International Human Rights Law and the Law of the Sea in the Context of Rescuing Coordination by Dr. Seline Trevisanut 24 aug. 2012

1. International Human Rights Law
and the Law of the Sea
in the Context of Rescuing Coordination
Dr. Seline Trevisanut
Marie Curie Fellow (NILOS) – s.trevisanut@uu.nl
Florence, 3 October 2012
Europeanization and Externalization of Border Control and Migrant Detention in Italy and the EU

2. Overview of this presentation
• Duty to render assistance
• Search and rescue cooperation
• SAR operations in the context of
migration (border) control
• Human rights at sea
• Concluding Remarks

3. Duty to render assistance
Article 98 LOSC
•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

4. Search and rescue cooperation
• Article 3(1)(9) of the SAR (as amended in 2004):
Parties shall co-ordinate and co-operate to ensure
that masters of ships providing assistance by
embarking persons in distress at sea are released
from their obligations with minimum further
deviation from the ships’ intended voyage,
provided that releasing the master of the ship from
the obligations does not further endanger the
safety of life at sea.

5. The Party responsible for the search and rescue
region in which such assistance is rendered shall
exercise primary responsibility for ensuring such
co-ordination and co-operation occurs, so that
survivors assisted are disembarked from the
assisting ship and delivered to a place of safety,
taking into account the particular circumstances
of the case and guidelines developed by the
Organisation. In these cases, the relevant Parties
shall arrange for such disembarkation to be
effective as soon as reasonably practicable.

6. • IMO Maritime Safety Committee (MSC)
Guidelines (2004)
– “place of safety” means a location where the rescue
operations can be considered as completed
– the state in whose SAR zone the operation took
place has the duty to provide or, at least, to secure a
place of safety for the rescued persons
• IMO Facilitation Committee (FAL) “Principles
relating to administrative procedures for
disembarking persons rescued at sea” (2009)

7. SAR operations in the context of migration
(border) control
• Irradiation of sovereignty on the sea
• Two kinds of maritime borders:
– Delimitation
– Functional maritime frontier
• Functional jurisdiction at sea

8. Human rights at sea
• Xhavara et al. v. Italy and Albania, Appl. No.
39473/98, Admissibility Decision of 11 January
2001
the mere existence of an agreement conferring
enforcement powers to a state is sufficient for
proving the exercise of jurisdiction.

9. • Medvedyev et al. v. France, Appl. No.
3394/03, Judgment of 29 March 2010
French authorities exercised an effective,
continuous and uninterrupted control on the
vessel (§ 67)

10. • Hirsi Jamaa and others v. Italy, Application No.
27765/09, Judgement of 23 February 2012
Italy cannot circumvent its “jurisdiction” under the
Convention by describing the events at issue
as rescue operations on the high seas. In
particular, the Court cannot subscribe to the
Government’s argument that Italy was not
responsible for the fate of the applicants on
account of the allegedly minimal control
exercised by the authorities over the parties
concerned at the material time (§ 79).

11. Human rights potentially violated in
SAR operations
• Right to emigrate
• Right to seek asylum
• Prohibition of torture and other inhumane and
degrading treatments
• Principle of non refoulement
• Right to freedom and security
• Right to an effective remedy

12. Concluding remarks
• Limits of Hirsi case law
• UNHCR, IMO, Rescue at Sea, A Guide to
principles and practice as applied to migrants
and refugees (2007)
• Complementarity between law of the sea and
international human rights