THE INTERNATIONAL SYSTEM OF SEARCH AND RESCUE (SAR)

The humanitarian law of the sea dealing with Search and Rescue is covered by various maritime laws, soft laws, and traditions, which are put into practice by various actors. The regime is monitored and formally developed by the International Maritime Organization (IMO) of the United Nations, but the organization has few enforcement capacities. It is the coastal states that have a leading role in realizing and implementing the regime: as members of IMO, and as signatories to crucial conventions on the law of the sea and of shipping, the coastal states are obliged to establish a functioning maritime SAR system. They are responsible for distress communication and co-ordination in their area of responsibility (SAR area) and for the rescue of persons in distress at sea around their coasts. These arrangements should include the establishment, operation and maintenance of such SAR facilities as are deemed practicable and necessary.

The international SAR regime relies on the naval security forces or the coast guards of  the coastal states. It also relies on the commitment of all seamen to the longstanding maritime tradition to rescue people in distress, and on their inclusion into the SAR system. All vessels at sea, including private commercial vessels, are part of the SAR system and have a duty to rescue. The United Nations Convention on the Law of the Sea of 1982 (UNCLOS) codifies this commitment: ‘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 . . . to render assistance to any person found at sea in danger of being lost . . .’.

The International Convention on Maritime Search and Rescue (SAR-Convention) of 1979 requires the state parties to ‘. . . ensure that assistance be provided to any person in distress at sea . . . regardless of the nationality or status of such a person or the circumstances in which that person is found’ and to ‘[. . .] provide for their initial medical or other needs, and deliver them to a place of safety’.

Also, the captain of every vessel at sea has the duty to provide aid to all people in distress without distinction of status or conditions and, if possible, to inform the responsible SAR authorities on the SAR action.

In Germany, Australia, Norway, the UK and the United States, ship’s captains can be accused of denial of assistance under national law if they don’t rescue persons in distress.

The international SAR system is built on the principle that all individuals at sea have to assist people in distress. For this reason, the IMO decided to amend the SAR Convention, which is  crucial for the international SAR-system. The amendments were adopted by the Maritime Safety Committee (MSC) of the IMO on 20 May 2004 and came into force on 1 July 2006.

In order to make the responsibilities of coastal states more transparent, the new rules determine that the state responsible for a certain SAR-area is also responsible for finding a place of safety to disembark shipwrecked people. It is now clearly regulated that each particular SAR-state needs to provide a harbour on its own territory where people can be safely disembarked or has to negotiate with other states to find such a harbour. Where a person can be disembarked, as well as the definition of a place of safety, are other important aspects. This highlights how closely the humanitarian law of the sea and refugee law are interconnected when it comes to migration at sea. Usually, the closest port of call might be seen as a place of safety. However, if boat migrants are potentially in need of asylum protection, this has to be taken into consideration. In the Guidelines on the Treatment of  Persons Rescued at Sea (Resolution MSC. 167(78) (2004)), which were adopted together with the SAR and SOLAS-amendments, it is stated that: ‘A place of safety is a location where rescue operations are considered to terminate, and where: the survivors’ safety  or life  is no longer threatened; basic human needs (such as food, shelter and medical needs) can be met; and transportation arrangements can be made for the survivors’ next or final destination’.

As described above, the duty of rendering assistance is clear in cases of distress at sea. The SAR Convention defines  the term 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’. However, this definition leaves room for interpretations in favour of non-intervention. Customarily, ship masters are expected to be best placed to exercise their own judgment and reach an autonomous decision on rescues.

When is a boat in distress and when do passengers have to be saved? The controversy regarding these questions of when to rescue and when not to rescue people highlights how heated the negotiation process over irregular migration, border protection and the humanitarian law of the sea has become in the Mediterranean Sea.