story has just occurred in late November 2018 involving 11 migrants rescued by
another fishing vessel from Santa Pola in Spain (Martín 2018).
The humanitarian and economic consequences behind all these cases have
prompted the intervention of IMO in an attempt to narrow down coastal States’
obligations and clarify the ambiguous issue of disembarkation. After lengthy discussion, SOLAS
9 and SAR
10 were amended in May 2004 in an almost identical
manner that reads as follows:
[Parties] shall co-ordinate and co-operate to ensure that masters of ships providing assistance
by embarking persons in distress at sea are released from their obligations with minimum
further deviation from the ships’ intended voyage, provided that releasing the master of the
ship from [these obligations] does not further endanger the safety of life at sea. [The party]
responsible for the search and rescue region in which such assistance is rendered shall
exercise primary responsibility for ensuring such coordination and co-operation occurs, so
that survivors assisted are disembarked from the assisting ship and delivered to a place of
safety, taking into account the particular circumstances of the case and guidelines developed
by the Organization. In these cases, the relevant [parties] shall arrange for such disembarkation to be effected as soon as reasonably practicable.
11
And yet, a clear statement on where rescued people should be disembarked is
missing. As can be read, the determination of this place is now entrusted to the
country responsible for the relevant search and rescue region. To this end, the Rescue
Co-ordination Centre (RCC) shall identify “the most appropriate place(s) for
disembarking persons found in distress at sea”.
12
Disembarkation would have to occur at a “place of safety” to the extent that
asylum-seekers and refugees might be within the rescued party. The IMO Guidelines
on the Treatment of Persons Rescued at Sea (IMO 2004) have provided some
guidance to this end, indicating that a place of safety is ‘a location where rescue
operations are considered to terminate’ because rescued persons’ safety and basic
human needs are covered. That may be a “place from which transportation arrangements can be made for the survivors’ next or final destination”. The latter is not
necessarily ashore, but it “may be aboard a rescue unit or other suitable vessel or
facility at sea that can serve as a place of safety until the survivors are disembarked to
their next destination”. Hence, place of safety and place of disembarkation do not
have to coincide. And more importantly, the fact that a place of safety can be another
ship robs this concept of its essential meaning (Miltner 2006).
RCCs have thus an essential role in determining where to discharge ships
rendering assistance to people in distress from their obligations towards them
without further delay. RCCs are, nevertheless, State bodies, thereby the amendments
to SOLAS and SAR open the door to State-driven migratory policies and contribute
9 IMO, Adoption of amendments to the International Convention for the Safety of Life at Sea, 1974,
as amended, Rs. MSC 155(78), MSC Doc. 78/26.Add.I, Annex 3 (May 20, 2004).
10 IMO, Adoption of amendments to the International Convention on Maritime Search and Rescue
1979, as amended, Resolution MSC Doc. 78/26.add.1, Annex 5 (May 20, 2004).
11 See SOLAS, Regulation 33-1-1, and SAR, Chapter 3.1.9.
12 See SAR, chapter 4.8.5.
Occupational Hazards in the Light of the Maritime Migration Challenge
81
another fishing vessel from Santa Pola in Spain (Martín 2018).
The humanitarian and economic consequences behind all these cases have
prompted the intervention of IMO in an attempt to narrow down coastal States’
obligations and clarify the ambiguous issue of disembarkation. After lengthy discussion, SOLAS
9 and SAR
10 were amended in May 2004 in an almost identical
manner that reads as follows:
[Parties] shall co-ordinate and co-operate to ensure that masters of ships providing assistance
by embarking persons in distress at sea are released from their obligations with minimum
further deviation from the ships’ intended voyage, provided that releasing the master of the
ship from [these obligations] does not further endanger the safety of life at sea. [The party]
responsible for the search and rescue region in which such assistance is rendered shall
exercise primary responsibility for ensuring such coordination and co-operation occurs, so
that survivors assisted are disembarked from the assisting ship and delivered to a place of
safety, taking into account the particular circumstances of the case and guidelines developed
by the Organization. In these cases, the relevant [parties] shall arrange for such disembarkation to be effected as soon as reasonably practicable.
11
And yet, a clear statement on where rescued people should be disembarked is
missing. As can be read, the determination of this place is now entrusted to the
country responsible for the relevant search and rescue region. To this end, the Rescue
Co-ordination Centre (RCC) shall identify “the most appropriate place(s) for
disembarking persons found in distress at sea”.
12
Disembarkation would have to occur at a “place of safety” to the extent that
asylum-seekers and refugees might be within the rescued party. The IMO Guidelines
on the Treatment of Persons Rescued at Sea (IMO 2004) have provided some
guidance to this end, indicating that a place of safety is ‘a location where rescue
operations are considered to terminate’ because rescued persons’ safety and basic
human needs are covered. That may be a “place from which transportation arrangements can be made for the survivors’ next or final destination”. The latter is not
necessarily ashore, but it “may be aboard a rescue unit or other suitable vessel or
facility at sea that can serve as a place of safety until the survivors are disembarked to
their next destination”. Hence, place of safety and place of disembarkation do not
have to coincide. And more importantly, the fact that a place of safety can be another
ship robs this concept of its essential meaning (Miltner 2006).
RCCs have thus an essential role in determining where to discharge ships
rendering assistance to people in distress from their obligations towards them
without further delay. RCCs are, nevertheless, State bodies, thereby the amendments
to SOLAS and SAR open the door to State-driven migratory policies and contribute
9 IMO, Adoption of amendments to the International Convention for the Safety of Life at Sea, 1974,
as amended, Rs. MSC 155(78), MSC Doc. 78/26.Add.I, Annex 3 (May 20, 2004).
10 IMO, Adoption of amendments to the International Convention on Maritime Search and Rescue
1979, as amended, Resolution MSC Doc. 78/26.add.1, Annex 5 (May 20, 2004).
11 See SOLAS, Regulation 33-1-1, and SAR, Chapter 3.1.9.
12 See SAR, chapter 4.8.5.
Occupational Hazards in the Light of the Maritime Migration Challenge
81