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The duty to rescue at sea, in peacetime and in war: A general overview

Published online by Cambridge University Press:  02 October 2017

Irini Papanicolopulu
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Abstract

The duty to rescue persons in distress at sea is a fundamental rule of international law. It has been incorporated in international treaties and forms the content of a norm of customary international law. It applies both during peacetime and during wartime, albeit with the necessary adjustments to take into account the different circumstances. States are also under the duty to provide search and rescue services. This article discusses the content and limitations of these provisions and assesses their potential to ensure the protection of human lives at sea. Furthermore, the article suggests that reference to the right to life, as protected in international human rights law, may be useful in further safeguarding human life and ensuring compliance by States with their duties.

Keywords

duty to rescueright to lifeshipwreckedSOLASSAR
Type
Maritime operations
Information
International Review of the Red Cross , Volume 98 , Issue 902: War and security at sea , August 2016 , pp. 491 - 514
Copyright
Copyright © icrc 2017 

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Footnotes

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Email: irini.papanicolopulu@unimib.it.

References

1 International Chamber of Commerce, “Reduction in the Number of Ship Losses”, available at: www.ics-shipping.org/shipping-facts/safety-and-regulation/reduction-in-the-number-of-ship-losses (all internet references were accessed in March 2017).

2 BBC News, “Costa Concordia: What Happened”, 10 February 2015, available at: www.bbc.co.uk/news/world-europe-16563562.

3 On 30 March 2017, fifty-four substandard vessels were detained by member States of the Paris Memorandum of Understanding on Port State Control; see Paris MoU, “Current Detentions”, available at: www.parismou.org/detentions-banning/current-detentions.

4 The year 2016 has been one of the deadliest, with 5,096 persons dead and missing in the Mediterranean Sea, a significant increase compared to the 3,771 persons dead and missing in 2015. See UNHCR, Mediterranean : Dead and Missing at Sea, January 2015 –31 December 2016, available at: https://data2.unhcr.org/en/documents/download/53632.

5 The facts of the case are summarized in Tineke Strik, Lives Lost in the Mediterranean Sea: Who Is Responsible?, report prepared for the Parliamentary Assembly of the Council of Europe (PACE), 29 March 2013, available at: https://assembly.coe.int/CommitteeDocs/2012/20120329_mig_RPT.EN.pdf. An articulate discussion of the ships that came into contact with the dinghy can be found in Charles Heller, Lorenzo Pezzani and Situ Studio, Report on the “Left-To-Die Boat”, Forensic Architecture, May 2014, available at www.forensic-architecture.org/wp-content/uploads/2014/05/FO-report.pdf. Following the PACE inquiry, a number of cases were brought in front of European judges concerning the responsibility of the flag States of the vessels involved in the case. It remains to be seen whether national judges will have jurisdiction and will decide the cases in the merits.

6 United Nations Convention on the Law of the Sea, 1833 UNTS 3, 10 December 1982 (entered into force 16 November 1994). UNCLOS is currently ratified by 167 States and the European Union.

7 International Convention for the Safety of Life at Sea, 1184 UNTS 278, 1 November 1974 (entered into force 25 May 1980), as amended. The SOLAS Convention currently has 163 States Parties, the combined merchant fleets of which constitute approximately 99.14% of the gross tonnage of the world's merchant fleet. The 2004 amendments concerning provisions on rescue were not accepted by Finland, Malta and Norway. According to the provisions of Article VIII(b)(vi)(2)(bb) of the SOLAS Convention, the amendments came into force on 1 July 2006, but they do not bind the States that have not accepted them. However, Norway has successively withdrawn its objection to the amendments and is now bound by them.

8 International Convention on Maritime Search and Rescue, 1405 UNTS 118, 27 April 1979 (entered into force 22 June 1985), as amended. The SAR Convention currently has 109 States Parties, the combined merchant fleets of which constitute approximately 80.75% of the gross tonnage of the world's merchant fleet. The 2004 amendments were not accepted by Malta and Norway. According to the provisions of Article III(2)(b) of the SAR Convention, the amendments came into force on 1 July 2006, but they do not bind the States that have not accepted them. However, Norway has successively withdrawn its objection to the amendments and is now bound by them.

9 International Convention on Salvage, 1953 UNTS 165, 28 April 1989 (entered into force 14 July 1996).

10 de Vattel, Emer, Le droit des gens ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains, Vol. 1, London, 1758, p. 170Google Scholar.

11 Convention on the High Seas, 450 UNTS 82, 29 April 1958 (entered into force 30 September 1962).

12 Second Report on the Regime of the High Seas by Mr. J. P. A. François, Special Rapporteur of the ILC.

13 International Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea, UKTS 4 (1913), Cd. 6677, 23 September 1910 (entered into force 1 March 2013).

14 International Convention for the Unification of Certain Rules of Law related to Collision between Vessels, [1930] ATS 14, 23 September 2010 (entered into force 1 March 1913).

15 ILC, Articles concerning the Law of the Sea with Commentaries, Yearbook of the International Law Commission, 1956, Vol. 2, p. 281Google Scholar.

16 Barnes, Richard, “The International Law of the Sea and Migration Control”, in Ryan, Bernard and Mitsilegas, Valsamis (eds), Extraterritorial Immigration Control: Legal Challenges, Nijhoff, Martinus, 2010, p. 134Google Scholar; Goodwin-Gill, Guy S., The Refugee in International Law, Oxford University Press, Oxford, 1996, p. 278Google Scholar; Oxman, Bernard H., “Human Rights and the United Nations Convention on the Law of the Sea”, Columbia Journal of Transnational Law, Vol. 36, Nos 1–2, 1998, p. 415Google Scholar; Nordquist, Myron, Nandan, Satya N. and Rosenne, Shabtai (eds), The United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. 3, Martinus Nijhoff, Leiden and Boston, MA, 1985Google Scholar.

17 Scovazzi, Tullio, “Human Rights and Immigration at Sea”, in Rubio-Marín, Ruth (ed.), Human Rights and Immigration, Oxford University Press, Oxford, 2014, p. 225Google Scholar.

18 Ibid., p. 226; B. H. Oxman, above note 16, p. 414; Noyes, John E., “The Territorial Sea and Contiguous Zone”, in Rothwell, Donald R., Elferink, Alex G. Oude, Scott, Karen N. and Stephens, Tim (eds), The Oxford Handbook of the Law of the Sea, Oxford University Press, Oxford, 2015, p. 104Google Scholar; M. Nordquist, S. N. Nandan and S. Rosenne (eds), above note 16, pp. 176–177.

19 SOLAS Convention, Ch. 5, Regulation 1.1.

20 Chapter 2.1.10 of the SAR Convention provides that “[p]arties shall ensure that assistance is provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.” See also SOLAS Convention, Regulation 33.1.

21 T. Scovazzi, above note 17, p. 225; R. Barnes, above note 16, p. 134.

22 Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea, IMO Doc. MSC/Circ.896/Rev.1, 12 June 2001.

23 1910 Salvage Convention, Art. 14; International Convention on Salvage, Art. 4.

24 UNCLOS, Art. 32.

25 Ibid., Art. 95, as applicable to the exclusive economic zone according to Art. 58(2).

26 Ibid., Art. 95.

27 An instance in which warships did not comply with their duty to save life at sea that received a lot of attention from media and from international institutions was the case of the so-called “left-to-die boat”. See note 5 above.

28 See the section on “The Duty to Rescue in War”, below.

29 A duty to ensure the safety of persons on board intercepted vessels is incorporated in, among others, Article 9(1)(a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 UNTS 507, 15 November 2000 (entered into force 28 January 2004); and Article 8bis(10)(a)(i) of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1678 UNTS 201, 10 March 1988 (entered into force 1 March 1992), as modified by the 2005 Protocol.

30 This principle is illustrated by the case involving the Kater I Rades, which resulted in the condemnation of the master of an Italian warship that, through dangerous manoeuvres, had caused the sinking of the vessel Kater I Rades. See the decision of the Italian Court of Cassation of 10 June 2014, n. 24527. For a commentary on the case, see Scovazzi, Tullio, “Il respingimento di un dramma umano collettivo e le sue conseguenze”, in Antonucci, Amedeo, Papanicolopulu, Irini and Scovazzi, Tullio (eds), L'immigrazione irregolare via mare nella giurisprudenza italiana e nell'esperienza europea, Giappichelli Editore, Torino, 2016Google Scholar.

31 UNCLOS, Art. 98(1).

32 Davies, Martin, “Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea”, Pacific Rim Law & Policy Journal, Vol. 12, No. 1, 2003Google Scholar.

33 Resolution 167(78) of the IMO Maritime Safety Committee's Guidelines on the Treatment of Persons Rescued at Sea, IMO Doc. MSC 78/26/Add.2, 20 May 2004 (IMO Rescue Guidelines), para. 5.1.2, provides that shipmasters should “do everything possible, within the capabilities and limitations of the ship, to treat the survivors humanely and to meet their immediate needs”.

34 Regulation 33.6 of the SOLAS Convention provides that “[m]asters of ships who have embarked persons in distress at sea shall treat them with humanity, within the capabilities and limitations of the ship”.

35 Article 98(2) of UNCLOS reflects Article 12 of the Convention on the High Seas. Interestingly, the draft articles produced by the ILC did not contain any reference to the duty of the coastal State to provide search and rescue services. The text of Article 12 of the Convention on the High Seas was based upon a Danish proposal during the First United Nations Conference on the Law of the Sea, UN Doc. A/CONF.13/C.2/L.36. See also Chapter 2.1.1 of the SAR Convention.

36 SAR Convention, Regulation 1.3.1.

37 Ibid., Ch. 1.3.2.

38 SOLAS Convention, Ch. V, Regulation 7.1.

39 See, for example, the case of the Cap Anamur incident, described in Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea, Cambridge University Press, Cambridge, pp. 214–216.

40 SAR Convention, Ch. 2.1.4.

41 Ibid., Ch. 2.1.3.

42 Ibid., Ch. 2.1.9.

43 Ibid., Ch. 1.3.2.

44 According to Resolution 167(78) of the IMO Rescue Guidelines, above note 33, a “place of safety” is “a location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination.”

45 R. Barnes, above note 16, p. 118.

46 Convention relating to the Status of Refugees, 189 UNTS 137, 28 July 1951 (entered into force 22 April 1954), Art. 33.

47 European Court of Human Rights (ECtHR), Chahal v. The United Kingdom, Application No. 22414/93, Judgment (Grand Chamber), 15 November 1996, para. 74; ECtHR, Hirsi Jamaa and Other v. Italy, Application No. 27765/09, Judgment (Grand Chamber), 23 February 2012, para. 114.

48 Among the many scholarly writings on the Tampa case, see Baillet, Cecilia, “The Tampa Case and Its Impact on Burden Sharing at Sea”, Human Rights Quarterly, Vol. 25, No. 3, 2003Google Scholar; Fornari, Matteo, “Soccorso di profughi in mare e diritto d'asilo: Questioni di diritto internazionale sollevate dalla vicenda della nave Tampa”, Comunità Internazionale, Vol. 57, 2002Google Scholar; Mathew, Penelope, “Australian Refugee Protection in the Wake of the Tampa”, American Journal of International Law, Vol. 96, No. 3, 2002CrossRefGoogle Scholar.

49 SAR Convention, Ch. 3.1.9; similar text was inserted in the revised Regulation 4.1.1 of the SOLAS Convention. See Mallia, Patricia, Migrant Smuggling by Sea, Martinus Nijhoff, Leiden and Boston, MA, 2010, pp. 100–101CrossRefGoogle Scholar.

50 As mentioned in above note 8, the SAR Convention has currently 109 States Parties, the combined merchant fleets of which constitute approximately 80.75% of the gross tonnage of the world's merchant fleet. This means that most vessels are bound by the SAR Convention. However, Malta has not accepted the 2004 amendments (ibid.).

51 See above notes 16 and 17 and accompanying text.

52 “Flags of convenience” is a term that is not included in UNCLOS or other maritime law treaties, but is widely used in practice. It refers to cases in which ships are registered in, and fly the flag of, States with which they do not present any link (ownership etc.).

53 UNCLOS, Art. 92. The limited exceptions to the exclusivity of the jurisdiction of the flag State provided in UNCLOS and other treaties do not seem applicable in the case of non-compliance with the duty to rescue people in distress.

54 M. Davies, above note 32, pp. 125–126.

55 Italy has introduced rules on the duty to rescue in its Code of Navigation. According to Article 489 of the Code, it is compulsory to provide assistance to vessels in distress at sea, provided that assistance is possible without seriously endangering the rescuing vessel, its crew or its passengers. Masters are required to render assistance in all cases in which it may be reasonably expected that the operation will succeed and unless they have knowledge that assistance is being rendered by others, in conditions more appropriate or similar to those in which they would normally operate.

56 It should be mentioned here that this may be a duty under international instruments, such as Article 10(2) of the International Convention on Salvage, which requests States to “adopt the measures necessary to enforce” the duty to render assistance.

57 This is true, for example, in the case of Italy. Article 1185 of the Code of Navigation provides that the masters of national or foreign vessels, floating devices or aeroplanes who fail to render assistance shall be punished with reclusion for up to two years, which may rise to six years in the case of injury to persons and up to eight years in the case of death.

58 With the possible exception of human rights courts, as will be discussed in the section of this article on “The Relationship between the Duty to Rescue and the Right to Life”.

59 UNCLOS, Part XV.

60 The German vessel Cap Anamur, after having saved thirty-seven people in the Mediterranean, had to moor for twenty-one days on the high seas close to the outer limit of Italian territorial waters, before being allowed to call at an Italian port. The crew of the Cap Anamur, after being arrested for facilitating the illegal entry of migrants into Italian territory, were eventually released; see Tribunale di Agrigento, Judgment of 7 October 2009. On the case and the decisions by Italian judges, see Cottone, Marco, “Alcune notazioni in materia di reati connessi all'immigrazione clandestina via mare”, in Antonucci, Amedeo, Papanicolopulu, Irini and Scovazzi, Tullio (eds), L'immigrazione irregolare via mare nella giurisprudenza italiana e nell'esperienza europea, Giappichelli Editore, Torino, 2016, p. 85Google Scholar.

61 Emphasis added. While it is generally considered that the 1910 Salvage Convention has been superseded by the 1989 International Convention on Salvage, it can be argued that the 1910 Convention has still remained in force in the part that concerns the duty to rescue life at sea during wartime, since the 1989 Convention does not contain any provisions to this effect and therefore seems not to have addressed the issue. See Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969 (entered into force 27 January 1980), Art. 59(1)(b).

62 See the comments of Special Rapporteur Francois that “les mots ‘même ennemie’ paraissant dans le texte de la Convention de Bruxelles, ont été supprimés eu égard au fait que les règles élaborées par la Commission du droit international à ce sujet se réfèrent exclusivement au temps de paix”: Second Report on the Regime of the High Seas, UN Doc. A/CN.4/42, 10 April 1951, p. 81.

63 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85, 12 August 1949 (entered into force 21 October 1950).

64 Kleffner, Jann K., “Protection of the Wounded, Sick and Shipwrecked”, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 3rd ed., Oxford University Press, Oxford, 2013, p. 325Google Scholar; Ronzitti, Natalino, Diritto internazionale dei conflitti armati, 5th ed., Giappichelli, Torino, 2014, p. 298Google Scholar. Recent State practice seems to support the customary character of this norm: see Haines, Steven, “Who is Shipwrecked?”, in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, p. 775Google Scholar.

65 British Military Court for The Trial of War Criminals, The Peleus Trial, 17–20 October 1945, available at: https://casebook.icrc.org/case-study/british-military-court-hamburg-peleus-trial.

66 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978).

67 Article 12 of GC II further clarifies that “the term ‘shipwreck’ means shipwreck from any cause and includes forced landings at sea by or from aircraft”. A different issue, and one which is not addressed in this article, is the status of these people once they have been rescued, and the guarantees that they may enjoy under humanitarian law, for example as civilians or as prisoners of war.

68 GC II, Arts 22, 24.

69 Ibid., Art. 27; Doswald-Beck, Louise (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press, Cambridge, 1995CrossRefGoogle Scholar, para. 47(b). The restriction is due to the special nature of these crafts: see von Heinegg, Wolff Heintschel, “The Law of Armed Conflict at Sea”, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, Oxford, 2013, p. 539Google Scholar.

70 This provision is based upon Article 16 of Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, 18 October 1907 (entered into force 26 January 1910).

71 W. Heintschel von Heinegg, above note 69, p. 481.

72 Commentary on GC II, p. 132, according to which “the words ‘after each engagement’ were better suited to the special conditions prevailing at sea”.

73 Faraone, Arturo, “Diritto umanitario e guerra navale”, in Papanicolopulu, Irini and Scovazzi, Tullio (eds), Quale diritto nei conflitti armati?, Giuffrè Editore, Milano, 2006, pp. 76–77Google Scholar.

74 When asked why he had risked being attacked to save the shipwrecked of the Kabalo, Commander Todaro explained that it was due to the “two thousand years of civilization” that he felt compelled him. Ibid., p. 77.

75 Trial of the Major War Criminals before the International Military Tribunal. Nuremberg 14 November 1945–1 October 1946, Vol. 13, Nuremberg, 1948, republished by Hein, William, Buffalo, New York, 1995, p. 276Google Scholar.

76 The Laconia Order was issued after German vessels attempting to rescue the survivors of the RMS Laconia were attacked by an American aircraft.

77 GC II, Art. 47.

78 Draft Articles on Responsibility of States for Internationally Wrongful Acts, annexed to UNGA Res. 56/83, 12 December 2001, Art. 50(1)(c).

79 International Military Tribunal, Judgment, 1 October 1946, in Trial of the Major War Criminals before the International Military Tribunal, Hein, William S., Buffalo, NY, and New York, 1995, p. 313Google Scholar.

80 Ibid.

81 The Tribunal referred to “an order of the British Admiralty announced on the 8th May, 1940, according to which all vessels should be sunk at sight in the Skagerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that nation entered the war”; ibid.

82 GC II, Art. 12.

83 In this sense see, the 1960 ICRC Commentary on GC II, p. 151 (“The provision is nevertheless optional. … [S]uch vessels are not bound to give the assistance requested”).

84 In this sense, see the 2017 Commentary on GC II, para. 1872: “This is not to say that the response to an appeal to their charity is necessarily left entirely to the commanders’ discretion. Several sources of international law, outside international humanitarian law, contain obligations to rescue persons in distress at sea.”

85 See T. Strik, above note 5.

86 UNSC Res. 2240 (2015), 9 October 2015, preambular para. 10.

87 International Court of Justice (ICJ), Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment, ICJ Reports 1949, p. 22.

88 Cour d'Appel de Paris, Arret, 24 June 2014, Dossier No. 2014/00670.

89 For a discussion of different points of view on the relationship between the right to life and the duty to rescue, see Efthymios D. Papastavridis, “Is There a Right to Be Rescued at Sea? A Skeptical View”, QIL – Questions in International Law, Zoom-in 4, 2014, available at: www.qil-qdi.org/wp-content/uploads/2014/06/03_LOS_Papastavridis_FINAL.pdf; Seline Trevisanut, “Is There a Right to Be Rescued at Sea? A Constructive View”, QIL – Questions in International Law, Zoom-in 4, 2014, available at: www.qil-qdi.org/wp-content/uploads/2014/06/02_LOS_Trevisanut_FINAL.pdf.

90 International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966 (entered into force 23 March 1976).

91 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221, 4 November 1950 (entered into force 3 September 1953).

92 ICCPR, Art. 2(1); ECHR, Art. 1.

93 See ECtHR, Al-Skeini and Others v. United Kingdom, Application No. 55721/07, Judgment (Grand Chamber), 7 July 2011, para. 136; see also, for application of these principles at sea, ECtHR, Hirsi Jamaa, above note 47, para. 81. The Human Rights Committee (HRC) seems to have in mind the same distinction when it differentiates between “power” and “effective control”; see HRC General Comment 31, 2004, para. 10.

94 ECtHR, Hirsi Jamaa, above note 47, para. 75.

95 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004; ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Order, 15 October 2008, para. 109.

96 Control over a territory, as applied by the ECtHR, includes military occupation (ECtHR, Cyprus v. Turkey, Application No. 25781/94, Judgment, 10 May 2001, para. 90; ECtHR, Loizidou v. Turkey (Preliminary Objections), Application No. 15318/89, Judgment (Grand Chamber), 23 March 1995, para. 62) and cases in which a State provides support to a separatist regime (ECtHR, Ilaşcu and Others v. Moldova and the Russian Federation, Application No. 48787/99, Judgment (Grand Chamber) 8 July 2004).

97 ECtHR, Al-Skeini, above note 93, para. 136.

98 ECtHR, Hirsi Jamaa, above note 47, para. 80.

99 See, among many other cases, ECtHR, Banković and Others v. Belgium and 16 Other Contracting States, Decision (Grand Chamber), 12 December 2001, para. 59; ECtHR, Markovic and Others v. Italy, Decision (Grand Chamber), 14 December 2006, para. 49; ECtHR, Assanidze v. Georgia, Decision (Grand Chamber), 8 April 2004, para. 137; ECtHR, Medvedyev and Others v. France, Application No. 3394/03, Judgment (Grand Chamber), 29 March 2010, para. 65.

100 European Court of Justice, Salemink v. Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, Case No. C-347/10, Judgment, 2012, para. 35.

101 ECtHR, Hirsi Jamaa, above note 47, para. 80; ECtHR, Medvedyev, above note 99, paras 66–67.

102 For a more detailed discussion, see Khaliq, Urfan, “Jurisdiction, Ships and Human Rights Treaties”, in Ringbom, Henrik (ed.), Jurisdiction over Ships, Martinus Nijhoff, Leiden and Boston, MA, 2015, p. 324Google Scholar; Papastavridis, Efthymios, “European Convention on Human Rights and the Law of the Sea: The Strasbourg Court in Unchartered Waters?”, in Fitzmaurice, Malgosia and Merkouris, Panos (eds), The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications, Martinus Nijhoff, Leiden, 2013, p. 117Google Scholar; Papanicolopulu, Irini, “A Missing Part of the Law of the Sea Convention: Addressing Issues of State Jurisdiction over Persons at Sea”, in Schofield, Clive, Lee, Seokwoo and Kwon, Moon-Sang (eds), The Limits of Maritime Jurisdiction, Martinus Nijhoff, The Hague, 2014, p. 387Google Scholar.

103 HRC, Baboeram et al. v Suriname, Communications Nos 146/1983 and 148-154/1983, Decision, 1985; Inter-American Court of Human Rights, Velásquez Rodríguez v. Honduras, Judgment, 29 July 1988.

104 Borelli, Silvia, “Positive Obligations of States and the Protection of Human Rights”, INTERIGHTS Bulletin, Vol. 15, No. 4, 2006Google Scholar.

105 ECtHR, Osman v. United Kingdom, Application No. 87/1997/871/1083, Judgment (Grand Chamber), 28 October 1998.

106 ECtHR, McCann and Others v. United Kingdom, Application No. 18984/91, Judgment, 27 September 1995.

107 Duties of States concerning behaviour of vessels flying their flag are duties of due diligence, as has been recently clarified in International Tribunal for the Law of the Sea, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, 2 April 2015, paras 127–129.

108 International tribunals with jurisdiction to examine alleged violations of human rights exist only at the regional level in the European, American and African continents. These are the ECtHR, established under the ECHR; the Inter-American Court of Human Rights, established under the American Convention on Human Rights, 1144 UNTS 144, 22 November 1969 (entered into force 18 July 1978); and the African Court on Human and Peoples’ Rights, established under the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples’ Rights, Doc. OAU/LEG/EXP/AFCHPR/PROT (III), 10 June 1998 (entered into force 25 January 2004). There is no similar tribunal for the Asian continent; furthermore, not all States belonging to America and Africa are parties to the treaties establishing the regional courts.

109 ECHR, Art. 35(1); African Charter on Human and People's Rights, 1520 UNTS 245, 27 June 1981 (entered into force 21 October 1986), Art. 56(5).

110 Modern technologies may be of assistance here, as they may provide evidence, for example, of the location of the endangered vessel and that of other vessels nearby. See C. Heller, L. Pezzani and S. Studio, above note 5.

111 The point is made in Papanicolopulu, Irini, “Human Rights and the Law of the Sea”, in Attard, David, Fitzmaurice, Malgosia and Martinez, Norman (eds), IMLI Manual on International Maritime Law, Vol. 1: The Law of the Sea, Oxford University Press, Oxford, 2014Google Scholar.