A shift in policy on the rescue of persons in distress at sea raises urgent questions of international law.

Amid the furore surrounding the decision by EU ministers to end support for search-and-rescue operations for migrants in danger of drowning in the Mediterranean, much attention has been directed to the moral issues this raises.

The Home Office has defended this position, arguing that these operations act as a ‘pull-factor’ for migrants and that the inevitable consequence of leaving people to ‘sink or swim’ will be a reduction in the readiness of migrants to attempt the perilous crossing from north Africa. There has been much condemnation of this position, but behind this lies the further question of how tenable the ministers’ position might be in the light of international law.

The International Chamber of Shipping issued a statement saying that the rescue of all persons in distress at sea – including illegal migrants – is ‘an obligation under international maritime law, as well as a humanitarian duty’. It said: ‘Whatever may be decided by policy-makers in EU member states, the legal and humanitarian obligation of merchant ships to provide assistance to anyone in distress at sea will remain unchanged.’

The phenomenon of people taking to the seas in search of safety, refuge and better economic conditions is not new. The mass exodus of Vietnamese boat people throughout the    was followed in the 1990s by large-scale departures from places such as Albania, Cuba and Haiti. The Mediterranean is now one of the most common areas where refugees in distress are rescued, often from overcrowded and unseaworthy craft.

The duty of the master in this instance is to render assistance without regard to nationality, status or circumstances in which such people are found. This is a maritime tradition as well as an obligation enshrined in international law under the UN International Maritime Organization’s (IMO) Safety of Life at Sea Convention, to which virtually every maritime nation is a party, as well as the convention on Maritime Search and Rescue.

However, this obligation of a vessel’s master to render assistance is complemented by a corresponding obligation on IMO member states to co-operate in rescue situations, thereby relieving the master of the responsibility to care for survivors, and allowing individuals who are rescued at sea to be delivered to a place of safety.

There is some ambiguity over what the obligation of individual states means in practice. What is clear is that they are required to co-ordinate and co-operate with masters to ensure that ships providing assistance by embarking persons in distress are released from their obligations with minimum further delay to the intended voyage, as well as arranging disembarkation to a ‘place of safety’ as soon as possible even when they may lack documentation.

How the provisions of such international agreement affects a state’s obligation to provide direct search and rescue is a different matter.

For the EU and the question of migrants in distress in the Mediterranean, while it will be much more difficult for merchant ships to save lives at sea without the adequate provision of search and rescue by member states, a question remains over both the legal and humanitarian obligations of such states to continue to provide these services.

Arguments that international law aimed at ensuring that those in distress at sea are offered every assistance and protection must apply to all those in such a situation is persuasive on humanitarian grounds. The challenge that EU member states face in light of this recent policy statement is how to justify what is, on its face, a unilateral derogation from the international obligations to which they are party solely on the grounds of domestic immigration policy.

It will be a regrettable situation where masters of vessels offering assistance in accordance with international law can no longer rely on the support of EU member states both at sea and at point of disembarkation in a place of safety.

Jack Hatcher is a solicitor at Hill Dickinson