The norms examined by the present article rule the concept of protection within the special environment of the sea. They emanate from International Maritime Law and narrate the duty to search and rescue as a general principle of International Law [see Irini Papanicolopulu, p. 494], the violation of which gives rise to State responsibility for internationally wrongful acts. Nonetheless, this duty has been constantly breached during the last decade, a fact which holds especially true for the Aegean path of refuge. The Aegean waters have offered, namely, extensive paradigms as to the violation of general principles of international law by an entity that is per se responsible for search and rescue (“SAR”) operations, i.e., the State. Examples to this end may be found in the Turkish Coast Guard’s lack of will to rescue persons in distress at sea from attacks of masked men, intended to push them towards Turkish waters (see here, here, and here); the video recordings published at the end of February 2020, which display members of the Greek Coast Guard firing near rubber boats and attacking persons seeking assistance with sticks, in an attempt to repel them from Greek territorial waters; and the repetitious pushbacks and abandonment of rubber boats at sea by Greek authorities even after the publication of the said recordings.
Such paradigms expand the ground of adverse precedent for other entities bound by SAR obligations, that is to say, third States and commanders of merchant’s vessels. They create new norms of conduct that breach the common understanding as regards the duty to abide by the imperative rules of international law exhibited in this article.
The Customary Status of the Duty to Search and Rescue
The SAR duty has emerged from centuries of long-standing State practice, offering sufficiently enlightening examples that demonstrate its imperative character in all circumstances. For instance, a vessel simulating modern hospital ships (namely vessels assigned with the task of assisting, treating, and transporting wounded, sick and shipwrecked members of the armed forces at sea) named ‘Therapeia’ is believed to have followed ancient Greek warships in a naval battle, a fact which also holds true for its Roman counterpart Aesculapius [W.L. Mann, Medical Tactics in Naval Warfare (1926) 24 U.S. Naval Medical Bulletin 699, 707]. During the battle of Solent in 1545 boats were used by civilians to rescue survivors of the Mary Rose, while, a century later, the sinking of the Dutch vessel Vergulde Draeck was followed by immediate rescue operations. The establishment of associations such as the British Humane Society for the Recovery of Persons Apparently Drowned and the Humane Society of the Commonwealth of Massachusetts in Boston, dedicated exclusively to the salvage of persons at sea, indicates the recognition of the essential character of maritime SAR operations during the 18th century. In the 19th century, both State and private lifeboat institutions employed SAR vessels to assist persons in distress at sea [2017 ICRC Commentary, para. 2178]. During the last two centuries, the most distinct instances of public outcry regarding the failure of rescue at sea can be found in the 1988 case of the USS Dubuque’s captain, who underwent a martial trial and dismissal in this regard, and the 2007 example of Malta, which was extensively criticized for allowing a three-day clinging of 27 African on a vessel’s tuna pen. A more recent example concerns Italy, which was condemned by the UN Human Rights Committee for failing to assist more than 200 people at sea in 2013.
Additionally, both case law and State agreements attest to an established opinio juris concerning the duty’s customary status. Notably, the first trial in history to condemn the failure of salvage at sea dates back to the Athenian democracy of 406 B.C., when six of the victorious generals of the naval battle of Arginusae were executed for their failure to rescue the shipwrecked thereon. On the other hand, the legal character of the duty to rescue was established in modern history with the Eleanor (1809) [see Morison, p.16] and the Scaramanga v. Stamp (1880) cases. Most importantly in this regard, the adoption of the 1910 Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea and the 1914 Convention on Safety of Life at Sea, adopted after the disaster of the Titanic, consummated the official incorporation of the SAR duty in binding international legal texts.
During the last decades, the SAR duty is also examined by international literature [see Ratcovic, p. 155] and jurisprudence under the envelope of the non-derogable right to life, and is codified within multiple domestic legal instruments, verifying its fundamental character.
The Duty to Search and Rescue in Contemporary Treaty Law
Numerous international conventions require members to abide by their duty to assume or support SAR operations. Article 98 of the United Nations Convention on the Law of the Sea (“UNCLOS”) requires that, on the one hand, every State demands masters of vessels flying its flag to search and rescue persons and vessels in distress at sea (Paragraph 1), and, on the other hand, coastal states organize SAR services and cooperate to this end with neighbouring States (Paragraph 2). The International Convention on Safety of Life at Sea (“SOLAS”) also requires the arrangement of distress communication and coordination in the area of responsibility (Chapter V, Regulation 7). Moreover, it demands that masters of vessels receiving distress signals proceed with all speed to the assistance of persons in distress, and inform the appropriate rescue service of the situation, while also encouraging warships to do the same (Chapter V, Regulation 33). The fact that the distressed persons may be migrants is without prejudice to the duty to abide by these obligations.
However, the instrument that allows the above Articles’ application is the International Convention on Maritime Search and Rescue, which offers a complex and sophisticated system for the implementation of the SAR duty by coastal States [Munari, p. 68]. Specifically, the Convention divides the world’s oceans into 13 SAR zones, allowing Parties to determine their individual zones of responsibility; it instructs coastal States to adopt necessary arrangements for the provision of SAR services and assistance to persons in distress, regardless of their nationality or circumstances in which they are found (Annex, Chapter 2, Regulation 2.1.1–2.1.10); it promotes coordination of SAR services with adjacent States; and it encourages cooperation and mutual assistance between coordination centres, including in the form of vessels, aircraft, personnel, or equipment (Annex, Chapter 3, Regulation 3.1.7).
It is recognized today that the preceding Conventions express a principle of customary law [Ratcovic, p. 84]. This customary status has been certified by the International Law Commission (“ILC”) since 1956 [see Draft Articles Concerning the Law of the Sea, p. 281], a fact which was affirmed by the incorporation of the SAR duty in Article 12(1) of the 1958 Convention on the High Seas.
Exceptions to the Duty of Performance
Article 25 of the ILC draft Articles on State Responsibility for Internationally Wrongful Acts, reflecting the rebus sic stantibus doctrine, imposes an exemption to treaty implementation in cases of necessity, where the non-performance of the obligation is the “only way a State can safeguard an essential interest threatened by a grave and imminent peril.” Based solely on the Greek State’s official position, which depicts the arrival of immigrants by sea as an “illegal invasion” that threatened Greek territory, the attacks against immigrants in the Greek SAR area of responsibility would fall within the stated exception. However, rubber boats transporting asylum seekers in need of assistance at sea do not seem to pass the test of a grave and imminent peril deeming the duty of “lesser weight or urgency,” a condition set by the ILC Commentary on Article 25 of the Draft Articles (p. 80). Moreover, given the humanitarian character of the SAR duty, the invocation of such an exception would be fundamentally erroneous.
A form of the rebus sic stantibus doctrine also appears in the UNCLOS [Article 98(1)] and SOLAS Convention (Regulation 33.1), which explicitly exempt masters of vessels from the SAR duty when an attempt to rescue persons in distress endangers his vessel, its crew, and passengers. However, this derogation can only be justified if the master is unable to proceed to such assistance, or an effort to this end would be unreasonable or unnecessary under the existing conditions [see Papanicolopulu, p. 492].
While the issue of disembarkation to a place of safety has often puzzled coastal States and authorities, SAR obligations remain plain and undisputed: States, at all times, remain responsible for distressed persons within their SAR zones of responsibility. Parties must interpret and observe the mentioned Conventions in good faith, irrespective of whether they are equally observed by third States [Gabčíkovo-Nagymaros judgment, para. 114]. To this end, the Greek State must also respect and ensure that the principle of search and rescue, which takes flesh through Greece’s own historical pattern, is respected in its area of responsibility.
Alba Grembi is a Doctoral Candidate at the Faculty of Law, Chair of Public Law, especially Public International Law, European Law and Foreign Constitutional Law of the European University Viadrina, Frankfurt (Oder), Germany.