Search and rescue at sea: straddling the duty to render assistance and the interests of the coastal states
- Autores: Julio Emilio Marco Franco
- Directores de la Tesis: Juan Santos Vara (dir. tes.)
- Lectura: En la Universidad de Salamanca ( España ) en 2023
- Idioma: español
- Tribunal Calificador de la Tesis: Luis Norberto González Alonso (presid.), Evangelina Tsourdi (secret.)
- Programa de doctorado: Programa de Doctorado en Estado de Derecho y Gobernanza Global por la Universidad de Salamanca
- Materias:
- Enlaces
- Resumen
As a result of an ancient maritime custom and its subsequent sanction in several international conventions, the rescue of persons in distress at sea has an established legal procedure. The migratory phenomenon and the smuggling of migrants distort this regulatory framework, which was not designed for such an avalanche. The situation is aggravated especially in the receiving States and by the fact that even within the European Union (EU) there is no homogeneous policy, demonstrating in many cases more an intention of territorial protection ¿that is, a policy of barriers, with deterritorialisation of the problem through agreements and disembarkation and confinement centres in third countries, extended jurisdictions (creeping jurisdiction), and disembarkation difficulties¿ than of compliance with the conventions on human rights and the principles of protection of fundamental rights that inspired the construction of Europe..
What is striking about the approach is that irregular migration that has gained access through irregular border crossings is in a minority. In both the EU and Spain, less than 10% of irregular migrants irregularly cross the maritime border. Most of the immigration that later becomes irregular enters through legal entry. These data do not seem to be of interest to the media or known to public opinion. In order to ascertain that public opinion, fieldwork was carried out in three regions of Spain (Galicia, Valencia and the Balearic Islands), territories that represent different profiles of economic development. The results confirm that the population studied is unaware of the relative magnitude of migratory flows, which leads to a negative bias towards immigrants arriving by sea, for fear that they will consume resources that could be used by national citizens. There seems to be a tendency for governments and their media to remain silent on the actual consumption of resources by those who are in an irregular situation but have entered legally. The deployment of border controls and the lack of enforcement of legal regulations and respect for human rights, focusing only on the small percentage of irregular migrants who enter by sea, is totally paradoxical.
Law and good governance of rescues of migrants in distress at sea require compliance with conventions and the protection of fundamental rights. These fundamental rights are an integral part of the founding principles of the EU. Barrier actions cannot be justified and the international agreements must be respected. A general education and outreach campaign is needed to bring politicians and citizens together, but within the legal framework and the fundamental principles of European integration. The EU is not just a set of economic interests orbiting around the euro. It is a project that, according to the Treaty on European Union, revolves around three fundamental principles: democratic equality, representative democracy and participatory democracy. Attempting to reduce the flow of irregular migrants by sea by delaying the disembarkation of ships that are legally obliged to carry out rescue operations is a reprehensible action, with a minimal effect on the total number of migrant arrivals and one that seriously harms shipowners, violates human rights conventions, and puts the lives of those rescued at risk.
In addition to the human drama, in the midst of this conflict are the merchant ships and their masters. They have a moral and legal obligation to rescue people in distress at sea, but they also have the right to proceed as quickly as possible, without undue delay. A rescue vessel is not a place of safety. The shipmaster uses the means at his/her disposal, but a rescue at sea is always expensive. In addition, rescued persons need accommodation, provisions and, in many cases, medical care. Monitoring them for weapons, drugs, or control of wandering in restricted areas such as engine rooms or the ship's operational centres, may not be an easy task. The rescuing merchant ship inevitably delays its voyage, with commercial repercussions. Even with insurance cover, salvage often has negative financial consequences for the shipowner.
