a poorly-made rubber raft being pushed out to sea by a dodgy outboard motor? Some lawyers argue that these people are not in distress (or not yet, anyway); and seafarers who have witnessed such things say that of course they are: they were in distress almost from the moment they left the beach.
We, as maritime SAR people, must side with the seafarer here. Expert opinion must take precedence when a clear set of closely-defined parameters cannot be established or measured. If the maritime expert has “reasonable certainty” that “grave and imminent” danger exists and that “immediate assistance” is required, that must suffice.
The obligation to attempt rescue of those in apparent distress at sea is absolute. We must ensure that the long-established principles that make it so are not undermined. The migration problem must be addressed by Governments in the only place it can be: ashore.