59
doesn’t actually violate those duties if the people are not yet present Italy. This posture does, however, definitely violate Italy’s duties regarding saving lives at sea.
The recognition of a formal duty to save lives at sea goes back to the sinking of
the HMS Titanic in 1912. Before then, the saving of lives on another ship was
entirely discretionary with the captain of any vessel near the endangered vessel. The
major maritime states came together in 1913 to draft the Convention for the Safety
of Life at Sea (SOLAS 1974). That treaty and subsequent legal developments, now
found in the UN Convention on the Law of the Sea, require nearby ships and coastal
states to save lives endangered at sea “with all possible speed” (UNCLOS 1982, art.
98(1)). Ships are excused from their duty to rescue only for lack of ability or necessity or if it creates an unreasonable risk. Furthermore, coastal states are required to
maintain and operate search and rescue operations (art. 98(2)). The duty then falls
on the rescuer to deliver the rescued persons to a place of safety—dry land.
There is no duty on the part of a coastal state to receive the rescued persons—
they could be delivered to another willing coastal state, so long as the delivery does
not amount to refoulement (1951 Convention, arts. 32, 33). The International
Convention on Maritime Search and Rescue does require coastal states to allow
rescuing ships to be relieved of their burdens with “a minimum of further deviation”
from their voyages (SAR Convention 1979, ch. 3.1.9). There is no ambiguity on
whether these duties apply to Italy when it is the nearest coastal state. Italy has
incorporated the life-saving duties into its Navigation Code (Code 1942, art. 498).
The Italian arrest of the captain of a ship rescuing migrants in danger at sea leaves
no doubt about Italy’s violation (Provoledo 2019a). While a judge ordered the
release of the captain after about a month in jail (Provoledo 2019b), that hardly
diminishes the violation.
7 Conclusions
Today’s refugee flows are not a new phenomenon, not even in terms of numbers.
Elaborate legal structures, including the 1951 Convention, EU laws and regulations,
and national laws, were created to deal with such problems. Nonetheless, many
states are systematically violating those structures (Horowitz 2019c; Pijnenburg
2018). In the face of populist demands for “sealing the borders,” those laws are
likely to remain unenforced.
For violations of a treaty, the usual remedy is “international responsibility”—the
violating state is to make amends to other states party to the treaty. Which state is
injured by a violation of the 1951 Convention? Not the state from which the wouldbe refugees are fleeing. That state doesn’t care what happens to people whom it
made flee. Other parties to the convention? If they care so much, they just take in the
refugees. So which state then will complain about the violation? Similarly, it is
abundantly clear that the EU lacks either the will or the means to enforce its refugee
policies. National laws, like Italy’s, can be changed by a “populist” regime—and no
doubt will be if a court sought to enforce the existing law, whether national
Refugees at Sea in a Hostile World
doesn’t actually violate those duties if the people are not yet present Italy. This posture does, however, definitely violate Italy’s duties regarding saving lives at sea.
The recognition of a formal duty to save lives at sea goes back to the sinking of
the HMS Titanic in 1912. Before then, the saving of lives on another ship was
entirely discretionary with the captain of any vessel near the endangered vessel. The
major maritime states came together in 1913 to draft the Convention for the Safety
of Life at Sea (SOLAS 1974). That treaty and subsequent legal developments, now
found in the UN Convention on the Law of the Sea, require nearby ships and coastal
states to save lives endangered at sea “with all possible speed” (UNCLOS 1982, art.
98(1)). Ships are excused from their duty to rescue only for lack of ability or necessity or if it creates an unreasonable risk. Furthermore, coastal states are required to
maintain and operate search and rescue operations (art. 98(2)). The duty then falls
on the rescuer to deliver the rescued persons to a place of safety—dry land.
There is no duty on the part of a coastal state to receive the rescued persons—
they could be delivered to another willing coastal state, so long as the delivery does
not amount to refoulement (1951 Convention, arts. 32, 33). The International
Convention on Maritime Search and Rescue does require coastal states to allow
rescuing ships to be relieved of their burdens with “a minimum of further deviation”
from their voyages (SAR Convention 1979, ch. 3.1.9). There is no ambiguity on
whether these duties apply to Italy when it is the nearest coastal state. Italy has
incorporated the life-saving duties into its Navigation Code (Code 1942, art. 498).
The Italian arrest of the captain of a ship rescuing migrants in danger at sea leaves
no doubt about Italy’s violation (Provoledo 2019a). While a judge ordered the
release of the captain after about a month in jail (Provoledo 2019b), that hardly
diminishes the violation.
7 Conclusions
Today’s refugee flows are not a new phenomenon, not even in terms of numbers.
Elaborate legal structures, including the 1951 Convention, EU laws and regulations,
and national laws, were created to deal with such problems. Nonetheless, many
states are systematically violating those structures (Horowitz 2019c; Pijnenburg
2018). In the face of populist demands for “sealing the borders,” those laws are
likely to remain unenforced.
For violations of a treaty, the usual remedy is “international responsibility”—the
violating state is to make amends to other states party to the treaty. Which state is
injured by a violation of the 1951 Convention? Not the state from which the wouldbe refugees are fleeing. That state doesn’t care what happens to people whom it
made flee. Other parties to the convention? If they care so much, they just take in the
refugees. So which state then will complain about the violation? Similarly, it is
abundantly clear that the EU lacks either the will or the means to enforce its refugee
policies. National laws, like Italy’s, can be changed by a “populist” regime—and no
doubt will be if a court sought to enforce the existing law, whether national
Refugees at Sea in a Hostile World