Visiting Scholar at Columbia Law School, Research Fellow at University of Cagliari (Italy). She holds a Maîtrise en Droit International from University Paris I and a PhD in International Law from the University of Milan. In 2010 she gave a series of lectures at the Academy of European Law (EUI) on “EU immigration policy and international protection: EU joint border control and international obligations”.
On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa at the end of March 2011. After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. The survivors reported that during the journey they used their satellite phone, which later ran out of battery, to call an Eritrean priest in Rome for help who then alerted the Italian Coast Guard. They also said that a helicopter overflew them and threw water and biscuits down onto their boat. An aircraft carrier sighted them thereafter. No one rescued them.
This tragedy once again demonstrates the failure of states in implementing their duty to render assistance at sea, as provided by Article 98 of the United Nations Convention on the Law of the Sea, and by the Search and Rescue Convention and the Safety of Life at Sea Convention. It also highlights the lack of coordination among Mediterranean states. In this brief note I wish to cast this incident in a legal perspective. I will spell out the legal duty to render assistance at sea, explain the situation in the Mediterranean – drawing particular attention to the lack of mechanisms for coordination and cooperation – and, lastly, I will highlight how this disturbing condition results is a result of the immigration policies of the individual states involved.
The content of the duty to render assistance at sea
After the impact of the Indochinese crisis in the Seventies and in the wake of instances of non-rescue at sea, states adopted the Search and Rescue Convention (SAR Convention) in 1979 in the framework of the International Maritime Organization (IMO). The Convention aims to create an international system for coordinating rescue operations and for guaranteeing their effectiveness, efficiency and safety. States parties are to exercise SAR services in the area under their responsibility and are invited to conclude SAR agreements with neighbouring States to regulate and coordinate operations and rescue services in the maritime zone designated in the agreement. It is important to note that undertaking rescue operations does not exhaust the duty to render assistance – a duty now codified in Article 98 of the Law of the Sea Convention, but already existing as part of earlier treaty law and considered a principle of customary law. This duty is only fully met when the rescued persons can disembark in a place of safety. Read the rest of this entry…