Abstract
This article provides a broad overview of several international law and policy issues that search and rescue (SAR) authorities worldwide should consider. First, the article will discuss the global SAR system’s international framework and organization implemented by coastal states. While not perfect, the global SAR system provides an important basis on which coastal states can build cooperative relationships to enable them to conduct this important lifesaving mission more effectively. Second, this article will review the SAR responsibilities and international legal requirements placed on shipmasters and coastal states as they work together in coordinating and conducting maritime SAR operations. In addition, this section also will briefly discuss the tragic issue of mixed migration by sea from a SAR perspective. Third, this article will address two additional SAR-specific issues that legal advisers and policy makers need to consider: the responsibilities and requirements of a ship or aircraft when conducting a rescue operation within another coastal state’s territorial sea and the issue of forcibly evacuating a person from a vessel when doing so is, in the judgment of the SAR responders on scene, the only way to save the person’s life. May SAR responders use force to compel a person to abandon his vessel? What type of force should be considered? The discussion of each of these unique operational issues will provide points to consider from both policy and international law perspectives.
This article was originally published in Naval War College Review, Winter 2017, Vol. 70, No. 1.
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Notes
- 1.
Gage (1897), pp. 5–10.
- 2.
SAR Convention (1979); number of contracting states 2017: 106.
- 3.
Ibid.
- 4.
Jones (2013).
- 5.
These international conventions will be discussed in greater detail later in this chapter.
- 6.
The annex to the SAR Convention (1979) mandates (paragraph 2.1.2) that “Parties shall either individually or, if appropriate, in co-operation with other States, establish the following basic elements of a search and rescue service: (1) legal framework; (2) assignment of a responsible authority; (3) organization of available resources; (4) communication facilities; (5) co-ordination and operational functions; and (6) processes to improve the service including planning, domestic and international co-operative relationships and training. Parties shall, as far as practicable, follow relevant minimum standards and guidelines developed by the Organization.”
- 7.
The annex to the SAR Convention (1979) provides (paragraphs 1.3.4, 1.3.5, and 1.3.6, respectively) the following definitions: “Search and Rescue Region: An area of defined dimensions associated with a rescue co-ordination centre within which search and rescue services are provided”; “Rescue co-ordination centre: A unit responsible for promoting efficient organization of search and rescue services and for co-ordinating the conduct of search and rescue operations within a search and rescue region”; “Rescue sub-center: A unit subordinate to a rescue co-ordination center established to complement the latter according to particular provisions of the responsible authorities.”
- 8.
Convention on International Civil Aviation (1944).
- 9.
IAMSAR manual (2013).
- 10.
The annex to the SAR Convention (1979) defines (paragraph 1.3.3) search and rescue service as “[t]he performance of distress monitoring, communication, co-ordination and search and rescue functions, including provision of medical advice, initial medical assistance, or medical evacuation, through the use of public and private resources including co-operating aircraft, vessels and other craft and installations.”
- 11.
IAMSAR manual (2013), vol. 1, p. v.
- 12.
Ibid., pp. 1–1 (paragraph 1.1.3). It should also be noted (paragraph 1.3.1) that SAR services can be established by individual states or regionally: “These services can be provided by States individually establishing effective national SAR organizations, or by establishing a SAR organization jointly with one or more other States.”
- 13.
Ibid., p. xiii. The SC is defined as “[o]ne or more persons or agencies within an Administration with overall responsibility for establishing and providing SAR services and ensuring that planning for those services is properly co-ordinated.” Volume 2 goes on to state (paragraph 1.2.2) that “SCs have the overall responsibility for establishing, staffing, equipping, and managing the SAR system, including providing appropriate legal and funding support, establishing RCCs and rescue sub-centres (RSCs), providing or arranging for SAR facilities, co-ordinating SAR training, and developing SAR policies. SCs are the top level SAR managers; each State normally will have one or more persons or agencies for whom this designation may be appropriate.”
- 14.
Ibid., vol. 1, p. xiii. The SMC is defined (paragraph 1.2.3) as “[t]he official temporarily assigned to co-ordinate response to an actual or apparent distress situation.” See also ibid., vol. 2, pp. 1–2.
- 15.
Ibid., vol. 1, p. xii. The OSC is defined (paragraph 1.2.4) as “[a] person designated to co-ordinate search and rescue operations within a specified area.” See also ibid., vol. 2, pp. 1–3.
- 16.
Ibid., vol. 1, p. xi. The ACO is defined (paragraph 1.2.5) as “[a] person or team who co-ordinates the involvement of multiple aircraft in SAR operations in support of the SAR mission co-ordinator and on-scene co-ordinator.” See also ibid., vol. 2, pp. 1–3.
- 17.
Comparable to the annex to the SAR Convention (1979), the annex 12 of the Chicago Convention (1944) (Search and Rescue) provides the framework for contracting states to implement an aeronautical global SAR system. The SAR system under the Chicago Convention (1944) also has aeronautical SAR regions worldwide, in which contracting states are responsible for coordinating SAR operations. This global aeronautical SAR system complements, or stands in parallel to, the maritime system.
- 18.
The annex to the SAR Convention (1979) states (paragraph 2.1.4): “Each search and rescue region shall be established by agreement among Parties concerned. The Secretary-General shall be notified of such agreements.”
- 19.
SAR agreements can be bilateral or multilateral. For example, in 2011, the eight Arctic nations (Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States) concluded an agreement that delimited the entire Arctic region into aeronautical (Chicago Convention (1944)) and maritime (SAR Convention (1979)) SAR regions between the parties. It also formalized SAR cooperation and coordination among the eight states. Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011).
- 20.
IAMSAR manual (2013), vol. 1, pp. 1–5 (paragraph 1.6.3).
- 21.
See note 11 for a definition of search and rescue service. The coastal state is responsible for the coordination and conduct of SAR operations within its SAR region.
- 22.
The annex to the SAR Convention (1979) (paragraph 2.1.7) is very clear on this point: “The delimitation of search and rescue regions is not related to and shall not prejudice the delimitation of any boundary between States.” The IAMSAR manual (2013), vol. 1, pp. 2–8 (paragraph 2.3.15[e]) goes on to state that “[a]n SRR [SAR region] is established solely to ensure that primary responsibility for co-ordinating SAR services for that geographic area is assumed by some State. SRR limits should not be viewed as barriers to assisting persons in distress…. In this respect co-operation between States, their RCCs and their SAR services should be as close as possible.”
- 23.
The High Seas Convention (1958), article 1, defines high seas as “all parts of the sea that are not included in the territorial sea or in the internal waters of a State.”; number of parties 2017: 77. UNCLOS (1982), which replaced the High Seas Convention (1958), states in article 86: “The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” UNCLOS (1982) entered into force: 16 November 1994; number of parties 2017: 167.
- 24.
The annex to the SAR Convention (1979) (paragraph 2.1.9) states: “Parties having accepted responsibility to provide search and rescue services for a specified area shall use search and rescue units and other available facilities for providing assistance to a person who is, or appears to be, in distress at sea.” (See note 59 for the definition of SAR facilities and SAR units.) The annex to the SAR Convention (1979) allows for the use of any resources to save lives at sea. The national administration must be able to coordinate the response to persons in distress though the RCC/RSC.
- 25.
The IAMSAR manual (2013), vol. 1, paragraph 2.1.1, provides an excellent overview when describing SAR as an international system: “The SAR system, like any other system, has individual components but must work together to provide the overall service. Development of a SAR system typically involves establishment of one or more SRRs, along with capabilities to receive alerts and to co-ordinate and provide SAR services within each SRR. Each SRR is associated with an RCC. For aeronautical purposes, SRRs often coincide with flight information regions (FIRs). The goal of ICAO and IMO conventions relating to SAR is to establish a global SAR system. Operationally, the global SAR system relies upon States to establish their national SAR systems and then integrate provision of their services with other States for world-wide coverage.”
- 26.
Ibid., pp. 2–3, paragraph 2.3.1.
- 27.
The annex to the SAR Convention (1979) (paragraph 2.3.1) states: “Parties shall individually or in co-operation with other States establish rescue co-ordination centres for their search and rescue services and such rescue sub-centres as they consider appropriate.” It should be noted that under the Chicago Convention (1944)’s annex 12, the global aeronautical SAR system also requires contracting states to make provision for an aeronautical RCC (ARCC); one ARCC is assigned for each aeronautical SAR region. By comparison, under the global maritime SAR system, a maritime RCC (MRCC) coordinates maritime SAR operations in a designated maritime SAR region. When nations implement a national SAR system in which a particular RCC coordinates both aeronautical and maritime SAR, it is known as a joint RCC. Where a coastal state has instituted both ARCCs and MRCCs, aeronautical and maritime SAR authorities must work closely together to ensure the various types of SAR operations with overlapping aeronautical and maritime SAR regions are effectively coordinated. When considering the coordination between aeronautical and maritime SAR services, the annex to the SAR Convention (1979) (paragraph 2.4.1) states: “Parties shall ensure the closest practicable co-ordination between maritime and aeronautical services so as to provide for the most effective and efficient search and rescue services in and over their search and rescue regions.” This same imperative is established as a recommendation in the Chicago Convention (1944)’s annex 12, paragraph 3.2.2.
- 28.
IAMSAR manual (2013), vol. 1, pp. 2-4–2-5.
- 29.
Ibid., p. xiv. Search-and-rescue subregion is defined as “[a] specified area within a search and rescue region associated with a rescue sub-centre.” For example, the U.S. Coast Guard maintains two RSCs (RSC San Juan, Puerto Rico, and RSC Guam) that coordinate SAR operations with their respective SRSs.
- 30.
Ibid., pp. 2–9.
- 31.
The facts portrayed in this vignette are known by the author, who attests to their accuracy. The vignette is presented for consideration of the legal and policy issues involved.
- 32.
Oxford Dictionary , s.v. “international law,” www.oxforddictionaries.com/: “A body of rules established by custom or treaty and recognized by nations as binding in their relations with one another.” Commander’s Handbook (2007), p. 20 further describes international law as “that body of rules that nations consider binding in their relations with one another. International law derives from the practice of nations in the international arena and from international agreements. International law provides stability in international relations and an expectation that certain acts or omissions will effect predictable consequences. If one nation violates the law, it may expect that others will reciprocate. Consequently, failure to comply with international law ordinarily involves greater political and economic costs than does observance. In short, nations comply with international law because it is in their interest to do so. Like most rules of conduct, international law is in a continual state of development and change.”
- 33.
The IMO website explains that the SOLAS Convention in its successive forms is generally regarded as the most important of all international treaties concerning the safety of merchant ships. The first version was adopted in 1914, in response to the Titanic disaster, the second in 1929, the third in 1948, and the fourth in 1960. The 1974 version includes the tacit acceptance procedure—which provides that an amendment shall enter into force on a specified date unless, before that date, objections to the amendment are received from an agreed number of Parties. As a result the 1974 Convention has been updated and amended on numerous occasions. The Convention in force today [SOLAS (1974)] is sometimes referred to as amended.
- 34.
SOLAS (1974), p. 268. SOLAS (1974) applies to vessels on international voyages, commercial vessels in particular. SOLAS (1974) allows exceptions for warships (and others) but encourages these ships to act in a manner consistent with its provisions. Entered into force: 25 May 1980; number of contracting states 2017: 162.
- 35.
UNCLOS (1982), article 98.
- 36.
Commander’s Handbook (2007), pp. 1–1, states: “Although the United States is not a party to the 1982 LOS Convention, it considers the navigation and overflight provisions therein reflective of customary international law and thus acts in accordance with the 1982 LOS Convention, except for the deep seabed mining provisions.” Additionally, the duty for U.S. shipmasters to render assistance is stipulated in the United States Code (USC); 46 USC § 2304(a)(1) states: “A master or individual in charge of a vessel shall render assistance to any individual found at sea in danger of being lost, so far as the master or individual in charge can do so without serious danger to the master’s or individual’s vessel or individuals on board.” Additionally, “A master or individual violating this section shall be fined not more than $1,000, imprisoned for not more than 2 years, or both.” However, as further stated in 46 USC § 2304, this obligation does not apply to U.S. warships.
- 37.
Salvage Convention (1989); entered into force: 14 July 1996; number of contracting states 2017: 67.
- 38.
E.g., the Salvage Convention (1989), article 10, requires a shipmaster to render assistance “so far as he can without serious danger to his vessel, her crew and her passengers.” This is also stipulated in SOLAS (1974), chapter V, regulation 33, paragraph 1, quoted in the text above, where the shipmaster must make a determination about whether he can render assistance to a person in distress.
- 39.
E.g., the annex to the SAR Convention (1979) (paragraph 4.8.1) states: “Search and rescue operations shall continue, when practicable, until all reasonable hope of rescuing survivors has passed” (emphasis added). According to paragraph 4.8.4, “If a search and rescue operation on-scene becomes impracticable and the rescue co-ordination centre or rescue sub-centre concludes that survivors might still be alive, the centre may temporarily suspend the on-scene activities pending further developments, and shall promptly so inform any authority, facility or service which has been activated or notified” (emphasis added).
- 40.
SOLAS (1974), chapter V, regulation 33, paragraph 6, states: “Masters of ships who have embarked persons in distress shall treat them with humanity, within the capabilities and limitations of the ship.”
- 41.
Guidelines on the Treatment of Persons Rescued at Sea (2004) provide general guidance (paragraph 5.1) for shipmasters. “SAR services throughout the world depend on ships at sea to assist persons in distress. It is impossible to arrange SAR services that depend totally upon dedicated shore-based rescue units to provide timely assistance to all persons in distress at sea. Shipmasters have certain duties that must be carried out in order to provide for safety of life at sea, preserve the integrity of global SAR services of which they are part, and to comply with humanitarian and legal obligations” (emphasis added).
- 42.
UNCLOS (1982), article 29, defines warship as “a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” See also Commander’s Handbook (2007), p. 2-1.
- 43.
SOLAS (1974), chapter I, regulation 3, lists the following classes of ships that are exempted from complying with the regulations unless specifically stated in a particular regulation: (1) ships of war and troopships; (2) cargo ships of less than 500 gross tons; (3) ships not propelled by mechanical means; (4) wooden ships of primitive build; (5) pleasure yachts not engaged in trade; and (6) fishing vessels. Additionally, the Salvage Convention (1989), article 4, details the nonapplicability of the convention to “State-owned vessels”: “1. Without prejudice to article 5, this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognized principles of international law unless that State decides otherwise. 2. Where a State Party decides to apply the Convention to its warships or other vessels described in paragraph 1, it shall notify the Secretary-General thereof specifying the terms and conditions of such application.”
- 44.
In Case Hasan v. United States of America (2010), the U.S. District Court for the Eastern District of Virginia, in its opinion and order, provided an overview of customary international law: “[the] body of rules that nations in the international community universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” In addition, the Statute of the International Court of Justice (1945), article 38(1)(b), describes customary international law as “a general practice accepted as law.”. This understanding of customary international law is further affirmed in the Commander’s Handbook, which states (p. 20): “The general and consistent practice among nations with respect to a particular subject, which over time is accepted by them generally as a legal obligation, is known as customary international law. Customary international law is the principal source of international law and is binding upon all nations.”
- 45.
For example, in the United States, the requirement for COs of warships to render assistance to persons in distress at sea is mandated in U.S. Navy Regulations (1990), article 0925 (Assistance to Persons, Ships and Aircraft in Distress): “1. Insofar as can be done without serious danger to the ship or crew, the commanding officer or the senior officer present as appropriate shall: a) proceed with all possible speed to the rescue of persons in distress if informed of their need for assistance, insofar as such action may reasonably be expected of him or her; b) render assistance to any person found at sea in danger of being lost; c) afford all reasonable assistance to distressed ships and aircraft; and d) render assistance to the other ship, after a collision, to her crew and passengers and, where possible, inform the other ship of his or her identity.” U.S. Coast Guard Regulations (1992), article 4.2-5 (Assistance), provides a similar mandate for the COs of U.S. Coast Guard ships to render assistance to persons in distress. These respective regulations make no distinction between peacetime and wartime operational requirements. (Note: rendering assistance to persons in distress under the law of armed conflict is not considered within the scope of this article.)
- 46.
The annex to the SAR Convention (1979) applies to its contracting states. It is the contracting state that is obligated to ensure its ships comply with their obligation to render assistance at sea. See also paragraph 2.1.10.
- 47.
The disembarkation of survivors can be conducted in several ways: (1) by the warship transferring survivors at sea to another craft to ensure it can resume normal operations; (2) by the SMC coordinating disembarkation with the coastal state that would be the warship’s next port of call; or (3) in any other way that would relieve the warship of its burden to care for the survivors. As stated previously, the SMC should strive to minimize the impact on the warship (SAR Convention (1979), paragraph 3.1.9).
- 48.
The annex to the SAR Convention (1979) (paragraph 2.1.1) states: “Parties shall, as they are able to do so individually or in co-operation with other States and, as appropriate, with the Organization, participate in the development of search and rescue services to ensure that assistance is rendered to any person in distress at sea.”
- 49.
Additionally, the coastal state must coordinate the SAR response regardless of who the persons in distress are. The annex to the SAR Convention (1979) (paragraph 2.1.10) makes this requirement very clear: “Parties shall ensure that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.”
- 50.
A more appropriate course of action than diverting a ship from its next port of call would be to have the ship rendezvous with and transfer SAR survivors to a SAR unit for further transport to a place of safety.
- 51.
Guidelines on the Treatment of Persons Rescued at Sea (2004) provide the priorities for rendering assistance to persons rescued at sea. Paragraph 3.1 states in part: “When ships assist persons in distress at sea, co-ordination will be needed among all concerned to ensure that all of the following priorities are met in a manner that takes due account of border control, sovereignty and security concerns consistent with international law: 1) Lifesaving: All persons in distress at sea should be assisted without delay; 2) Preservation of the integrity and effectiveness of SAR services: Prompt assistance provided by ships at sea is an essential element of global SAR services; therefore it must remain a top priority for shipmasters, shipping companies and flag States; and 3) Relieving masters of obligations after assisting persons: Flag and coastal States should have effective arrangements in place for timely assistance to shipmasters in relieving them of persons recovered by ships at sea” (emphasis added).
- 52.
The SAR Convention (1979) is the means by which parties have agreed to fulfill their duty to render assistance in most circumstances. However, the duty to render assistance continues to exist for every mariner. If it appears that the process agreed to in the SAR Convention (1979) will not result in timely and effective assistance in a particular situation, a shipmaster is still under obligation to come to the aid of the person in distress.
- 53.
Annex to the SAR Convention (1979), paragraph 3.1.9.
- 54.
IAMSAR manual (2013), vol. 1, p. xiii.
- 55.
A place of safety very well may be the ship’s next port of call. The goal of the SAR Convention (1979) is to minimize the impact on the ship. However, a life raft, even with ample rations, is not considered a place of safety. According to the SOLAS (1974), a life raft is considered a lifesaving appliance and does not meet the requirements for or the definition of a place of safety. The SOLAS (1974), chapter III, regulation 3, explains that a lifeboat or life raft is a survival craft, “capable of sustaining lives of persons in distress from the time of abandoning the ship.” Persons afloat in a life raft must still be considered “in distress” until appropriate assistance is rendered and the persons are delivered to a place of safety.
- 56.
The Convention on Facilitation of International Maritime Traffic (1965) mandates that states that must coordinate the disembarkation of persons rescued at sea. Section 7.C (Emergency Assistance) affirms this important requirement, stating in part, “7.8 Standard. Public authorities shall facilitate the arrival and departure of ships engaged in: … the rescue of persons in distress at sea in order to provide a place of safety for such persons.” In addition, standard 7.9 states, “Public authorities shall, to the greatest extent possible, facilitate the entry and clearance of persons, cargo, material and equipment required to deal with situations described in Standard 7.8.”;entered into force: 5 March 1967; number of contracting states 2017: 115.
- 57.
Or any other vessel that diverts to render assistance to persons in distress.
- 58.
The annex to the SAR Convention (1979) (paragraph 1.3.7) defines search and rescue facility as “[a]ny mobile resource, including designated search and rescue units, used to conduct search and rescue operations.” By comparison, search and rescue unit is defined (paragraph 1.3.8) as “[a] unit composed of trained personnel and provided with equipment suitable for the expeditious conduct of search and rescue operations.” The IAMSAR manual (2013), vol. 1, goes on to state (pp. 2–10, paragraph 2.5.3) that SAR units “may be under the direct jurisdiction of the SAR service or other State authorities or may belong to non-Governmental or voluntary organizations.”
- 59.
Guidelines on the Treatment of Persons Rescued at Sea (2004) stipulate (paragraph 6.13) that “[a]n assisting ship should not be considered a place of safety based solely on the fact that the survivors are no longer in immediate danger once aboard the ship. An assisting ship may not have appropriate facilities and equipment to sustain additional persons on board without endangering its own safety or to properly care for the survivors. Even if the ship is capable of safely accommodating the survivors and may serve as a temporary place of safety, it should be relieved of this responsibility as soon as alternative arrangements can be made.”
- 60.
Guidelines on the Treatment of Persons Rescued at Sea (2004) further explain (paragraph 6.15) this important aspect of coordinating the disembarkation of any persons rescued at sea: “The Conventions, as amended, indicate that delivery to a place of safety should take into account the particular circumstances of the case. These circumstances may include factors such as the situation on board the assisting ship, on scene conditions, medical needs, and availability of transportation or other rescue units. Each case is unique, and selection of a place of safety may need to account for a variety of important factors.”
- 61.
On 10–11 December 2014, the U.S. Coast Guard participated in the annual Dialogue on Protection Challenges, in Geneva, Switzerland, on the theme “Protection at Sea.” The meeting, sponsored by the UNHCR, focused on mixed migration at sea. During the meeting, an International Chamber of Shipping (ICS) representative made an excellent point: It is the shipmaster who must determine whether to deviate from his intended voyage and transit to the “nearest port of call” or to continue to the ship’s “next port of call.” Coastal states need to understand and support the shipmaster’s decision, which will take into account important on-scene conditions as well as other logistical and risk factors. The “nearest port” may not be a viable option for the shipmaster. The coastal state needs to respect the shipmaster’s decision and coordinate disembarkation of survivors accordingly. “Shipping Industry Calls on Governments to Address Migrants at Sea Crisis,” International Chamber of Shipping, www.ics-shipping.org/.
- 62.
In 2015 IMO/UNHCR/ICS jointly published an excellent resource, the Rescue at Sea Guide (2015). In discussing the action required by governments and RCCs in coordinating a merchant ship rendering assistance to persons in distress, it states: “Governments have to coordinate and cooperate 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 ship’s intended voyage, and have to arrange disembarkation as soon as reasonably practicable.” It goes on to state (p. 12) that “the Government responsible for the SAR region in which the rescued persons were recovered is primarily responsible for providing a place of safety or ensuring that such a place of safety is provided.”
- 63.
Kumin (2014) provides a good overview of what is considered mixed migration by sea: “Contemporary irregular migration is mostly ‘mixed,’ meaning that it consists of flows of people who are on the move for different reasons but who share the same routes, modes of travel and vessels. They cross land and sea borders without authorization, frequently with the help of people smugglers. IMO and UNHCR point out that mixed flows can include refugees, asylum seekers and others with specific needs, such as trafficked persons, stateless persons and unaccompanied or separated children, as well as other irregular migrants. The groups are not mutually exclusive, however, as people often have more than one reason for leaving home. Also, the term ‘other irregular migrants’ fails to capture the extent to which mixed flows include people who have left home because they were directly affected or threatened by a humanitarian crisis—including one resulting from climate change—and need some type of protection, even if they do not qualify as refugees.”
- 64.
IMO Secretariat (2015), pp. 1–2.
- 65.
Sekimizu (2015), p. 1.
- 66.
Boyer (2015), p. 10: “The scale and protracted nature of the crisis is challenging the ability of the international community to meet the continuing need for essential, life-saving humanitarian aid.”
- 67.
Sekimizu (2015), p. 1.
- 68.
United Nations High Commissioner for Refugees UNHCR (2015), p. 2.
- 69.
IMO Secretariat (2015).
- 70.
Ibid.
- 71.
United Nations High Commissioner for Refugees UNHCR (2015), p. 2.
- 72.
IMO Secretariat (2015), p. 2.
- 73.
Ibid.
- 74.
The summary conclusions from an 8–10 November 2011 UNHCR experts meeting in Djibouti, see United Nations High Commissioner for Refugees UNHCR (2011), state (paragraph B.7): “The specific legal framework governing rescue at sea does not apply to interception operations that have no search and rescue component.”
- 75.
Considering the level of concern for the safety of persons or craft that may be in danger, the SMC will determine in which emergency phase (uncertainty, alert, or distress) to classify the SAR incident. (IAMSAR manual (2013), vol. 2, paragraph 3.3.1.) In particular, the annex to the SAR Convention (1979) (paragraph 1.3.13) defines distress phase as “[a] situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance.” In many mixed-migration operations the SAR Convention (1979) would not apply necessarily because the circumstances of the incident may not meet the criteria for any of the three emergency phases.
- 76.
It is important to understand the differences among refugees, asylum seekers, and economic migrants. (1) The Rescue at Sea Guide (2015) provides a good description of the difference between a refugee and an asylum seeker. An asylum seeker is a person who “is seeking international protection and whose claim has not yet been finally decided. Not every asylum-seeker will ultimately be recognized as a refugee. Refugee status is ‘declaratory’—that is, determining refugee status does not make a person a refugee, but rather recognizes that a person is a refugee.” The guide goes on to state that “[r]escued persons who do not meet the criteria of the Refugee Convention (1951) definition of a ‘refugee,’ but who fear torture or other serious human rights abuses or who are fleeing armed conflict may also be protected from return to a particular place (‘refoulement’) by other international or regional human rights or refugee law instruments.” (2) There is also a difference between refugees and economic migrants. In its 50th-anniversary issue, “The Wall behind Which Refugees Can Shelter,” of its Refugees publication the UNHCR states: “An economic migrant normally leaves a country voluntarily to seek a better life. Should he or she elect to return home they would continue to receive the protection of their government. Refugees flee because of the threat of persecution and cannot return safely to their homes in the circumstances then prevailing.”, see: Most Frequently Asked Questions about the Refugee Convention (2001).
- 77.
The Refugee Convention (1951), article 1A(2), defines refugee as a person who, “owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of that country.” The Convention entered into force: 22 April 1954; number of parties 2017: 145.
- 78.
Annex to the SAR Convention (1979), paragraph 3.1.9.
- 79.
- 80.
Newland (2013). This was also affirmed in the report (paragraph C.10) of United Nations High Commissioner for Refugees UNHCR (2011), “Fundamentally, a core challenge in any particular rescue at sea operation involving asylum-seekers and refugees is often the timely identification of a place of safety for disembarkation, as well as necessary follow-up, including reception arrangements, access to appropriate processes and procedures, and outcomes. If a shipmaster is likely to face delay in disembarking rescued people, he/she may be less ready to come to the assistance of those in distress at sea. Addressing these challenges and developing predictable responses requires strengthened cooperation and coordination among all States and other stakeholders implicated in rescue at sea operations”.
- 81.
The IAMSAR manual (2013), vol. 2, p. xviii, defines mass rescue operation (MRO) as “[s]earch and rescue services characterized by the need for immediate response to large numbers of persons in distress, such that the capabilities normally available to search and rescue authorities are inadequate.” The question is whether a mixed-migration-at-sea incident would actually include “persons in distress”; and, if there are large numbers of persons involved, would the incident be classified as an MRO? In many instances, these incidents could be considered illegal trafficking in persons; it would seem that the United Nations Convention on Transnational Organized Crime (TOC Convention (2004))—in particular annex II, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children—would be more applicable than the SAR Convention (1979). The TOC Convention (2004) entered into force: 29 September 2003; number of parties 2017: 185. If mixed-migration-by-sea incidents do not primarily constitute the rescue of persons in distress, and are not adequately addressed in the TOC Convention (2004), the international community may want to consider developing an international instrument that would serve as the basis for the coordination and conduct of these maritime operations.
- 82.
The facts portrayed in this vignette are known by the author, who attests to their accuracy. The vignette is presented for consideration of the legal and policy issues involved.
- 83.
In defining territorial sea, UNCLOS (1982), article 2, states: “1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.” Article 3 continues, “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”
- 84.
The Commander’s Handbook (2007) (paragraph 2.4.1) defines military aircraft as “all aircraft operated by commissioned units of the armed forces of a nation bearing the military markings of that nation, commanded by a member of the armed forces, and manned by a crew subject to regular armed forces discipline.”
- 85.
For example, AE is envisioned in UNCLOS (1982). In describing innocent passage, article 18 provides for the assistance of persons in distress: “2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress” (emphasis in bold added).
- 86.
At the 1991 convening of IMO’s Sub-Committee on Lifesaving, Search and Rescue, the United States submitted to the subcommittee a note which argued (paragraph 3) the U.S. position that “[t]he obligation to rescue persons in distress regardless of nationality is based on the principle and time-honored tradition that those at sea will, wherever they can without undue risk, assist others in danger or distress…. Thus, coastal state’s right to control activities in its territorial seas is balanced with the requirement to rescue those in distress from perils of the sea”, see Note USA to IMO (1991). This U.S. paper was also discussed at the 65th session of IMO’s Legal Committee, duly recorded in Report of the IMO Legal Committee (1991). While several delegations shared the U.S. position, the committee agreed “that there existed no right of assistance entry in public international law at present; this principle is neither embodied in any convention, nor established by customary law. Many delegations emphasized in this connection that it was important not to upset the delicate balance between the duty to render assistance, on the one hand, and the sovereign right of coastal States to control entry into or operation in their waters on the other” (emphasis added). Over the two decades since the Legal Committee reached this conclusion, the concept of AE has continued to become established as a standard principle enshrined through international conventions and customary international law.
- 87.
This article uses the term “AE rescue operation,” not “SAR operation.” When a ship or aircraft enters a coastal state’s territorial sea to render assistance to persons in distress, the purpose is to rescue, not search for, survivors. Scenario D addresses this distinction further.
- 88.
United States Coast Guard Addendum to the United States Search and Rescue Supplement to the International Aeronautical and Maritime Search and Rescue Manual (2013), pp. 1–45, paragraphs 1.8.1.4 and 1.8.1.5. See also Chairman of the Joint Chiefs of Staff instruction (2013), p. 2. Note: the U.S. Coast Guard uses the term “assistance entry” (AE), while the U.S. Department of Defense (DoD) uses the term “right of assistance entry” (RAE) when discussing the conduct of rescue operations in a coastal state’s territorial sea.
- 89.
SOLAS (1974) does not apply to warships. UNCLOS (1982) and the Salvage Convention (1989) do not limit what types of vessels can conduct an AE rescue operation in a coastal state’s territorial sea. However, the emphasis of this article is on AE rescue operations conducted by government ships (including warships).
- 90.
UNCLOS (1982), article 98(1)(a), specifically states that the shipmaster has a duty to “render assistance to any person found at sea in danger of being lost” (emphasis added). SOLAS (1974), chapter V, regulation 33, requires “[t]he 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, …. to proceed with all speed to their assistance” (emphasis added). Similarly, the Salvage Convention (1989), article 10, paragraph 1, requires “[e]very master …, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea” (emphasis added). All three conventions make no geographical distinction concerning the obligation of the shipmaster to render assistance to persons in distress. The duty to render assistance should be considered to apply on the high seas and territorial sea of any coastal state.
- 91.
For example, UNCLOS (1982), article 2, states: “The sovereignty over the territorial sea is exercised subject to this Convention and other rules of international law” (emphasis added).
- 92.
United States Coast Guard Addendum to the United States Search and Rescue Supplement to the International Aeronautical and Maritime Search and Rescue Manual (2013), pp. 1–46, paragraph 1.8.2.4. As will be discussed later in this section, U.S. Coast Guard and DoD SAR policy allows for both aircraft and surface units to conduct AE rescue operations.
- 93.
The SAR Convention (1979) was never intended to limit or restrict any available warship or other ship in the conduct of immediate lifesaving assistance to persons in distress, even in a coastal state’s territorial sea. The annex to the SAR Convention (1979) (paragraph 4.3) states: “Any search and rescue unit receiving information of a distress incident shall initially take immediate action if in the position to assist and shall, in any case without delay, notify the rescue co-ordination centre or rescue sub-centre in whose area the incident has occurred.”
- 94.
Chairman of the Joint Chiefs of Staff instruction (2013), paragraph 4.d.
- 95.
- 96.
The use of U.S. military aircraft in the conduct of RAE operations is also contemplated. Chairman of the Joint Chiefs of Staff instruction (2013), paragraph 6.c(2), states, “An operational commander may render immediate rescue assistance by deploying a U.S. military aircraft (including aircraft embarked aboard military ships conducting RAE operations) into the national airspace within U.S.-recognized foreign territorial seas or archipelagic waters when all four of the following conditions are met: (a) A person, ship, or aircraft within the foreign territorial sea or archipelagic waters is in danger or distress from perils of the sea and requires immediate rescue assistance; (b) The location is reasonably well known; (c) The U.S. military aircraft is able to render timely and effective assistance; and (d) Any delay in rendering assistance could be life-threatening.”
- 97.
For example, the United States Coast Guard Addendum to the United States Search and Rescue Supplement to the International Aeronautical and Maritime Search and Rescue Manual (2013), paragraph 1.8.2.5, states that “Coast Guard rescue aircraft may conduct an AE rescue operation in a coastal State’s territorial sea, when in the judgment of the aircraft commander: (a) There is reasonable certainty (based on the best available information regardless of source) that a person is in distress; (b) The distress location is reasonably well known; and (c) The SAR unit (or SAR facility) is in position to render timely and effective assistance.”
- 98.
Article 18(2) of UNCLOS (1982) concerns ships in the conduct of innocent passage in a coastal state’s territorial sea. See also note 84.
- 99.
The annex to the SAR Convention (1979) promotes using all available means for rendering assistance to persons in distress. For example, in the conduct of search operations, paragraph 3.1.3 states: “Unless otherwise agreed between the States concerned, the authorities of a Party which wishes its rescue units to enter into or over the territorial sea or territory of another Party solely for the purpose of searching for the position of maritime casualties and rescuing the survivors of such casualties, shall transmit a request, giving full details of the projected mission and the need for it, to the rescue co-ordination centre of that other Party, or to such other authority as has been designated by that Party” (emphasis added). While paragraph 3.1.3 describes the requirement for aircraft entering into a coastal state’s territorial sea for the purpose of searching, the aircraft would not be required to seek permission for the conduct of an AE rescue operation. The criteria for the conduct of an AE rescue operation by an aircraft should be met prior to rendering any assistance in a coastal state’s territorial sea (see notes 97 and 98).
- 100.
The United States Coast Guard Addendum to the United States Search and Rescue Supplement to the International Aeronautical and Maritime Search and Rescue Manual (2013) does provide a note of caution on the use of aircraft and ships in the conduct of an AE rescue operation. Paragraph 1.8.1.6 states: “Customary practice for aircraft conducting AE rescue operations in a coastal State’s territorial sea is not as fully developed as for vessels (e.g., nations may recognize the right to conduct AE rescue operations more readily for vessels than for aircraft). In addition, the conduct of AE rescue operations by nonmilitary vessels is apt to cause less coastal State concern than entry by military vessels. Therefore, safety of the rescue unit must be considered in light of the views of the coastal State whose territorial sea or overlying airspace is being entered.”
- 101.
The Salvage Convention (1989), article 1(a), defines salvage as “any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.”
- 102.
It is at this point where U.S. Coast Guard and DoD AE policy set forth in Chairman of the Joint Chiefs of Staff instruction (2013), differ. The United States Coast Guard Addendum to the United States Search and Rescue Supplement to the International Aeronautical and Maritime Search and Rescue Manual (2013) states (paragraph 1.8.2.6[b]) that Coast Guard rescue assets shall not conduct an AE rescue operation “[t]o rescue (or salvage) property (other than in limited cases, such as for the retrieval of medical supplies, or other property that may assist in the conduct of the lifesaving operation).” In contrast, Chairman of the Joint Chiefs of Staff instruction (2013), allows for the rescue of property: “RAE applies only to rescues in which the location of the persons or property in danger or distress is reasonably well known” (emphasis added). As mentioned previously (note 89), another difference is that the Coast Guard uses the term “assistance entry,” while DoD uses “right of assistance entry.” The Coast Guard prefers AE, believing the term advances the service’s objectives in international engagements. Many nations view AE solely as a duty, not a right, even a limited one. While the distinction between a “duty” and “right” has legal significance, the practical distinctions are minimal, since international support exists for entry into a coastal state’s territorial sea to render assistance to those in distress.
- 103.
The annex to the SAR Convention (1979) (paragraph 3.1.2) states: “Unless otherwise agreed between the States concerned, a Party should authorize… immediate entry into or over its territorial sea or territory of rescue units of other Parties solely for the purpose of searching for the position of maritime casualties and rescuing the survivors of such casualties” (emphasis added). As previously noted (note 100), the annex continues (paragraph 3.1.3): “Unless otherwise agreed between the States concerned, the authorities of a Party which wishes its rescue units to enter into or over the territorial sea or territory of another Party solely for the purpose of searching for the position of maritime casualties and rescuing survivors of such casualties, shall transmit a request, giving full details of the projected mission and the need for it, to the rescue co-ordination centre of that other Party, or to such authority as has been designated by that Party” (emphasis added). In addition to Coast Guard policy not authorizing the conduct of an AE rescue operation to recover property or to search for persons in distress, the United States Coast Guard Addendum to the United States Search and Rescue Supplement to the International Aeronautical and Maritime Search and Rescue Manual (2013) also states (paragraph 1.8.2.6) that an AE rescue operation cannot be conducted (1) to assist persons not in distress, or (2) within a coastal state’s internal waters or over its landmass.
- 104.
SOLAS (1974), chapter V, regulation 33, requires the master of a ship at sea that is in a position to render assistance to persons in distress to provide that assistance. Stating that the master is required to render assistance demonstrates that it is the master who determines whether a person is in distress.
- 105.
The Commander’s Handbook (2007), paragraph 2.5.3.1, describes international straits as follows: “Straits that are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone are subject to the legal regime of transit passage. Transit passage exists throughout the entire strait (shoreline-to-shoreline) and not just the area overlapped by the territorial sea of the coastal nation(s). Under international law, the ships and aircraft of all nations, including warships, auxiliary vessels, and military aircraft, enjoy the right of unimpeded transit passage through such straits and their approaches.” Transit passage is defined as “the exercise of the freedoms of navigation and overflight solely for the purpose of continuous and expeditious transit in the normal modes of operation utilized by ships and aircraft for such passage.” See also UNCLOS (1982), part III (Straits Used for International Navigation).
- 106.
Nordquist (2012), vol. 3, Articles 86 to 132, p. 177.
- 107.
While the annex to the SAR Convention (1979) does not explicitly state that law-enforcement actions are not coordinated and conducted within the framework of the global SAR system, the IAMSAR manual (2013), vol. 2, does provide guidance for assistance in “other than SAR operations” (see note 113). Another excellent guide for determining what generally would be considered a “SAR case” is paragraph 4.c of Chairman of the Joint Chiefs of Staff instruction (2013), which states that RAE is conducted by U.S. military ships in support of “the time-honored mariners’ duty under customary international law of rendering rapid and effective assistance to persons, ships, or aircraft in imminent peril at sea without regard to nationality or location” (emphasis added). The Chairman of the Joint Chiefs of Staff instruction (2013) goes on (paragraph 5.c) to define perils of the sea as “accidents and dangers peculiar to maritime activities including storms, waves, and wind; grounding; fire, smoke, and noxious fumes; flooding, sinking, and capsizing; loss of propulsion or steering; and other hazards of the sea.” This definition provides not only a good understanding of when U.S. military ships should conduct AE rescue operations, but also a broad characterization for when the SAR Convention (1979) would apply and when activation of the global SAR system is warranted.
- 108.
The annex to the SAR Convention (1979) does provide (paragraph 1.3.13) a definition of distress phase (see note 76). The coastal-state SMC makes the determination of whether this definition applies considering the circumstance of a particular SAR operation. If a person declares that he is in distress, the SMC normally would activate the coastal state’s distress phase processes and procedures to provide the necessary assistance.
- 109.
Walker (1995), p. 169, provides a good overview of what should be considered a distress: “‘Distress,’ as used in UNCLOS (1982) Articles 18, 39, 98 and 109, and as incorporated by reference in UNCLOS (1982) Articles 45 and 54, means an event of grave necessity, such as severe weather or mechanical failure in a ship or aircraft; or a human-caused event, such as a collision with another ship or aircraft. The necessity must be urgent and proceed from such a state of things as may be supposed to produce in the mind of a skillful mariner or aircraft commander a well-grounded apprehension of the loss of the vessel or aircraft and its cargo, or for the safety or lives of its crew or its passengers.”
- 110.
Case Wu Tien Li-Shou v. United States of America (2015).
- 111.
Ibid., p. 38.
- 112.
The IAMSAR manual (2013), vol. 2, also recognizes this important distinction. In paragraph 7.4.2 it states: “In situations such as piracy or armed robbery against ships where the ship or crew is in grave and imminent danger, the master may authorize the broadcasting of a distress message, preceded by the appropriate distress alerts (MAYDAY, DSC, etc.), using all available radiocommunications systems. Also, ships subject to the SOLAS (1974) are required to carry equipment called the Ship Security Alert System (SSAS) for sending covert alerts to shore for vessel security incidents involving acts of violence against ships (i.e., piracy, armed robbery against ships or any other security incident directed against a ship)…. National procedures can vary but the role of the RCC, if involved, is usually to receive the SSAS alert and inform the security forces authority that will be in charge of the response. Actions taken by the RCC upon receiving a covert SSAS alert include: … place SAR resources on standby, if appropriate, since it may become a SAR case” (emphasis added). This section in vol. 2 is placed in chapter 7, which is titled “Emergency Assistance Other than Search and Rescue,” emphasizing that a law-enforcement action should not initially be considered a SAR operation as envisioned in the SAR Convention (1979); however, a SAR case may arise out of a law-enforcement action.
- 113.
The facts portrayed in this vignette are known by the author, who attests to their accuracy. The vignette is presented for consideration of the legal and policy issues involved.
- 114.
This discussion is based on SAR cases that would be coordinated and conducted under the SAR Convention (1979) and would not normally apply to a mixed-migration-at-sea incident, which might or might not constitute a SAR case. The unique nature of mixed-migration-at-sea operations would require development of unique processes and procedures to meet the requirements of those types of operations.
- 115.
United Nation Convention on Conditions for Registration of Ships (1986), article 2, defines flag State as “a State whose flag a ship flies and is entitled to fly.” Article 1 indicates that a flag state must “exercise effectively its jurisdiction and control over such ships with regard to identification and accountability of shipowners and operators as well as with regard to administrative, technical, economic and social matters.” Additionally, UNCLOS (1982) article 91 states: “1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. 2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.” Walker (1995), pp. 193–195, provides a detailed explanation of the term flag State as used in UNCLOS (1982).
- 116.
Case Thames Shipyard and Repair Company v. United States (2003).
- 117.
In particular, both the district court and the court of appeals held that the discretionary function exception to liability under 46 USC § 742 (the Suits in Admiralty Act, which allows for a limited waiver of the U.S. federal government’s sovereign immunity from civil lawsuits) and 46 USC § 781 (the Public Vessels Act, which allows for legal action against the United States for damages caused by a public vessel) protected from further judicial review the Coast Guard’s decision to evacuate the master forcibly from Northern Voyager.
- 118.
The court of appeals brief included the following comment: “The facts of this case lead us to conclude that the Coast Guard reacted rationally, and that human life could reasonably have been deemed to be at serious risk had Captain Haggerty and his crew not been removed. The Northern Voyager, without steering, was rolling in 6–8 foot ocean seas. Water was pouring in. She was developing an increasing port-side list. The fishing boat’s only access port was on the starboard side. The Coast Guardsmen on the vessel reported progressive flooding, raising the possibility that the ship would capsize, trapping all on board. While arguments can perhaps be made in light of 20-20 hindsight tending to minimize the potential dangers had the master and his fellows been allowed to remain, we see no basis to doubt the objective reasonableness of the Coast Guard’s on the scene decision to remove them.” However, Judge Torruella on the Court of Appeals concurred in part in and dissented in part from the majority’s recognition of the Coast Guard’s authority to compel the master forcibly to abandon his ship, thus preventing him from continuing efforts to save it. He wrote: “With due respect, there is no authority in law, practice, or maritime tradition that validates such action by the Coast Guard, nor am I aware of the government’s having claimed such extraordinary powers before the inception of the case.” He concluded that the discretionary function exception did not shield the United States from liability, because a decision cannot be shielded from liability if the decision maker is acting without actual authority. In the judge’s view, “Such a momentous shift in policy and such an extraordinary grant of authority should not be undertaken absent a clear legislative mandate expressed both in the text of the statute and in its legislative history.” For those interested in this issue, this case is well worth reading.
- 119.
Coast Guard SAR policy states that a voluntary evacuation of a person should be considered the preferred alternative to removing the person forcibly from his vessel. The United States Coast Guard Addendum to the United States Search and Rescue Supplement to the International Aeronautical and Maritime Search and Rescue Manual (2013) (paragraph 4.2.2) states: “Although the Coast Guard does have the authority to compel a mariner to abandon their vessel in a life threatening situation, it is always preferable that a mariner voluntarily evacuate when necessary. Coast Guard personnel should endeavor to use all means, including powers of persuasion, to encourage a mariner to evacuate, when appropriate. Forcible and/or compelled evacuations should only be conducted when a life-threatening emergency exists, and there is an immediate need for assistance or aid.” Additionally, the decision to evacuate a person forcibly from his vessel to save his life should, if possible, be made in consultation with the SMC. The SMC, if time permits, should consult legal counsel. However, if time is of the essence and the situation is life threatening, then SAR policy should allow the SAR unit on scene to make the decision to remove a person forcibly from his vessel to save his life. Policies, procedures, and training must be developed and implemented to ensure that SAR units, SMCs, legal counsel, and the SAR organization chain of command can effectively manage this type of scenario.
- 120.
It should also be noted that from a U.S. legal perspective, a person who refuses to abandon his vessel at the request of the U.S. Coast Guard to save his own life has committed no crime, which makes the contemplated use of force even more difficult.
References
Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011) 12 May 2011. oaarchive.arctic-council.org/. Accessed 05 Sept 2017
Boyer G (2015) Development dimensions of mixed migration (presentation, high-level meeting to address unsafe mixed migration by Sea, London, March 2015. http://www.imo.org/en/About/Events/Documents/migrantspresentations/y%20undp%205%20march%20Development%20Dimensions%20of%20Mixed%20Migration%20Flows%20March%202015.pdf. Accessed 05 Sept 2017
Case Hasan v. United States of America (2010) https://www.courtlistener.com/opinion/2476901/united-states-v-hasan/. Accessed 05 Sept 2017
Case Wu Tien Li-Shou v. United States of America (2015) U.S. District Court for the District of Maryland, 4th Cir., 23 January 2015. http://caselaw.findlaw.com/us-4th-circuit/1690428.html and https://content.next.westlaw.com/Document/I8824f413e70211e3a795ac035416da91/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=true&bhcp=1. Accessed 10 Oct 2017
Case Thames Shipyard and Repair Company v. United States (2003) Northern Voyager Limited Partnership; OneBeacon America Insurance Company f/k/a/ Commercial Union Insurance Company, Plaintiffs, Appellants, v. United States, Defendant, Appellee. Nos. 02-1619, 02-1620. Decided: November 26, 2003. http://caselaw.findlaw.com/us-1st-circuit/1173624.html. Accessed 10 Oct 2017
Chairman of the Joint Chiefs of Staff instruction (2013) Guidance for the exercise of right-of-assistance entry, CJCSI 2410.01D (3 September 2013). http://www.jcs.mil/Portals/36/Documents/Library/Instructions/2410_01.pdf?ver=2016-02-05-175013-783. Accessed 05 Sept 2017
Chicago Convention (1944) Convention on international civil aviation, 7 December 1944, 9th ed. 2006, ICAO doc. 7300
Commander’s Handbook (2007) The commander’s handbook on the law of naval operations, U.S. Navy/Marine Corps/Coast Guard. www.jag.navy.mil/documents/NWP_1-14M_Commanders_Handbook.pdf. Accessed 10 Oct 2017
Gage LJ (1897) U.S. secretary of the treasury, to captain francis tuttle, revenue cutter service, “Letter of Instructions,” 15 November 1897, in Report of the Cruise of the U.S. Revenue Cutter Bear and the Overland Expedition for the Relief of the Whalers in the Arctic Ocean, from November 27, 1897, to September 13, 1898 (Washington, DC: Government Printing Office, 1899). www.uscg.mil/
Guidelines on the Treatment of Persons Rescued at Sea (2004) adopted 20 May 2004, IMO Resolution MSC.167(78). http://www.imo.org/en/OurWork/Facilitation/personsrescued/Documents/MSC.167(78).pdf. Accessed 05 Sept 2017
High Seas Convention (1958) Convention on the High Seas, 29 April 1958, U.N.T.S. 450, p. 11, into force 30 September 1962. https://treaties.un.org/doc/Publication/UNTS/Volume%20450/v450.pdf. Accessed 05 Sept 2017
IAMSAR (2013) International Aeronautical and Maritime Search and Rescue Manual (2013), IAMSAR, IMO/International Civil Aviation Organization. CPI Group, Croydon
IMO Secretariat (2015) Outcome of the inter-agency high-level meeting to address unsafe mixed migration by sea: note by the secretariat (LEG 102/INF.3), Legal Committee 102nd Session (9 March 2015). http://iidmaritimo.org/instituto/wp-content/uploads/2016/04/LEG-102-INF.3-Outcome-of-the-inter-agency-High-level-meeting-to-address-unsafe-mixed-migration-by-sea-Secretariat.pdf. Accessed 17 Sept 2017
Jones M (2013) A year later, Oshkosh survivor of cruise ship crash still cruising. Milwaukee-Wisconsin Journal Sentinel, 14 January 2013. www.jsonline.com/
Kumin J (2014) The challenge of mixed migration by sea. Forced Migration Review, no. 45 (February 2014). www.fmreview.org/. Accessed 05 Sept 2017
Mallia P (2014) The MV salamis and the state of disembarkation at international law: the undefinable goal. Am Soc Int Law Insights 18(11). (15 May 2014). https://www.asil.org/insights/volume/18/issue/11/mv-salamis-and-state-disembarkation-international-law-undefinable-goal. Accessed 05 Sept 2017
Most Frequently Asked Questions about the Refugee Convention (2001) United Nations High Commissioner for Refugees (UNHCR), 01 June 2001. http://www.unhcr.org/news/stories/2001/6/3b4c06578/frequently-asked-questions-1951-refugee-convention.html. Accessed 06 Oct 2017
Newland K (2013) Troubled waters: rescue of Asylum seekers and refugees at sea, migration information source (1 January 2003). http://www.migrationpolicy.org/article/troubled-waters-rescue-asylum-seekers-and-refugees-sea. Accessed 05 Sept 2017
Nordquist MH (2012). In: Nandan SN, Rosenne S (eds) United Nations convention on the law of the sea: a commentary. Brill
Note USA to IMO (1991) Note “SAR on or over Foreign Territorial Seas” of the United States of America to IMO’s sub-committee on lifesaving, search and rescue, submitted 19 January 1991 (LSR 22/8/4)
Oxford Dictionaries., www.oxforddictionaries.com. Accessed 05 Sept 2017
Refugee Convention (1951) Convention relating to the status of refugees, UNHCR, 25 July 1951. http://www.unhcr.org/3b66c2aa10. Accessed 6 Oct 2017
Report of the IMO Legal Committee (1991) Report of the legal committee on the work of Its Sixty-Fifth Session, 11 October 1991, LEG 65/8
Rescue at Sea Guide (2015) A guide to principles and practice as applied to refugees and migrants (2015). http://www.ics-shipping.org/docs/default-source/resources/safety-security-and-operations/imo-unhcr-ics-rescue-at-sea-guide-to-principles-and-practice-as-applied-to-refugees-and-migrants.pdf?sfvrsn=25. Accessed 05 Sept 2017
Salvage Convention (1989) International convention on salvage, 28 April 1989. http://www.dutchcivillaw.com/legislation/consalvage.htm. Accessed 6 Oct 2017
SAR Convention (1979) International convention on maritime search and rescue, into force 22 June 1985. http://www.imo.org/en/About/conventions/listofconventions/pages/internationalconvention-on-maritime-search-and-rescue-(sar).aspx. Accessed 5 Sept 2017
Sekimizu K (2015) IMO Secretary-General, speech at High-Level Meeting to Address Unsafe Mixed Migration by Sea. IMO Headquarters, London, p 1. http://www.imo.org/en/About/Events/Documents/migrants4march/Z%20IMO%20High-Level%20meeting%20to%20address%20Unsafe%20Mixed%20Migration%20by%20Sea.pdf. Accessed 05 Sept 2017
SOLAS Convention (1974) International convention for the safety of life at sea, into force 25 May 1980. http://www.imo.org/en/About/conventions/listofconventions/pages/internationalconvention-for-the-safety-of-life-at-sea-(solas),-1974.aspx. Accessed 5 Sept 2017; Consolidated Edition, 2009 (London: IMO, 2009)
Statute of the International Court of Justice (1945) http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf. Accessed 05 Sept 2017
The Convention on Facilitation of International Maritime Traffic (1965) 9 April 1965. http://www.ifrc.org/Docs/idrl/I258EN.pdf. Accessed 05 Sept 2017
TOC Convention (2004) United Nations convention against transnational organized crime and the protocols thereto, New York 2004. https://www.unodc.org/documents/middleeastandnorthafrica/organised-crime/UNITED_NATIONS_CONVENTION_AGAINST_TRANSNATIONAL_ORGANIZED_CRIME_AND_THE_PROTOCOLS_THERETO.pdf. Accessed 06 Oct 2017
United Nations Convention on the Law of the Sea (1982) (UNCLOS) 1833 U.N.T.S. 397
United Nation Convention on Conditions for Registration of Ships (1986) Not in force. http://unctad.org/en/PublicationsLibrary/tdrsconf23_en.pdf. Accessed 05 Sept 2017
United Nations High Commissioner for Refugees UNHCR (2015) The sea route to Europe: the Mediterranean passage in the age of refugees (1 July 2015). http://www.unhcr.org/5592bd059.pdf. Accessed 05 Sept 2017
United Nations High Commissioner for Refugees UNHCR (2011) Refugees and Asylum-Seekers in Distress at Sea – how best to respond?, Expert Meeting in Djibouti, 8 to 10 November 2011, Summary Conclusions at http://www.refworld.org/pdfid/4ede0d392.pdf. Accessed 06 Oct 2017; overwiev at http://unhcr.org/cgi-bin/texis/vtx/search?page=search&skip=117&docid=&cid=49aea93aa7&scid=49aea93a57&comid=4ef33aa76. Accessed 06 Oct 2017
United States Coast Guard Addendum to the United States Search and Rescue Supplement to the International Aeronautical and Maritime Search and Rescue Manual (2013) COMDTINST M16130.2F (January 2013). http://ppgroup.uscgaux.info/manuals/USCG_SAR_Addendum.pdf. Accessed 05 Sept 2017
U.S. Navy Regulations (1990) https://doni.documentservices.dla.mil/navyregs.aspx. Accessed 05 Sept 2017
U.S. Coast Guard Regulations (1992) http://govdocs.rutgers.edu/mil/cg/CIM_5000_3B.pdf. Accessed 05 Sept 2017
Walker GK (1995) Definitions for the law of the Sea: terms not defined by the 1982 convention. Martinus Nijhoff
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Button, R. (2018). International Law and Search and Rescue. In: Schildknecht, J., Dickey, R., Fink, M., Ferris, L. (eds) Operational Law in International Straits and Current Maritime Security Challenges. Operational Maritime Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-72718-9_7
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Publisher Name: Springer, Cham
Print ISBN: 978-3-319-72717-2
Online ISBN: 978-3-319-72718-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)