Legal Analysis: UNCLOS and the Duty to Render Assistance
Following on from my recent introductory piece about the Sea Watch project, I thought it apposite to briefly address the basis in law upon which the Sea Watch and other vessels sailing in the Mediterranean render assistance to those in distress at sea, and, more to the point, the migrants attempting the crossing between North Africa and Europe.
Article 98 (1) of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) requires masters of vessels sailing under the flag of signatory States to render assistance to those in distress at sea. It is primarily a State duty fulfilled by the master of the vessel. The master is freed from this requirement only in circumstances where the assisting vessel, the crew or the passengers on board would be seriously endangered as a result of rendering assistance to those in distress.
Other international conventions iterate this requirement and the attendant limitation. Regulation V/33 of the International Convention for the Safety of Life at Sea 1974 (SOLAS) imposes an obligation on masters of vessels who are in a position to provide assistance to do so. Further, Chapter 2.1.10 of the International Convention on Maritime Search and Rescue 1979 (SAR) obliges States Party to the Convention to ensure that assistance is provided to any person in distress at sea, “regardless of the nationality or status of such a person or the circumstances in which that person is found”.
Finally, the position at treaty law with respect to the duty to render assistance is a general reflection of customary international maritime law. This means that masters of vessels flying the flag of non-signatory States are also required to render assistance where safe and able to do so.
The law is therefore clear. States, both signatories and non-signatories to the above conventions, are duty bound to ensure those in distress at sea are rendered assistance on a non-discriminatory basis. Whether vessels sailing under their flag operate in either a private or public capacity, the requirements incumbent upon the masters of the vessels are the same.
As a vessel flying the flag of Germany, a State party to all the above conventions, the Sea Watch will ensure that it fulfils all duties incumbent upon it under international law.