IRREGULAR MIGRATION IN THE MEDITERRANEAN AND THE CHALLENGES OF OBSERVING THE DUTY TO RENDER ASSISTANCE AT SEA.

• Author: Eruaga, Osatohanmwen Osamudiamen

TABLE OF CONTENTS I. Introduction 34 II. Understanding the Legal Obligation to Migrant Vessels 36 A. The Origin and Rationale of the Duty 36 B. The Legal Framework of the Duty to Render Assistance by Masters of Vessels 39 C. Enforcement of the Obligation to Render Assistance by Commercial Vessels 42 D. The Human and Humanitarian Rights and Responsibilities of the Commercial Vessel 44 III. Issues Arising in the Involvement of Commercial Shipping Vessels in Humanitarian Actions At Sea 47 A. The Risk to Safety and Security of the Vessel and Crew 47 B. Political Attitude of Coastal States 49 C. Economic Loss 52 D. Changing Attitudes/Behavior to the Observation of the Duty to Render Assistance by Commercial Vessels 55 IV. Prospects of Mitigating the Disruption of Commercial Voyages At Sea 57 V. Conclusion 61 I. INTRODUCTION

Vessels at sea are under a moral obligation to rescue lives in peril as a matter of general maritime custom. However, currently there are an extraordinary number of unseaworthy vessels at sea, overcrowded with economic migrants and refugees desperate to arrive in European countries. These conditions translate to an increased pressure on commercial shipping's role in performing the legal duty to render assistance at sea. This is particularly noticeable in states bordered by the Mediterranean Sea. Figures from various bodies paint a picture of the extent of involvement of commercial vessels. Statistics provided by the Italian coast guards reveal that in 2014, over 250 merchant vessels diverted from their commercial activities to render assistance at sea. (1) The UN Secretary General indicates that 1,300 commercial vessels were diverted to render assistance at sea for the combined years of 2014 and 2015. (2) Similarly, in 2016, the International Organisation for Migration (IOM) recorded 13,888 persons saved by commercial vessels. (3)

This article explores the challenges that the commercial shipping sector faces, given the current migrant crises which have bedevilled the oceans, in fulfilling the moral and legal obligation of saving lives at sea contained in several international and municipal laws. It argues that the existence of a weak enforcement framework, combined with challenges in carrying out the obligation to render assistance, has dire implications for shipping as global economic activity as well as the humanity-at-sea framework. This article advocates for the enhancement of the search and rescue capabilities of coastal states occurring concomitantly with commitments to humanitarian principles as a method to combat the current issue in the Mediterranean Sea. Additionally, the paper supports a global community approach that demands cooperation from all states in terms of specific action to reduce illegal migration through concerted efforts to collectively address the root causes of these dangerous voyages.

The paper consists of five parts, including of the introduction and conclusion. Part II of the paper identifies and examines the framework of the international legal regime that creates the obligation to assist at sea, as well as the enforcement of that obligation. This part of the paper argues that the existence of jurisdictional peculiarity of the maritime domain creates room for weak enforcement of the obligation imposed on masters of commercial vessels; because of this weak enforcement, compliance with the legal regime tilts more to adherence to moral values rather than legal compulsion. Part III examines the challenges to 'humanitarianism' that masters of commercial vessels face and how, in the context of the current migration crises, these challenges act as a disincentive to assist persons stranded at sea. It also considers the practices that weak enforcement negatively stimulates among captains of private merchant vessels. Part IV considers the prospects of mitigating the challenges that commercial vessels face in carrying out the obligation to render assistance. While it remains imperative that the ship master's obligation should continue, especially with the existence of the crisis, there is need for global cooperation to holistically address the problem of illegal migration.

2. UNDERSTANDING THE LEGAL OBLIGATION TO MIGRANT VESSELS

   Rendering assistance to persons stranded at sea is a pivotal principle amongst the traditional hallmarks of the Law of the Sea. (4) It is now recognized as one of the rare instances in which public international law, which ordinarily only applies to states, imposes a duty on individuals. (5)

   1. The Origin and Rationale of the Duty

      The duty to render assistance to persons in peril at sea was initially recognized under maritime customs first as a moral duty and then as a legal duty owed by a shipmaster to his crew members who went overboard. (6) In modern times, this duty is based on public policy from the standpoint that such persons are at the risk of having no other timely and readily available source of help. (7) Scholars explain that it was against the background of the mortality among sailors prior to the 20th century that a recognition of a legal obligation to render assistance emerged. (8) The English court in Scaramanga v. Stamp (9) affirmed that:

      [t]he impulsive desire to save human life when in peril is one of the most beneficial instincts of humanity, and is nowhere more salutary in its results than in bringing help to those who, exposed to destruction from the fury of winds and waves, would perish if left without assistance. To all who have to trust themselves to the sea, it is of the utmost importance that the promptings of humanity in this respect should not be checked or interfered with. (10) Similarly, in the United States (U.S.) case of Peninsular & Oriental Steam Navigation Co. v. Overseas Oil Carriers, (11) the court asserted that "(t)he sea is a hard master and those who sail her are united in a common struggle. It is their tradition to answer calls of distress regardless of cost or peril." (12) Thus, while it is the case that general principles of law may not recognize a "good Samaritan" rule which requires a person to come to the aid of a stranger in peril, such an obligation is certainly found in the context of admiralty. (13) Although the scope of this duty was initially limited to crew members, it has been extended over time to include strangers in peril, which includes migrants stranded at sea. (14)

      Although not a new phenomenon, the hazards associated with migration by boat have become notorious in contemporary history with the increased incidents of tragedies involving people who perish at sea due to the use of ill-equipped boats and unseaworthy vessels. (15) Asylum seekers (and in recent years, economic migrants) have continually engaged in mass movement to reach other destination countries which they feel present better opportunities for them. (16) A voyage across the Mediterranean Sea is considered the deadliest sea crossing in the world. (17) A total of 363,401 arrived in Europe by sea in 2016 and at least 5,082 persons were declared missing or dead. (18) Since the beginning of 2017, there have been 77,000 attempts at crossing the Mediterranean Sea to Europe with at least 2,247 migrant deaths (as of the beginning of July 2017). (19) This marks the fourth consecutive year that migrant death/loss in the Mediterranean has exceeded 2,000. (20) The duty on commercial vessels, especially within the Mediterranean traffic route, are thus real and imminent.

      The obligation of a shipmaster to aid persons in peril at sea is two-pronged. In the first instance, the master is saddled with the obligation to render assistance. Secondly, he transfers the persons in cooperation with the appropriate coastal states, to a place of safety for disembarkation.

   2. The Legal Framework of the Duty to Render Assistance by Masters of Vessels

      Beginning with the Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea of 1910, the famous maritime principle of rendering help received expression in several treaties, aimed at standardising the rules of assistance. (21) Article 10 provides that "(e)very master is bound, so far as he can do so without serious danger to his vessel, her crew and passengers, to render assistance to everybody, even though an enemy, found at sea in danger of being lost." (22) The person whose life is saved does not owe the master any compensation or reward for carrying out this obligation; the states are responsible for adopting the necessary measure to enforce the duty. (23)

      The same duty to render assistance is expressed in the United Nations Convention on the Law of the Sea (UNCLOS). (24) UNCLOS mandates flag states to "require the masters of a ship frying its flag... to render assistance to any person found at sea in danger of being lost." (25) The obligation also requires the vessel rendering assistance "to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance." (26)

      The broad framework of the duty of commercial vessels to assist created by UNCLOS is supplemented by provisions in Safety of Life at Sea Convention (SOLAS). (27) Chapter V, Regulation 33-1 mandates:

      [t]he master of a ship at sea which is in a position to be able to provide assistance, on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so. (28) The SOLAS Convention incorporates the Global Maritime Distress and Safety System (GMDSS), to alert all search and rescue operators, including shipping vessels in the immediate vicinitv, of anv vessel in distress. (29) This improves the chances of saving lives at sea. (30)

      The duty to assist is also implied from the provisions of the Search and Rescue (SAR) Convention which, while not applicable directly to commercial vessels, requires that states...