The International Maritime Organization (IMO)
IMO is the specialized agency responsible for improving maritime safety and preventing pollution from ships. In 1948 a Convention establishing the IMO was adopted at an international conference in Geneva and eventually entered into force in 1958. The IMO first convened in 1959. Today, the agency, now based in London, has 167 Member States and three Associate Members. It pursues its main task of developing and maintaining a comprehensive regulatory framework for shipping, including maritime safety, environmental concerns, and legal-technical cooperation primarily through the promotion of international treaties, e.g. the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, and the International Convention on Maritime Search and Rescue. The IMO is headed by a Council of 40, elected by an Assembly comprising all Member States. Other main organs include the Maritime Safety Committee, Legal Committee, Marine Environment Committee, Technical Co-operation Committee, and a Secretariat.
||Keywords: refugees, Law of the Sea, piracy, war on terrorism, state sovereignty
Recent developments; UNHCR and IMO Address Plight of Refugees at Sea, New Threats Loom
I. Peril at Sea
In recent years the number of people attempting to flee from their country by crossing to Europe, especially from the Mediterranean and North Africa, has been steadily high and constitutes a major concern in regard to safety at sea in general, and protection of the individuals involved in particular. While a majority of those undertaking such voyages in often small and unsuitable craft may be economic migrants, a certain number of people traveling irregularly may be (legitimate) refugees and asylum seekers. Helping to alleviate the plight of such persons constitutes the main mandate of the UNHCR. According to Article 1 of the 1951 Refugee Convention and its 1967 Protocol, a refugee is a person who, "[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . . ."
Furthermore, Article 33 states that "[n]o Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened . . . . Article 98 (1) of the 1982 Convention on the Law of the Sea on the other hand provides that
Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew, or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him . . . .
Likewise, the Safety of Life at Sea Convention (SOLAS) provides that "the master of a ship at sea which is in a position to be able to provide assistance, on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance . . . ."
While international law thus placed a far reaching duty to rescue (cf. "any person") on the captain of a vessel, it was not matched by an equally definite obligation on the part of the coastal state, which was only required to "promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and . . . cooperate with neighboring States for this purpose"; or to "ensure that necessary arrangements are made for the provision of adequate search and rescue services . . . ."
As the responsibility of the master of a ship to provide assistance often was not met by an adequate, corresponding obligation of states to receive the persons rescued at sea, disputes often arose in regard to disembarking refugees and asylum seekers. Existing law reduced incentives for the ship's master to fulfill his obligations, thus putting the life of those in distress even further at risk. In an effort to alleviate the hardship of the people caught in the crossfire of diverging interests, the UNHCR joined forces with the IMO to improve existing treaties governing the rescue regime. Among the most significant resulting amendments are the specific requirement that the "[c]ontracting Governments 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 . . . ." Furthermore, it shall be the primary obligation of the government within whose region such assistance is rendered to ensure that survivors "are disembarked from the assisting ship and delivered to a place of safety" and "to arrange for such disembarkation to be effected as soon as reasonably practicable."
II. New Old Threats
These amendments to the existing rescue regime of maritime law are generally positive as they strive to better coordinate rescue efforts and place clearer obligations on coastal states to lift the burden on ship masters by disembarking the refugees and asylum seekers, irrespective of whether they eventually may bring legitimate claims as to their status. In the midst of an emergency situation, verifying such status questions must not be a primary consideration.
The problem with the amended rules is that the enforcement regime is still rather weak in regard to states that nevertheless refuse to disembark people and with respect to the "new old threat" of piracy. Pirate attacks on merchant and private vessels, in particular off the coast of Somalia, are on the rise again, causing shipping companies to advise the masters of their ships to keep their vessels at a minimum distance of 200 nautical miles from the shore and prompting the IMO to repeatedly bring the issue to the attention of the UN Secretary-General. The main objective is to get the UN Security Council to "request the Transitional Federal Government of Somalia to take action . . . including consenting to ships . . . entering its country's territorial waters when engaging in operations against pirates or suspected pirates and armed robbers endangering the safety of life at sea . . . ." By advising shipping companies basically to stay far away from strife-ridden areas, the chances of ships coming to the rescue of potential refugees will be further reduced, and particularly in regions where, due to ongoing violent conflict, the number of people fleeing their country in unsuitable craft is increased. On the other hand, asking a government, even a transitional one, to renounce certain sovereign rights over its territorial waters may, no matter how well-founded the request and unpopular the government, have a bearing on other cases of requesting a waiver of rights in the name of the fight against international crimes, or the war on terrorism.
Thus, what makes the plight of refugees at sea so intricate, is that it involves three separate, yet entangled, normative problems: (1) the right of the individual refugee to be rescued versus the safety of the crew of the assisting vessel; (2) the duty of the assisting vessel's master to embark those in peril at sea versus the obligation of the coastal state to aid in disembarking the refugees and asylum seekers; and (3) the core objective of arresting and prosecuting perpetrators of international crimes versus the fundamental principle of state sovereignty.
Trying to find the right balance in weighing each of these obligations against the other is never an easy task where conflicting, yet legitimate claims are at issue. Satisfactorily untying this knot may take more than a convention.
Tom Syring, Lecturer in International Law and Constitutional Theory, University of Oslo.
United Nations Convention Relating to the Status of Refugees, July 28, 1951, entered into force on April 22, 1954, 189 United Nations Treaty Series 150; in the following Refugee Convention.
United Nations Protocol Relating to the Status of Refugees of 31 January 1967, entered into force on October 4, 1967, 606 United Nations Treaty Series 267.
Article 33 (1), Refugee Convention.
United Nations Convention on the Law of the Sea, December 10, 1982, entered into force on November 16, 1994, 1833 United Nations Treaty Series 397; in the following UNCLOS.
International Convention for the Safety of Life at Sea (SOLAS), November 1, 1974, entered into force on May 25, 1980, 1184 United Nations Treaties Series 3.
Ibid., Regulation V/33.1.
Article 98 (2), UNCLOS.
Cf. Chapter 2.1.1., International Convention on Maritime Search and Rescue (SAR) of April 27, 1979, entered into force on May 25, 1980. 1403 United Nations Treaty Series
Amendments to SOLAS, as amended by IMO Doc. Res. MSC 153 (78), Annex 3, adopted on May 20, 2004, entered into force on July 1, 2006, Regulation V/33.1.1.
Ibid. Similar provisions are now also included in the Amendments to SAR, as amended by IMO Doc. Res. MSC 155 (78), Annex 5, adopted on May 20, 2004, entered into force on July 1, 2006, cf. the new provision in 3.1.9, SAR.
According to statistics provided by the International Maritime Bureau, 13 ships have been seized by pirates so far in 2007, with a total of 152 crew members taken hostage.
Cf., e.g. the statement made by the Norwegian Association of Shipping Companies ('Norges Rederiforbund') in an article in Aftenposten, August 20, 2007, p. 5.
'Piracy off the Somalia coast', Statement, IMO Council, 98th Session, held in London, on June 25-29, 2007.
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