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Home Articles posted by Efthymios Papastavridis

“Rescuing ‘Boat People’ in the Mediterranean Sea: The Responsibility of States under the Law of the Sea”.

Published on May 31, 2011        Author: 

Dr. Efthymios Papastavridis, LLM(Athens), LLM(UCL), PhD (UCL) is Adjunct Lecturer, University of Thrace, Faculty of Law and Research Fellow, Academy of Athens, Greece [papastavridis {at} Academyofathens(.)gr].

1. Introductory Remarks

According to a very recent article by The Guardian, ‘a boat carrying 72 passengers, including several women, young children and political refugees, ran into trouble in late March after leaving Tripoli for the Italian island of Lampedusa. Despite alarms being raised with the Italian coastguard and the boat making contact with a military helicopter and a warship, no rescue effort was attempted. All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days.’

The aforementioned incident, unfortunately, is not the only one that has occurred in the troubled waters of the Mediterranean Sea in recent years; Cap Anamur or the Pinar are only a couple of cases, in which the legal regime of search and rescue at sea has been seriously questioned. Therefore, a propos this incident as well as in view of the increasing number of “boat people” fleeing from North Africa in unseaworthy vessels, it is well worth making certain short comments with regard to the alleged violation of the law of the sea and the concomitant responsibility of the States involved.

Assuming that both the facts about the location of the vessel and the allegations concerning the inertia displayed by NATO units reported in the above-mentioned article by The Guardian are accurate, the following preliminary remarks are in order: first, since the distress call to the Italian authorities was made while the boat was on high seas (reportedly 60 n.m. off Libyan coast), the relevant applicable law is framed by the rules concerning search and rescue on the high seas. Secondly, it should be ascertained from the outset that NATO as such does not incur responsibility for the alleged internationally wrongful acts. On the one hand, only States are parties to the relevant treaties [with the sole exception of European Union, which is party to the UN Convention on the Law of the Sea (LOSC, 1982), albeit only in respect of matters relating to which competence has been transferred to it by Member States (Articles 4 and 5 of Annex IX of LOSC and EC’s Declaration, 1 April 1998;);. On the other, NATO is not bound by the corresponding rules of customary international law, since it is far beyond the remit of NATO to provide search and rescue assistance to vessels on the high seas. Thus, only Member States participating in the Operation Unified Protector against Libya might have incurred responsibility for the breach of the rules in question.

2. Obligations for Flag and Coastal States under the Law of the Sea

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