Assisting people in distress at sea is a duty of all states and shipmasters under international law. Core provisions on SAR at sea are set out in the 1974 International Convention for the Safety of Life at Sea (SOLAS), the 1979 International Convention on Maritime Search and Rescue (SAR Convention), and the 1982 UN Convention on the Law of the Sea (UNCLOS). In general, the shipmaster of any vessel (both private and government) has an obligation to render assistance to those in distress at sea without regard to their nationality, status, or the circumstances in which they are found. A rescue operation terminates only when survivors are delivered to a ‘place of safety’, which should be determined taking into account the particular circumstances of the case, as specified by the 2004 amendments to the SAR Convention adopted by the International Maritime Organization (IMO), which only one Mediterranean EU Member State, Malta, did not ratify.
The IMO Guidelines on the treatment of persons rescued at sea further specify that a ‘place of safety’ is “a place where the survivors’ safety is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met”. The Appendix to the guidelines recalls the prohibition of refoulement. Therefore, disembarkation must be avoided in places where the lives of refugees and asylum seekers could be at risk of persecution, torture or other serious harm.
The 2022 Joint Statement on Place of Safety by UN entities and the 2018 UN Global Compact for Safe, Orderly and Regular Migration (Objective 8) reaffirmed these basic rules and principles.
For maritime border surveillance operations coordinated by the European Border and Coast Guard Agency (Frontex), the EU Sea Borders Regulation (Regulation (EU) No. 656/2014) incorporates the obligation to render assistance at sea and to rapidly identify a place of safety where rescued people can be disembarked in compliance with fundamental rights and the principle of non-refoulement. This prohibits disembarkation of rescued persons in a country where there is a risk of torture or ill-treatment, irrespective of any request for asylum by the rescued individuals.
The duty to fully respect the right to life (Article 2 of the EU Charter of Fundamental Rights and the European Convention on Human Rights) and to save lives at sea rests primarily on EU Member States. These core obligations cannot be circumvented under any circumstances, including for considerations of external border control.
The European Commission Recommendation (EU) 2020/1365 on cooperation among Member States concerning SAR operations carried out by private vessels encourages Member States to ensure rapid disembarkation of rescued people at a place of safety, where their fundamental rights are guaranteed, in conformity with the EU Charter and the principle of non-refoulement.
In August 2022, in the Sea Watch case (Joined Cases C-14/21 and C-15/21) the Court of Justice of the EU clarified that the port state may inspect SAR ships operated by humanitarian organisations and may seize such vessels, but only in the event of a clear risk to safety, health or the environment.
