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The Duty of the Shipmaster to Render Assistance at Sea under International Law
Series: - Queen Mary Studies in International Law, Volume: 41
Author:
In The Shipmaster's Duty to Render Assistance at Sea under Internationl Law, Felicity G. Attard examines the web of applicable international rules regulating one of the most fundamental obligations at sea. The study explores the shipmaster's duty to render assistance at sea under treaty law, customary international law, and other international instruments. It focuses on an assessment of the duty in light of contemporary challenges posed by the phenomenon of irregular migration by sea, a problem which has intensified in recent years. Whilst Article 98 of the 1982 United Nations Convention on the Law of the Sea provides the basis for the regime regulating the duty, the study addresses other relevant rules adopted by the International Maritime Organization and the International Labour Organization. Due to the humanitarian ramifications of the rendering of assistance at sea, the book considers further obligations imposed under human rights law and refugee law. The study presents a comprehensive analysis of shipmaster's responsibilities in rescue operations, and their role in the fulfilment of States' international obligations in the rendering of assistance.
Felicity G. Attard, L.L.D. (Melit.), Ph.D. (IMO International Maritime Law Institute), is a lecturer at the University of Malta. She has published numerous articles on international law issues.
Foreword
xi
Preface
xii
Acknowledgements
xiii
Abbreviations
xv
Table of Cases
xxiv
Table of Treaties
xxx
Table of Legislation
xxxiii
Table of Selected Instruments
xxxviii
General Introduction
1 The Shipmaster’s Duty to Render Assistance at Sea: Challenges and Considerations Posed by Irregular Migration by Sea
1.1 Introduction
1.2 The Shipmaster’s Duty to Render Assistance at Sea in Irregular Migrant Rescue Operations
1.3 Safety, Seaworthiness, and Security Challenges
1.4 Commercial Challenges
1.5 Human Rights and Refugee Rights Considerations
1.6 Conclusion
2 Historic Development of the Duty to Render Assistance at Sea
2.1 Introduction
2.2 The Genesis of the Duty to Render Assistance at Sea
2.3 Early International Efforts to Regulate the Duty to Render Assistance at Sea
2.3.1The 1910 Salvage Convention
2.3.2The 1910 Collisions Convention
2.3.3The 1914
SOLAS
2.4 Conclusion
3 The Duty to Render Assistance at Sea under International Law
3.1 Introduction
3.2 The Duty to Render Assistance at Sea under Treaty Law
3.2.1The Duty to Render Assistance at Sea under the
HSC
3.2.1.1 The
HSC
: Introduction
3.2.1.2 The Duty to Render Assistance at Sea under the
ILC
Provisional Articles on the High Seas
3.2.1.3 The Duty to Render Assistance at Sea:
UNCLOS I
Deliberations and the
HSC
3.2.2The Duty to Render Assistance at Sea under
UNCLOS
3.2.2.1 The Development of
UNCLOS
3.2.2.2 The Duty to Render Assistance at Sea:
UNCLOS III
Deliberations
3.2.2.3 The Duty to Render Assistance at Sea under
UNCLOS
Articles 18(2) and 98
3.2.3The Duty to Render Assistance at Sea under
IMO
Treaties
3.2.3.1 The 1974
SOLAS
3.2.3.2 The 1979
SAR
3.2.3.3 The 2004 Amendments to the 1974
SOLAS
and the 1979
SAR
3.2.3.4 The 1989 Salvage Convention
3.3 The Duty to Render Assistance at Sea under Customary International Law
3.3.1The Role of Treaties in the Creation of Customary International Law Regulating the Duty to Render Assistance at Sea
3.3.2State Measures to Enforce the Duty to Render Assistance at Sea in State Practice
3.4 The Duty to Render Assistance at Sea under Soft Law
3.4.1
IMO
and
ICS
Guidelines
3.4.1.1 Cooperation and Communication
3.4.1.2 Level of Preparedness
3.4.1.3 Actions to Be Implemented during and after the Embarkation of Rescued Persons
3.4.1.4 Disembarkation of Rescued Persons to a Place of Safety
3.4.1.5 Respect for the Human Rights and Refugee Rights of Rescued Persons
3.5 Conclusion
4 State Measures Relating to the Duty of the Shipmaster to Render Assistance under the Law of the Sea
4.1 Introduction
4.2 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Treaty Law
4.2.1Flag State Jurisdiction
4.2.1.1 Safety and Seaworthiness
4.2.1.2 Crew
4.2.1.3 Security
4.2.2Coastal State Jurisdiction
4.2.2.1 Internal Waters
4.2.2.2 Territorial Sea
4.2.2.3 Contiguous Zone
4.3 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Customary International Law
4.3.1Customary International Law Rules Relating to the Shipmaster’s Duty to Render Assistance Reflected in Treaty Law
4.3.2Customary International Law Rules Relating to the Shipmaster’s Duty to Render Assistance at Sea Not Found in Treaty Law
4.4 Conclusion
5 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Human Rights Law and Refugee Law
5.1 Introduction
5.2 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Human Rights Law
5.2.1The Interaction between the Law of the Sea and Human Rights Law
5.2.2The Jurisdictional Basis for the Application of Human Rights Law at Sea
5.2.2.1 De Jure Jurisdiction
5.2.2.2 De Facto Jurisdiction
5.2.2.3 De Facto and De Jure Jurisdiction in Rescue at Sea Operations
5.2.3State Duties to Protect Human Rights at Sea
5.2.3.1 Right to Life
5.2.3.2 Prohibition of Torture and Inhuman and Degrading Treatment or Punishment
5.3 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Refugee Law
5.3.1The Extraterritorial Application of Non-refoulement
5.3.2Place of Safety and Respect for Non-refoulement
5.3.3Processing of Asylum Claims
5.4 Conclusion
6 State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea
6.1 Introduction
6.2 Doctrine of State Responsibility under International Law
6.3 Attribution of State Responsibility under International Law
6.3.1General Principles to Gauge Attribution
6.3.2Conduct of Private Persons Attributable to the State
6.3.3Due Diligence and the Attribution of State Responsibility
6.3.3.1 An Obligation of Conduct, Not of Result
6.3.3.2 Reasonable Measures
6.3.3.3 Relativeness
6.3.3.4 The Exercise of Due Diligence Obligation and Violations of International Obligations by Private Persons
6.4 State Responsibility and the Shipmaster in Rescue at Sea Operations
6.4.1Flag State Responsibility and the Shipmaster in Rescue at Sea Operations
6.4.1.1 Obligations under the Law of the Sea
6.4.1.2 Obligations under Human Rights Law and Refugee Law
6.4.1.3 Case Studies
6.4.2Coastal or
SAR
State Responsibility and the Shipmaster in Rescue at Sea Operations
6.4.2.1 Obligations under the Law of the Sea
6.4.2.2 Obligations under Human Rights Law and Refugee Law
6.4.2.3 Case Studies
6.5 Conclusion
General Conclusions
Bibliography
Index
Preface
Acknowledgements
Abbreviations
Table of Cases
Table of Treaties
Table of Legislation
Table of Selected Instruments
General Introduction
1 The Shipmaster’s Duty to Render Assistance at Sea: Challenges and Considerations Posed by Irregular Migration by Sea
1.1 Introduction
1.2 The Shipmaster’s Duty to Render Assistance at Sea in Irregular Migrant Rescue Operations
1.3 Safety, Seaworthiness, and Security Challenges
1.4 Commercial Challenges
1.5 Human Rights and Refugee Rights Considerations
1.6 Conclusion
2 Historic Development of the Duty to Render Assistance at Sea
2.1 Introduction
2.2 The Genesis of the Duty to Render Assistance at Sea
2.3 Early International Efforts to Regulate the Duty to Render Assistance at Sea
2.3.1The 1910 Salvage Convention
2.3.2The 1910 Collisions Convention
2.3.3The 1914
2.4 Conclusion
3 The Duty to Render Assistance at Sea under International Law
3.1 Introduction
3.2 The Duty to Render Assistance at Sea under Treaty Law
3.2.1The Duty to Render Assistance at Sea under the
3.2.1.1 The
3.2.1.2 The Duty to Render Assistance at Sea under the
3.2.1.3 The Duty to Render Assistance at Sea:
3.2.2The Duty to Render Assistance at Sea under
3.2.2.1 The Development of
3.2.2.2 The Duty to Render Assistance at Sea:
3.2.2.3 The Duty to Render Assistance at Sea under
3.2.3The Duty to Render Assistance at Sea under
3.2.3.1 The 1974
3.2.3.2 The 1979
3.2.3.3 The 2004 Amendments to the 1974
3.2.3.4 The 1989 Salvage Convention
3.3 The Duty to Render Assistance at Sea under Customary International Law
3.3.1The Role of Treaties in the Creation of Customary International Law Regulating the Duty to Render Assistance at Sea
3.3.2State Measures to Enforce the Duty to Render Assistance at Sea in State Practice
3.4 The Duty to Render Assistance at Sea under Soft Law
3.4.1
3.4.1.1 Cooperation and Communication
3.4.1.2 Level of Preparedness
3.4.1.3 Actions to Be Implemented during and after the Embarkation of Rescued Persons
3.4.1.4 Disembarkation of Rescued Persons to a Place of Safety
3.4.1.5 Respect for the Human Rights and Refugee Rights of Rescued Persons
3.5 Conclusion
4 State Measures Relating to the Duty of the Shipmaster to Render Assistance under the Law of the Sea
4.1 Introduction
4.2 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Treaty Law
4.2.1Flag State Jurisdiction
4.2.1.1 Safety and Seaworthiness
4.2.1.2 Crew
4.2.1.3 Security
4.2.2Coastal State Jurisdiction
4.2.2.1 Internal Waters
4.2.2.2 Territorial Sea
4.2.2.3 Contiguous Zone
4.3 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Customary International Law
4.3.1Customary International Law Rules Relating to the Shipmaster’s Duty to Render Assistance Reflected in Treaty Law
4.3.2Customary International Law Rules Relating to the Shipmaster’s Duty to Render Assistance at Sea Not Found in Treaty Law
4.4 Conclusion
5 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Human Rights Law and Refugee Law
5.1 Introduction
5.2 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Human Rights Law
5.2.1The Interaction between the Law of the Sea and Human Rights Law
5.2.2The Jurisdictional Basis for the Application of Human Rights Law at Sea
5.2.2.1 De Jure Jurisdiction
5.2.2.2 De Facto Jurisdiction
5.2.2.3 De Facto and De Jure Jurisdiction in Rescue at Sea Operations
5.2.3State Duties to Protect Human Rights at Sea
5.2.3.1 Right to Life
5.2.3.2 Prohibition of Torture and Inhuman and Degrading Treatment or Punishment
5.3 State Measures Relating to the Duty of the Shipmaster to Render Assistance at Sea under Refugee Law
5.3.1The Extraterritorial Application of Non-refoulement
5.3.2Place of Safety and Respect for Non-refoulement
5.3.3Processing of Asylum Claims
5.4 Conclusion
6 State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea
6.1 Introduction
6.2 Doctrine of State Responsibility under International Law
6.3 Attribution of State Responsibility under International Law
6.3.1General Principles to Gauge Attribution
6.3.2Conduct of Private Persons Attributable to the State
6.3.3Due Diligence and the Attribution of State Responsibility
6.3.3.1 An Obligation of Conduct, Not of Result
6.3.3.2 Reasonable Measures
6.3.3.3 Relativeness
6.3.3.4 The Exercise of Due Diligence Obligation and Violations of International Obligations by Private Persons
6.4 State Responsibility and the Shipmaster in Rescue at Sea Operations
6.4.1Flag State Responsibility and the Shipmaster in Rescue at Sea Operations
6.4.1.1 Obligations under the Law of the Sea
6.4.1.2 Obligations under Human Rights Law and Refugee Law
6.4.1.3 Case Studies
6.4.2Coastal or
6.4.2.1 Obligations under the Law of the Sea
6.4.2.2 Obligations under Human Rights Law and Refugee Law
6.4.2.3 Case Studies
6.5 Conclusion
General Conclusions
Bibliography
Index
The book is of interest to shipmasters, shipowners, maritime industry regulators, practitioners, international lawyers, officials of States, non-governmental organizations, humanitarian organizations, academics, students, maritime institutes and libraries.