The MV Salamis and the State of Disembarkation at International Law: The Undefinable Goal

Introduction: The Relevant Facts

On August 4, 2013, a Liberian-registered tanker, the MV Salamis, was directed by the Maritime Rescue Coordination Centre (MRCC) Rome to rescue 102 African migrants from a boat in distress off the Libyan coast.  The rescuees included four pregnant women, a five-month old baby, and an injured woman.  MRCC Rome then instructed the shipmaster to return to Khoms in Libya which it considered to be the nearest port of safety. The shipmaster, however, proceeded on the planned route towards Malta in order to disembark the rescued migrants there.  Malta denied entry to the vessel.  Maltese armed forces distributed food, water, and medical aid to the migrants on board, determining that evacuations were unnecessary. An impasse followed as Malta refused to allow disembarkation, claiming that the shipmaster had ignored calls to turn back to Libya.  On August 7th, Italy agreed to allow the migrants to disembark in Syracuse, ending the crisis on the Salamis.  Yet legal issues regarding the disembarkation of migrants rescued on the high seas remain a point of contention between States, in particular due to the lack of clarity under international law governing search and rescue at sea.  

Outline of the Legal Regime

The Meaning of Distress

In order to necessitate a rescue, the vessel in question must be in a state of distress.[1]  The International Convention on Maritime Search and Rescue (SAR Convention),[2] describes distress as a “situation wherein there is a reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance.” This definition arguably corresponds to the definition of distress under customary international law. 

In its 2012 Report, the Parliamentary Committee of the Council of Europe (PACE) contemplated indicators of distress.  That report found that whether a boat’s engine was operative or not was not necessarily determinative of the state of “distress.” Other factors -- including how crowded a boat is, how great the distance from shore, or how many people on board showed clear signs of distress -- should be taken into account in the determination of whether or not a vessel is in distress.[3]  At no relevant time was it claimed that the Salamis was in distress after rescuing the migrants.

SAR Obligations and Disembarkation

The obligation to rescue those in distress at sea is enshrined inter alia in the 1982 Law of the Sea Convention (LOSC)[4] and may be regarded as part of customary international law, binding all States.[5]  Aside from Article 98(1), however, there is a noticeable dearth of regulation in the LOSC relating to search and rescue operations.  Further regulation has been fleshed out in two International Maritime Organization (IMO) Conventions, namely the SAR Convention and the International Convention on the Safety of Life at Sea (SOLAS).[6]

International law does not impose an unequivocal duty on any State to accept disembarkation of rescued persons on its territory.  The basic premise, following the Nicaragua judgment, is that a coastal State may regulate access to its ports by virtue of its sovereignty.[7] This premise is limited, however, by vessels in distress requiring entry into a coastal state’s port.[8]

According SAR Convention, amended in 2004, a State’s SAR obligations include the primary responsibility to coordinate all search and rescue operations within its SAR zone such that rescuees are disembarked and are taken to a place of safety.  It must also ensure that all rescued persons are disembarked at a place of safety within a reasonable time, and must release shipmasters who have rescued persons in distress at sea from their obligations in order to ensure minimum deviation from the ship’s intended voyage.[9]

While Italy has accepted the 2004 amendments, Malta has formally objected to them.  Malta has also indicated that it does not consider itself bound by the Circular of the IMO’s Facilitation Committee (FAL) of January 2009 entitled “Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea.”[10]  Instead, Malta advocates the “next port of call” rule, mandating disembarkation at the nearest safe port to the site of the rescue, which in the Maltese SAR area[11] is often a port in Italy.  Italy, on the other hand, reads the 2004 amendments as requiring the State in whose SAR area the rescue is effected to disembark the rescues on its territory. 

However, the SAR Convention only lays down an obligation of coordination and cooperation and does not necessarily entail an explicit duty to allow disembarkation in a particular port.[12]

The ‘Place of Safety’

The 2004 Guidelines define a “place of safety” as the location where the rescue operation terminates.  Here, the rescuees’ lives must no longer be under threat and their basic human needs (such as those relating to food, shelter, and medical exigencies) may be met.[13]

That the “place of safety” also includes factors other than immediate physical needs and extends to protection of human rights is evident both in the Guidelines on the Treatment of Persons Rescued at Sea (see paragraphs 5.1.6 and 6.17, noted below) and in the PACE Resolution 1821 (2011) which asserts that such place of safety must necessarily entail respect for fundamental rights and not only physical protection focused on the immediate alleviation of distress.[14]

Non-Refoulement

Article 33 of the 1951 Refugee Convention[15] enunciates the principle of non-refoulement.[16] While the Refugee Convention does not grant the right to asylum nor does it oblige a State to hear and process asylum claims, it does mandate that no asylum seekers be sent back to a place of persecution or to a non-party State to the Refugee Convention.  The obligation is not limited territorially but operates wherever a State acts – even on the high seas and indeed, wherever a State exercises effective control over a vessel.[17]

This was reaffirmed by the Grand Chamber of the European Court of Human Rights in Hirsi Jamaa and Others v. Italy,[18] wherein it was unequivocally stated that, post-rescue, people are not to be pushed back to a country where they risk being treated in violation of Article 3 of the European Convention on Human Rights which protects against inhuman and degrading treatment or punishment. Through this judgment, the obligation of non-refoulement formally entered the realm of human rights law, and bolstered its potential status as a jus cogens norm.[19]

What of Responsibility?

In the instance of the MV Salamis, Italy, as the State coordinating the rescue, directed the Master of the rescuing vessel to return to the Libyan port from which it had departed.  Similarly, Malta took the position that the Master had breached international obligations by not seeking to disembark the rescuees at the closest safe port.[20]  However, it is submitted that these directions themselves breached international law since a State cannot cause the return of migrants to a place which does not constitute a place of safety.  As was highlighted by, inter alia, the Grand Chamber of the European Court of Human Rights in Hirsi Jamaa v. Italy, Libya does not constitute a place of safety.[21]

Return by official vessels or aircraft, or direction to private vessels to return individuals to a potential place of persecution, amounts to a push-back operation which violates international legal norms.[22] Indeed, directing the Master of a rescuing vessel to return to Libya post-rescue would be tantamount to a de facto push-back. Both Italy and Malta gave such instruction.

Aside from its insistence that the Master return the rescued individuals to Libya, Malta’s responsibility to disembark the migrants, if any, would exist if it were under a legal obligation to admit the Salamis for disembarkation of the rescuees on its territory.[23]  However, as the Salamis was not, at the relevant time, in a state of distress, Malta was not legally obliged to permit entry to port and subsequent disembarkation.

Malta could, however, arguably be held responsible for delaying the conclusion of the rescue operation by denying entry into port by permitting a delay in reaching a place of safety.  A counter-argument may hold that since this obligation is framed in Article 3.1.9 of the Annex to the SAR Convention, which Malta is not party to, the State is not bound by this provision.  It is submitted that this would be incorrect because the underlying purpose of the SAR Convention is rescue and delivery to a place of safety; such core obligations of a fundamental character cannot be evaded. 

Italy’s initial position regarding responsibility was much the same as Malta’s, insofar as directing the Master to return the rescuees to Libya and postponing the termination of the rescue operation.  That it bore the primary responsibility in coordinating the rescue is clear and borne out by the paragraph 6.7 of the Guidelines.[24]  Italy has consistently interpreted the 2004 SAR amendments to obligate the State in whose SAR area the rescue is conducted to allow disembarkation of rescuees.  On this reasoning therefore, Italy was obliged to disembark the individuals which the Salamis had rescued.  Contrary to previous practice however, Italy advocated in the case of the Salamis, that the rescuees should be disembarked at the closest port. 

This incident also contemplates the prospect of a responsibility vacuum: the responsible SAR authority, Libya, did not act. The current SAR regime leaves unresolved a situation where the SAR State does not act and remains unresponsive to distress calls, thereby failing to fulfill its duty to coordinate search and rescue operations. The only regulation that exists is the general duty at international law obliging all States to cooperate and assist in a rescue operation, regardless of whether they bear the primary responsibility as SAR State, or whether they bear the general obligation of Article 98(2) of the LOSC.   Such regulation may not be effective enough especially when one considers the tragic consequences that may occur in the absence of timely assistance.[25]  

The Default State of Disembarkation

The main lacuna in the current SAR regime is a lack of specification of a default State of disembarkation or a mechanism for effectively determining such a State. The Salamis incident has highlighted this to no uncertain degree. While it is clear that priority must at all times be given to disembarkation, the SAR Convention regime does not effectively designate such a State.  Aside from the unacceptable consequences of delays in disembarkation, this uncertainty has major ramifications on the search and rescue regime and risks jeopardizing the entire system.

About the Author: Patricia Mallia BA, LLD, BCL (Oxon), PhD (IMLI) is Senior Lecturer and Head of the International Law Department at the University of Malta.