Title: Human Rights Obligations in Maritime Search and Rescue
Domain: Law

Question: Although international law clearly stipulates that countries have the obligation to rescue those in distress at sea, the existing maritime law documents do not incorporate human rights obligations into them. This has led to frequent human rights violations in rescue operations. How to establish appropriate systems to address the issue of the disconnection between maritime rescue and human rights protection?

Background: 1. The general obligation to provide assistance to distressed ships has existed since ancient times, but the documents that stipulate maritime rescue obligations do not include human rights obligations. | 2. With the increase in the number of maritime personnel, the obligation to provide assistance to those in distress is more challenging and controversial for countries and captains. On one hand, the demand for search and rescue operations for those in danger at sea is constantly increasing; on the other hand, countries adopt strict border control measures to prevent immigrants from entering their territory. Whether these practices are in line with international law has sparked intense discussions. | 3. Due to the cruel acts of smugglers and the law enforcement actions of various countries, migrants may face serious human rights violations when crossing the sea. Although in the maritime law documents that stipulate rescue obligations, countries do not have human rights obligations, people still generally believe that countries are bound by human rights obligations when conducting operations at sea (including maritime rescue operations).

Definitions: 1.Coastal State：Countries that have jurisdiction over adjacent maritime areas (such as internal waters, territorial seas, EEZs, etc.) in accordance with international maritime law and undertake the corresponding duties such as coordinating maritime search and rescue operations and building service facilities. | 2.Effective Control：It refers to the substantive control state that a country exercises over individuals or vessels in distress at sea through physical contact, legal dominance, or actual influence. This is the core legal criterion for determining whether a country bears human rights obligations in maritime search and rescue operations. | 3.Distress Phase：The circumstances stipulated in the SAR Convention where there is a reasonable certainty that a ship or personnel is facing a serious and imminent danger and immediate assistance is required. | 4The Principle of Non-refoulement：The core principles of the refugee law regarding the protection of refugees and related individuals stipulate that it is prohibited to send refugees or other protected individuals back to countries or regions where their lives, freedom are at serious risk, or where they may face persecution, torture, inhumane or degrading treatment.

Methodology: 1. Normative Analysis Method: Systematically interpret the core treaties of international maritime law and human rights law, including LOSC, SAR Convention, ICCPR, etc., and clarify the specific provisions of the legal texts regarding the obligation to rescue and human rights clauses. Cross-compare the normative systems of maritime law and human rights law to form an analytical framework of normative complementarity. | 2. Case Analysis Method: Rely heavily on international judicial decisions to support theoretical analysis. For example, the Hirsi Jamaa v Italy case determined that Italy's pushing migrants back to Libya violated the non-refoulement principle, and the A.S. v Malta case established the jurisdiction of coastal states in the coordination of search and rescue areas, illustrating the constraints of human rights law on the inaction of states in search and rescue. Refer to domestic judicial decisions of countries such as Italy and Greece, such as the Carola Rackete case, to analyze how states incorporate international human rights law into domestic law for application. | 3. Empirical Analysis Method: Review the search and rescue policies of the European Union and countries along the Mediterranean coast, revealing the gap between national practices and legal obligations. Analyze the "Missing Migrants Project" of the International Organization for Migration (IOM) and the reports of the United Nations High Commissioner for Refugees (UNHCR) on migrant rescue, supporting the universality of maritime human rights violations. | 4. Comparative Analysis Method: Compare search and rescue cases in regions such as the Mediterranean, Aegean Sea, and North Atlantic, analyzing the differences in the definitions of "distress stage" and "safe location" by different countries. Compare the definitions of "jurisdiction" in maritime law and human rights law, such as the application field distinction between "flag state jurisdiction" in maritime law and "effective control jurisdiction" in human rights law, and clarify the competition issues of jurisdiction in search and rescue.

Answer: 1.The nature of the duty to render assistance: | Under the United Nations Convention on the Law of the Sea (LOSC) and the International Convention on Maritime Search and Rescue (SAR Convention), the duty to render assistance applies to all maritime zones and all vessels, regardless of the nationality or status of persons in distress, and whether they are involved in unlawful activities. | The obligation to provide assistance binds flag States and coastal States. The responsibility for rescuing persons in distress primarily lies with shipmasters: flag States must take necessary and appropriate measures to ensure that vessels flying their flag assist persons in distress, but they are not obliged to guarantee the rescue of all such persons. Coastal States should "promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea, and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States". This indicates that the duty to render assistance is of a due diligence nature, rather than a mandatory obligation to rescue all persons in distress, and such due diligence obligations may evolve over time. | The relationship between the duty to render assistance and the right to life has attracted increasing attention. Interpreting this duty from a human rights perspective aims to impose an obligation on States to take reasonable and positive measures to protect the right to life at sea, without imposing an excessive burden on them. | | 2.Human rights jurisdiction in maritime SAR | The specific location of an incident is a key determinant in determining which State has human rights jurisdiction. | Under international law of the sea and human rights law, coastal States have clear jurisdiction over their territorial sea and internal waters. Navigable boundary rivers also fall within the jurisdiction of riparian States. Coastal States exercise limited human rights jurisdiction in the contiguous zone, exclusive economic zone (EEZ), and continental shelf, primarily responsible for providing assistance to persons in distress within a safety zone of approximately 500 metres. | Jurisdiction in the high seas is more complex. When a rescuing State conducts a search and rescue (SAR) operation, jurisdiction is triggered by "effective control" if there is some form of physical contact between State agents and persons in distress, or if the State exercises control over the situation. Once persons in distress are rescued and board a rescue vessel, they fall under the jurisdiction of the flag State. When a coastal State carries out SAR operations within its search and rescue region (SRR), it may trigger jurisdiction by assisting in the operation. For example, in the A.S. case, the UN Human Rights Committee held that a coastal State’s coordination of SAR constitutes "effective control" over the operation, without excluding the possibility of concurrent jurisdiction between two States. Even if a State fails to respond to a distress call in another State’s SRR or on the high seas, jurisdiction may still be triggered by a "special relationship of dependency", as seen in the A.S. case where Italy was found to have jurisdiction due to its proximity to the distressed vessel and capacity to rescue. | Cooperative SAR cannot serve as a tool to evade human rights obligations. Whether or not a State directly participates in the rescue, if it exerts substantial influence over the actions of cooperative parties through "instructions, coordination, or resource support", it may trigger jurisdiction. States must ensure that cooperative parties have the capacity to protect human rights; otherwise, they shall not transfer rescue responsibilities. Human rights supervision must be imposed on rescue operations by private actors to prevent them from becoming "liability-free tools" for States. | | 3.When is the duty to render assistance triggered? | According to the International Convention on Maritime Search and Rescue (SAR Convention), the distress phase refers to a situation where there is reasonable certainty that a vessel or persons are facing grave and imminent danger requiring immediate assistance. The "danger" does not need to reach the level of directly threatening life. Some States interpret "distress" too mechanically and strictly, taking only vessel sinking as the criterion while ignoring the overall condition of the vessel. A common understanding of distress situations is of great importance for shipmasters, as it helps them not only determine when to conduct maritime search and rescue (SAR) operations, but also when to avoid intervention. | A human rights-oriented approach to SAR should meet two requirements: first, distress calls should be responded to as soon as possible to enable States and shipmasters to better assess whether a vessel is in distress and what further rescue measures should be taken; second, the determination of whether a vessel is in distress should not be based solely on weather or the vessel’s technical characteristics, but should focus primarily on the needs of the persons on board. | | 4.How should a human rights-compliant SAR operation be planned and conducted? | The compliance of rescue operations with human rights law is primarily assessed based on the rescue methods adopted by States. Jurisprudence of the European Court of Human Rights (ECtHR) holds that if a rescue operation may lead to the death of one or more persons, authorities must carefully plan and control the operation to ensure the maximum minimization of risks to life, and must not be negligent in the choice of actions. States must carefully plan search and rescue (SAR) operations, taking into account key factors such as weather conditions and the number of persons in distress, and ensure that appropriate rescue units and equipment are available to carry out the mission. In addition, States need to formulate appropriate evacuation plans and ensure that medical assistance is readily available. | In SAR operations, the use of force should be avoided whenever possible; if unavoidable, it must not exceed the scope of reasonableness and necessity. For smugglers or migrants who refuse assistance, SAR operations should not be transformed into law enforcement actions. When a person dies during a rescue operation, States shall investigate the specific circumstances of the person's death or disappearance and, where appropriate, punish those responsible. The duty to investigate is likewise a means rather than an end. | | 5.When does the duty to render assistance terminate? | The termination of the duty to render assistance is not determined by the formal criterion of "disembarkation of persons", but by the substantive requirement of "establishment of a place of safety". The SAR legal regime lacks clear guidance on where rescued migrants should land. Although there are multiple landing options, no specific choice is regarded as a customary obligation. According to the International Convention on Maritime Search and Rescue (SAR Convention) and guidelines of the International Maritime Organization (IMO), a place of safety refers to a location where persons can obtain basic security guarantees, medical assistance, and legal protection upon arrival, and the assisting vessel itself is not generally considered a place of safety. Under international refugee law and human rights law, a place of safety must also meet the following conditions: it must not violate the principle of non-refoulement, prohibit the return of migrants to countries where they face persecution, forbid torture and inhumane treatment, and ensure fundamental rights such as access to legal counsel and communication with the outside world.

Checklist: 1. Clarify the obligation to rescue persons in distress at sea under the law of the sea, and note the lack of explicit human rights obligations in related legal documents.  
2. Define the duty to render assistance as due diligence, requiring flag states, coastal states, and shipmasters to fulfill specific responsibilities under UNCLOS.  
3. Clarify human rights jurisdiction in maritime search and rescue, including internal waters, territorial seas, and beyond, using the effective control test and flag state jurisdiction.  
4. Specify the trigger for assistance: a ship in grave and imminent danger, judged by multiple factors and not only sinking.  
5. Clarify human rights-compliant requirements for search and rescue: planning, equipment, minimal use of force, and independent investigations.  
6. Define termination of the duty: delivery of rescued persons to a safe place that respects non-refoulement and guarantees asylum access.