Published: December 04, 2019
Under international law, ships have a clear duty to help those in distress at sea. But when the ships are run by non-governmental organizations, and the people in distress are migrants, there are very often questions about what is 'the right thing to do'. The German news agency epd asked a maritime law expert for some answers.
The private rescue boat Ocean Viking was allowed to disembark migrants in Italy on Wednesday nearly a week after it had picked them up off the coast of Libya as they were trying to cross the Mediterranean to Europe.
The groups that operate the Ocean Viking, SOS Mediterranee and Doctors Without Borders (MSF), regularly face accusations that they are engaging in people smuggling, even acting as a "taxi service" for migrants to Europe.
Nele Matz-Lück, a professor of international law focusing on maritime law at the University of Kiel, spoke to the German news agency epd about what Maritime Search and Rescue means, in legal terms.
epd: When is a ship or boat considered to be in distress?
Matz-Lück: Distress at sea doesn't just arise when people are in the water and in danger of drowning, but when a person, the ship itself or a valuable cargo is in imminent danger. So it doesn't have to be bad weather, but at the same time it has to be more than just a matter of having one life jacket too few. Distress at sea arises, for example, when a ship is completely overloaded, so that one small wave or movement on board is enough to make it capsize. So with the boats that cross the Mediterranean with migrants and refugees, you almost have to consider them all as cases of distress at sea, because they are mostly not seaworthy, and that means there is a real and present danger.
epd: Who decides whether it is a case of distress at sea?
Matz-Lück: Normally the captain of the ship (InfoMigrants: 'shipmaster') in question decides that. However, the boats of migrants and refugees usually don't have a captain. So then it has to be the captain of any other nearby ship that can come to the rescue, that has to make the judgement. That's according to the International Law for the Safety of Life at Sea. At the same time, the Law of the Sea doesn't describe precise criteria, such as the distance from land. The captain has to be given this discretion. Because the sea is a dangerous place for people. In some cases, reconnaissance aircraft over the Mediterranean will alert control centers on land.
epd: What are the obligations of the captain of the other (search and rescue) ship?
He has to rescue the people in distress at sea and take them to a safe place. Again, however, the Law of the Sea isn't clear about what exactly a "safe place" means. So the captain has to use discretion here, too. It does have to be more than just any patch of dry land: It has to be a place where there is no immediate danger of persecution, incarceration or torture. Libya is no such safe place. These obligations are independent of the status of the people that have been rescued, for example if they are refugees or migrants without the right to enter Europe. It also makes no difference if they have deliberately placed themselves in a situation of distress at sea.