The MV Salamis and the State of Disembarkation at International Law: The Undefinable Goal
Introduction: The Relevant Facts
On August 4, 2013, a Liberian-registered tanker, the MV Salamis, was directed by the Maritime Rescue Coordination Centre (MRCC) Rome to rescue 102 African migrants from a boat in distress off the Libyan coast. The rescuees included four pregnant women, a five-month old baby, and an injured woman. MRCC Rome then instructed the shipmaster to return to Khoms in Libya which it considered to be the nearest port of safety. The shipmaster, however, proceeded on the planned route towards Malta in order to disembark the rescued migrants there. Malta denied entry to the vessel. Maltese armed forces distributed food, water, and medical aid to the migrants on board, determining that evacuations were unnecessary. An impasse followed as Malta refused to allow disembarkation, claiming that the shipmaster had ignored calls to turn back to Libya. On August 7th, Italy agreed to allow the migrants to disembark in Syracuse, ending the crisis on the Salamis. Yet legal issues regarding the disembarkation of migrants rescued on the high seas remain a point of contention between States, in particular due to the lack of clarity under international law governing search and rescue at sea.
Outline of the Legal Regime
The Meaning of Distress
In order to necessitate a rescue, the vessel in question must be in a state of distress. The International Convention on Maritime Search and Rescue (SAR Convention), describes distress as a âsituation wherein there is a reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance.â This definition arguably corresponds to the definition of distress under customary international law.
In its 2012 Report, the Parliamentary Committee of the Council of Europe (PACE) contemplated indicators of distress. That report found that whether a boatâs engine was operative or not was not necessarily determinative of the state of âdistress.â Other factors -- including how crowded a boat is, how great the distance from shore, or how many people on board showed clear signs of distress -- should be taken into account in the determination of whether or not a vessel is in distress. At no relevant time was it claimed that the Salamis was in distress after rescuing the migrants.
SAR Obligations and Disembarkation
The obligation to rescue those in distress at sea is enshrined inter alia in the 1982 Law of the Sea Convention (LOSC) and may be regarded as part of customary international law, binding all States. Aside from Article 98(1), however, there is a noticeable dearth of regulation in the LOSC relating to search and rescue operations. Further regulation has been fleshed out in two International Maritime Organization (IMO) Conventions, namely the SAR Convention and the International Convention on the Safety of Life at Sea (SOLAS).
International law does not impose an unequivocal duty on any State to accept disembarkation of rescued persons on its territory. The basic premise, following the Nicaragua judgment, is that a coastal State may regulate access to its ports by virtue of its sovereignty. This premise is limited, however, by vessels in distress requiring entry into a coastal stateâs port.
According SAR Convention, amended in 2004, a Stateâs SAR obligations include the primary responsibility to coordinate all search and rescue operations within its SAR zone such that rescuees are disembarked and are taken to a place of safety. It must also ensure that all rescued persons are disembarked at a place of safety within a reasonable time, and must release shipmasters who have rescued persons in distress at sea from their obligations in order to ensure minimum deviation from the shipâs intended voyage.
While Italy has accepted the 2004 amendments, Malta has formally objected to them. Malta has also indicated that it does not consider itself bound by the Circular of the IMOâs Facilitation Committee (FAL) of January 2009 entitled âPrinciples Relating to Administrative Procedures for Disembarking Persons Rescued at Sea.â Instead, Malta advocates the ânext port of callâ rule, mandating disembarkation at the nearest safe port to the site of the rescue, which in the Maltese SAR area is often a port in Italy. Italy, on the other hand, reads the 2004 amendments as requiring the State in whose SAR area the rescue is effected to disembark the rescues on its territory.
However, the SAR Convention only lays down an obligation of coordination and cooperation and does not necessarily entail an explicit duty to allow disembarkation in a particular port.
The âPlace of Safetyâ
The 2004 Guidelines define a âplace of safetyâ as the location where the rescue operation terminates. Here, the rescueesâ lives must no longer be under threat and their basic human needs (such as those relating to food, shelter, and medical exigencies) may be met.
That the âplace of safetyâ also includes factors other than immediate physical needs and extends to protection of human rights is evident both in the Guidelines on the Treatment of Persons Rescued at Sea (see paragraphs 5.1.6 and 6.17, noted below) and in the PACE Resolution 1821 (2011) which asserts that such place of safety must necessarily entail respect for fundamental rights and not only physical protection focused on the immediate alleviation of distress.
Article 33 of the 1951 Refugee Convention enunciates the principle of non-refoulement. While the Refugee Convention does not grant the right to asylum nor does it oblige a State to hear and process asylum claims, it does mandate that no asylum seekers be sent back to a place of persecution or to a non-party State to the Refugee Convention. The obligation is not limited territorially but operates wherever a State acts â even on the high seas and indeed, wherever a State exercises effective control over a vessel.
This was reaffirmed by the Grand Chamber of the European Court of Human Rights in Hirsi Jamaa and Others v. Italy, wherein it was unequivocally stated that, post-rescue, people are not to be pushed back to a country where they risk being treated in violation of Article 3 of the European Convention on Human Rights which protects against inhuman and degrading treatment or punishment. Through this judgment, the obligation of non-refoulement formally entered the realm of human rights law, and bolstered its potential status as a jus cogens norm.
What of Responsibility?
In the instance of the MV Salamis, Italy, as the State coordinating the rescue, directed the Master of the rescuing vessel to return to the Libyan port from which it had departed. Similarly, Malta took the position that the Master had breached international obligations by not seeking to disembark the rescuees at the closest safe port. However, it is submitted that these directions themselves breached international law since a State cannot cause the return of migrants to a place which does not constitute a place of safety. As was highlighted by, inter alia, the Grand Chamber of the European Court of Human Rights in Hirsi Jamaa v. Italy, Libya does not constitute a place of safety.
Return by official vessels or aircraft, or direction to private vessels to return individuals to a potential place of persecution, amounts to a push-back operation which violates international legal norms. Indeed, directing the Master of a rescuing vessel to return to Libya post-rescue would be tantamount to a de facto push-back. Both Italy and Malta gave such instruction.
Aside from its insistence that the Master return the rescued individuals to Libya, Maltaâs responsibility to disembark the migrants, if any, would exist if it were under a legal obligation to admit the Salamis for disembarkation of the rescuees on its territory. However, as the Salamis was not, at the relevant time, in a state of distress, Malta was not legally obliged to permit entry to port and subsequent disembarkation.
Malta could, however, arguably be held responsible for delaying the conclusion of the rescue operation by denying entry into port by permitting a delay in reaching a place of safety. A counter-argument may hold that since this obligation is framed in Article 3.1.9 of the Annex to the SAR Convention, which Malta is not party to, the State is not bound by this provision. It is submitted that this would be incorrect because the underlying purpose of the SAR Convention is rescue and delivery to a place of safety; such core obligations of a fundamental character cannot be evaded.
Italyâs initial position regarding responsibility was much the same as Maltaâs, insofar as directing the Master to return the rescuees to Libya and postponing the termination of the rescue operation. That it bore the primary responsibility in coordinating the rescue is clear and borne out by the paragraph 6.7 of the Guidelines. Italy has consistently interpreted the 2004 SAR amendments to obligate the State in whose SAR area the rescue is conducted to allow disembarkation of rescuees. On this reasoning therefore, Italy was obliged to disembark the individuals which the Salamis had rescued. Contrary to previous practice however, Italy advocated in the case of the Salamis, that the rescuees should be disembarked at the closest port.
This incident also contemplates the prospect of a responsibility vacuum: the responsible SAR authority, Libya, did not act. The current SAR regime leaves unresolved a situation where the SAR State does not act and remains unresponsive to distress calls, thereby failing to fulfill its duty to coordinate search and rescue operations. The only regulation that exists is the general duty at international law obliging all States to cooperate and assist in a rescue operation, regardless of whether they bear the primary responsibility as SAR State, or whether they bear the general obligation of Article 98(2) of the LOSC. Such regulation may not be effective enough especially when one considers the tragic consequences that may occur in the absence of timely assistance.
The Default State of Disembarkation
The main lacuna in the current SAR regime is a lack of specification of a default State of disembarkation or a mechanism for effectively determining such a State. The Salamis incident has highlighted this to no uncertain degree. While it is clear that priority must at all times be given to disembarkation, the SAR Convention regime does not effectively designate such a State. Aside from the unacceptable consequences of delays in disembarkation, this uncertainty has major ramifications on the search and rescue regime and risks jeopardizing the entire system.
About the Author: Patricia Mallia BA, LLD, BCL (Oxon), PhD (IMLI) is Senior Lecturer and Head of the International Law Department at the University of Malta.
 See, e.g., Kate A. Hoff (U.S.A.) v. United Mexican States 4 R. Intlâl Arb. Awards 444 (1929), http://legal.un.org/riaa/cases/vol_IV/444-449.pdf; The Eleanor (1809) 165 Eng. Rep. 1058, 135.
 International Convention on Maritime Search and Rescue Annex, ch. 1 Â¶1.1.13, Apr. 27, 1979, T.I.A.S. No. 11,093, 1405 U.N.T.S. 97 [hereinafter SAR Convention].
 Eur. Parl. Ass., Lives lost in the Mediterranean Sea: Who is Responsible? Â¶ 95, Doc. No. 12895 (2012), available at http://www.unhcr.org/refworld/docid/4f7be86b2.html.
 Convention on the Law of the Sea [LOSC], Dec. 10, 1982, 21 I.L.M. 1261, 1833 U.N.T.S. 3.
 Article 98(1) of the LOSC imposes a duty on shipmasters to render assistance to those in distress at sea, with the only permissible exception being that he must be able to conduct such rescue operation without âserious danger to the ship, the crew or the passengers.â Article 98(2) of the LOSC imposes the obligation on every coastal State to establish an adequate and effective search and rescue service.
 Only since 2004 has the act of disembarkation been expressly stated to be part of the rescue operation, following amendments to the SAR Convention, which came into force on July 1, 2006. See SAR Convention, supra note 2, at Annex Â¶22.214.171.124 (â[The coordinating State must] make the necessary arrangements in cooperation with other RCCs to identify the most appropriate place(s) for disembarking persons found in distress at sea.â).
 Military and Paramilitary Activities in and against Nicaragua (Nicar. v U.S.), 1986 I.C.J. 14, Â¶Â¶ 212â13 (June 27).
 Situations have arisen where, notwithstanding a distress situation, the port State raises the question of good order and peace of the port. For example, Italy has taken action regarding its declaration in 2011, regarding Lampedusa as an unsafe port.
 SAR Convention, supra note 2, at Annex Â¶ 3.1.9; see also International Convention on the Safety of Life at Sea [SOLAS], Nov. 1, 1974, 32 U.S.T. 47, 1184 U.N.T.S. 278, available at https://treaties.un.org/doc/Publication/UNTS/Volume%201184/volume-1184-I-18961-English.pdf (imposing the same obligation on Contracting Governments).
 Intâl Maritime Org. [IMO], Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, Â¶ 2.3, Doc. No. FAL.3/Circ.194 (2009), available at http://www.imo.org/OurWork/Facilitation/docs/FAL%20related%20nonmandatory%20instruments/FAL.3-Circ.194.pdf. An IMO Circular is a document which, although non-binding, is influential on the State parties.
 A SAR region is an âarea of defined dimensions associated with a rescue co-ordination centre within which search and rescue services are provided.â SAR Convention, supra note 2, at Annex Â¶ 1.3.4. Maltaâs SAR Area spans over 250,000 square kilometres, spanning from Tunisia to Greece.
 See Maritime Safety Committee, Guidelines on the Treatment of Persons Rescued at Sea, Â¶ 2.5, Res. No. MSC.167(78) (2004), available at http://www.imo.org/OurWork/Facilitation/IllegalMigrants/Documents/MSC.167(78).pdf. This leads to conflicting positions and regimes, such as that arising with the M/V Pinar-E which was rescued off Lampedusa in April 2009.
 See id. Â¶Â¶ 6.12â6.14.
 Eur. Parl. Ass., Res. 1821 Â¶ 9.5 (2011), available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta11/ERES1821.htm; see also Commission Proposal for a Regulation of the European Parliament and of the Council Establishing Rules for the Surveillance of the External Sea Borders in the Context of Operational Cooperation Coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Members States of the European Union, COM (2013) 197 final (Apr. 12, 2013) (replacing Council Decision 2010/262/EU, which provides for the protection of their fundamental human rights).
 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
 Article 33 relates to the prohibition of the expulsion or return (ârefoulerâ) of a refugee or asylum-seeker âin any manner whatsoever to the frontiers of territories where his life of freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.â
 The non-refoulement principle has its origins in international refugee law but has a core place in international human rights as well, with a wider application in this latter sphere.
 Hirsi Jamaa and Others v. Italy, App. No. 27765/09, Eur. Ct. H. R. (2012), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-109231.
 Id. at 65 (Albuquerque, J., concurring).
 See Update 8: Government Requests Ship Master to Return to Rescue Location, Times of Malta (Aug. 5, 2013), http://www.timesofmalta.com/articles/view/20130805/local/tanker-carrying-migrants.480832 (letter the Maltese Attorney Generalâs letter to the Salamis via its Agent).
 See also Abdi Ahmen and Others v. Malta, App No. 43985/13, Eur. Ct. H.R. (2013), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-127198.
 Push-back operations at sea refer to the actions whereby State vessels force a return of vessels carrying migrants to the place from which they departed, often, a place of persecution. These actions are prohibited in that they constitute collective expulsions and risk a breach of the non-refoulement principle. See, e.g., Submission by the Office of the United Nations High Commissioner for Refugees in the Case of Hirsi and Others v. Italy (Mar. 29, 2011), http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=4d92d2c22.
 A reading of the relevant official statements would prima facie indicate that Malta did indeed have such responsibility. See, e.g., Press Release, European Commission, Commissioner Cecilia MalmstrÃ¶m Urges the Maltese Authorities to Take Action (Aug. 6, 2013), http://europa.eu/rapid/press-release_MEMO-13-739_en.htm#PR_metaPressRelease_bottom; Press Release, European Council on Refugees and Exiles, ECRE Calls for the Safe Disembarkation of Persons on Board MV Salamis in Malta (Aug. 6, 2013) http://www.ecre.org/index.php?option=com_downloads&id=789; Press Release, Amnesty International, Migrants Rescued at Sea After Fleeing Libya Must be Allowed to Disembark in Malta (Aug. 6, 2013), http://www.amnesty.org/en/news/malta-boat-2013-08-06.
 This provision explains that the RCC first contacted is âresponsible for co-ordinating the case until the responsible RCC or other competent authority assumes responsibility.â
 Reminiscent of the âLeft-to-Dieâ boat of seventy-two persons leaving Libya on March 26, 2011 and drifting back on to Libyan shores fifteen days later with only nine survivors.