In regard to recent deaths of migrants in the English Channel, City’s Professor Jason Chuah says sanctions for failure to rescue are seldom enforced by flag states.
By Professor Jason Chuah, Professor of Commercial and Maritime Law, The City Law School
On 24 November 2021, 27 migrants drowned. The French coastguard issued a Mayday call. Journalists have reported that there were a number of vessels in the vicinity. Why was the rescue effort ineffectual?
Legally, a ship that had received the Mayday call would be under a duty to rescue. The International Convention for the Safety of Lives at Sea (SOLAS Convention) allows only for three exceptions – the ship is unable to assist or if it is unreasonable or unnecessary to do so, taking all circumstances into account. But if the master were to ignore the mayday call, they must record the reason in their log-book and inform the search and rescue coordinator accordingly. Masters are slow to respond to migrants in distress, having cited in the past fears of heavy bureaucracy when disembarking the victims, prosecutions by coastal states for immigration offences, loss of earnings, additional costs and danger to their own vessels. For various reasons, sanctions for failure to rescue are sadly seldom enforced by flag states.
In practical terms, a Mayday call may not always be properly received or heard. Smaller vessels, such as fishing boats, operating in a noisy work environment may not pick these Mayday calls easily. It also depends on how effective the Mayday call is transmitted.
An issue, which has been sometimes been raised, is whether ships outside French waters were allowed to enter to assist. The law could be clearer and more explicit. Although Art 18 of the Law of the Sea Convention refers to a ship whilst exercising its right of innocent passage being entitled to stop and rescue a ship in distress, it is not explicit about the right to enter the territorial sea of a coastal state simply to rescue. That said, a purposive interpretation should be preferred. Of course, in the 25 November incident, the French coastguard had clearly called on all vessels to respond, implicitly inviting vessels into the area in question.
It is also important for the rescue coordination centre properly to coordinate the effort - especially when the Mayday was issued by them. After all, Art 98(2) LOSC makes it plain that the coastal State must establish and maintain effective search and rescue services.