For some time now, the news and television reports have been reporting, on a daily basis, news regarding rescue and rescue operations at sea carried out by our ships or (more rarely) by those of other nations, against migrants who - as far as it seems - for various reasons (economic difficulties or wars in their countries of origin) they decide (we refer, of course, to those coming from the African continent) to cross the Mediterranean to get to Europe, in search of better luck.
The problem (or one of the problems) is that they almost always end up in the hands of criminal organizations which, far from having any interest in their lives, makes them embark on completely dilapidated boats, in exchange for large sums of money, with the result that, very often, they end up shipwrecked1.
Our country has always been used, like leader, on this side, especially in international transactions (they will be remembered Mare Nostrum, Triton: Eunavfor Med Sophia, to give some examples): well, leaving aside the assessments on the quality of the policy undertaken by the current national government in this regard (or that of the European Union as a whole), and on the advisability or otherwise of assigning the aid activities to the our military ships, what may be interesting, then, may be the analysis of the so-called lifeboat obligation of human life which, deriving from a maritime custom dating back over time, is the foundation of numerous international conventions.
Among them, the Convention for the Protection of Human Life at Sea (SOLAS- Safety of Life at Sea, London, 1974), the Convention on maritime search and rescue, (SAR- International Convention on Maritime Search and Rescue, Hamburg, 1979) and the UN Convention on the Law of the Sea (UNCLOS - United Nations Convention on the Law of the Sea, Montego Bay, 1982).
From that framework Therefore, it emerges that the aforementioned principle is placed so much in the hands of the individual commanders of ships, and in the hands of the States themselves (in addition to some limits, which will be mentioned later): in the first profile, in fact, in mind art. 98.1 of UNCLOS and of Chapter V, Reg. 33 (1) of SOLAS, the commander of a ship is obliged to provide assistance to anyone whose life is in the sea and is also required to proceed quickly assistance to people in danger at sea, of which I have had information.
Under the second profile, instead, the Art. 98.2 of UNCLOS provides for the obligation, for States Parties, to establish and maintain an adequate and effective search and rescue service, related to safety at sea and, where necessary, to develop, in this context, cooperation through regional agreements with the neighboring States, laying the foundations for the execution of multilateral agreements (such as, for example, the Palermo Protocols of 2000) and bilateral (such as, for example, the agreement between Italy and Libya of 2007 and the subsequent Treaty of friendship of the 2008).
The SAR Convention, for its part, imposes a precise obligation to rescue and assist people at sea and the duty to disembark shipwrecked persons in a safe place: from this point of view, precisely to face the problems related to obtaining the consent of one State at the landing of rescued persons, IMO member states (International Maritime Organization), in the 2004, have adopted amendments to the SOLAS and SAR Conventions, on the basis of which the States Parties must coordinate and cooperate in order to ensure that the commanders of the ships are relieved from the obligations of assistance of the persons rescued, with a minimum further deviation , compared to the planned route. To this end, the Guidelines on the treatment of people rescued at sea (Res. MSC.167-78 of the 2004) provide that the government responsible for the SAR region where the recovery took place, is required to provide a safe place or ensure that it is provided.
Furthermore, for Italy, the obligations deriving from the EU Regulation No. 656 / 2014 and, at national level, from the Navigation Code, from the National Plan for Search and Rescue at Sea are valid2 (DPR 662 / 1994, implementing the SAR Convention) and by the Interministerial Decree 14 / 07 / 2003, which allocates powers to the authorities responsible for controls at sea3.
Of course, there are also some for the obligation to rescue limits: they are foreseen by the art. 98 of UNCLOS (where the intervention endangers the ship, the crew or the passengers, or if, considering the circumstances of the case, it does not seem reasonable to expect such an initiative)4, from the art. 489 of the Navigation Code ("...as far as possible without serious risk to the rescue ship, its crew and its passengers …", or again, "unless he is aware that the assistance is brought by others in conditions more suitable or similar to those in which he himself could bring it ...")5 aforementioned and by the Reg. 33 / V of SOLAS (“if the ship that receives the danger signal is unable or, based on specific circumstances, considers their assistance to be unreasonable or unnecessary, the commander must record in the nautical journal the reasons justifying the lack of assistance, taking into consideration the organization recommendations and inform the competent search and rescue service accordingly ”).
Finally, as regards the sanctions envisaged, in the event of failure to assist ships or people in danger, with particular regard to the Italian legal system, it is necessary to recall the provisions of art. 1158 of the Navigation Code, referred to above, according to which the master of a ship, national or foreign, "who fails to provide assistance or attempt a rescue"In the cases in which it is obliged (in the light of the provisions of the same Code), it must be punished with imprisonment for up to two years (the penalty will instead be imprisonment from one to six years, if a personal injury, from three to eight if death resulted).
1 One of the recent episodes of sea rescue came to the fore with the media, dating back to 30 last June, when the Italian Coast Guard Eighteen ship rescued 108 migrants in the Sicilian Channel, in very difficult sea conditions.
2 For the purposes of Presidential Decree no. 662 of the 1994 means "maritime rescue", all activities aimed at searching and saving human life at sea; it is also established - that:
a) the general command of the port authorities' body is the national body that ensures the general coordination of maritime rescue services (IMRCC - italian maritime rescue coordination center);
b) the maritime directorates constitute the secondary centers of maritime rescue (mrsc - maritime rescue sub center); c) the port commands constitute the coastal guard units;
d) the naval units and the aircraft of the coast guard service of the corps of the harbor authorities, specially set up, constitute the maritime rescue units. As regards the rescue of endangered aircraft, the bodies indicated carry out the following tasks:
- the general command of the corps of port authorities, as national maritime rescue coordination center (IMRCC), ensures the general organization of maritime search and rescue services, coordinates search and rescue operations within the entire region of Italian interest on the sea and keeps in contact with the aid coordination centers of other states.
- the maritime directorates, as secondary centers of maritime rescue (mrsc), ensure the coordination of maritime search and rescue operations, according to the specific directives or the delegations of the national center (IMRCC) in its sector, identified by the maritime waters of national interest and international that extend in depth from the coastline of the respective jurisdictions, as specified in article 6 and reported in the graphic representation attached to this regulation of which it is an integral part.
- the port commands, such as coastal guard units (ucg), provide for the intervention of the maritime rescue units they employ located in their jurisdiction and maintain their operational control, unless the i.mrcc provides otherwise.
- the maritime rescue units intervene in rescue operations according to the planning of coastal guard units, drawn up and arranged by secondary maritime rescue centers (mrsc) for the use of means available in the areas of their own jurisdiction.
3 It was the first Mediterranean country to define its areas of SAR competence, accepted in the relevant IMO Valencia Conference of 1995 by the other Frontist States, with the exception of Malta, which, in addition to claiming unilaterally a vast SAR area , coinciding with his own Flight information Region (FIR) and partly superimposed on the Italian SAR area, it has not yet ratified the aforementioned amendments, on the grounds that its reduced territorial consistency would not allow it to maintain the commitments that would follow.
4 Article 98- Duty to render assistance: ""1. Everybody is a master of the ship, the crew, or the passengers: (a) to render assistance to anybody lost; (b) to proceed with all possible rescue, if so, if so, as action may be reasonably expected of him; (c) after collision, to render assistance to the other ship, its crew and passengers, where possible, to inform the other ship of the name of its own ship call.
2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service on safety and on the sea and, where appropriate, on the basis of mutual regional arrangements cooperate with neighboring States for this purpose ”.".
5 Article 489 - Assistance obligation"Assistance to ships or aircraft at sea or in inland waters, which are in danger of being lost, is mandatory, as far as possible without serious risk to the rescue ship, its crew and its passengers, as well as in the case provided for in the 485 article, when people are in danger on board the ship or aircraft.
The ship's captain, in the course of travel or ready to depart, who is aware of the danger of a ship or an aircraft, is required in the circumstances and within the limits predicted to rush to provide assistance, when he can reasonably foresee a useful result, unless he is aware that the assistance is brought by others in conditions more suitable or similar to those in which he could bring it".
(Photo: Marina Military)
