Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 101
Finally, the Smuggling Protocol provides that “[m]igrants shall not become
liable to criminal prosecution [. . .] for the fact of having been the
object of [smuggling]”. 257
6. Migrants Rescued at Sea
Every year thousands of migrants try to reach their country of destination
by sea, 258 many losing their lives in the process as they often,
or almost exclusively, travel on boats that are not fit for the amount of
people that they are transporting. The international law of the sea, as
well as international human rights law and refugee law, provide relevant
frameworks for the rescue, protection and status of such migrants.
Article 98 of the 1982 UN Convention on the Law of the Sea (UNCLOS)
codifies into law a long-observed principle of maritime tradition: the
obligation of shipmasters to render assistance to any person found at
sea in danger of being lost and to proceed to the rescue of persons in
distress, if informed of their need of assistance. 259 This obligation of
rescue was also provided for by the 1974 International Convention for
the Safety of Life at Sea (SOLAS). 260
While shipmasters have an obligation of immediate assistance, coastal
States have the obligation to “promote the establishment, operation
and maintenance of an adequate and effective search and rescue service
regarding safety on and over the sea and, where circumstances
so require, by way of mutual regional arrangements co-operate
with neighbouring States for this purpose”. 261 The 1979 International
Convention on Maritime Search and Rescue (SAR) obliges States to
“[. . .] ensure that assistance be provided to any person in distress at
sea [. . .] regardless of the nationality or status of such a person or the
circumstances in which the person is found”. 262 In order to implement
this obligation, States parties to the Convention have established in
common agreements search and rescue zones (SAR zones). 263
257 Article 5, ibid.
258 See UNHCR website, http://www.unhcr.org/pages/4a1d406060.html.
259 Article 98.1, United Nations Convention on the Law of the Sea, adopted on 10 December
1982 (UNCLOS): “1. Every State shall require the master of a ship flying its flag, in so far as
he can do so without serious danger to the ship, the crew or the passengers:(a) to render
assistance to any person found at sea in danger of being lost;(b) to proceed with all possible
speed to the rescue of persons in distress, if informed of their need of assistance, in so far
as such action may reasonably be expected of him;(c) after a collision, to render assistance
to the other ship, its crew and its passengers and, where possible, to inform the other ship
of the name of his own ship, its port of registry and the nearest port at which it will call.”.
260 See Chapter V, Regulation 33.1 of the International Convention for the Safety of Life at Sea,
1974 (SOLAS).
261 See, Article 98.2 UNCLOS. The same obligation is recalled in Chapter V, Regulation 7 SOLAS.
262 International Convention on Maritime Search and Rescue, 1979 (SAR), Chapter 2.1.10.
263 See, Chapter 2.1.4-8 SAR.