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35. In addition to the international human rights framework, there is an applicable legal
framework for rescue at sea in international maritime law, which stipulates the requirements for
assistance afforded to those travelling by sea. Legal developments which have taken place with
regard to the international law of the sea include the entering into force of the United Nations
Convention on the Law of the Sea (UNCLOS), and recent amendments to the Safety of Life at
Sea (SOLAS) and the Search and Rescue (SAR) Conventions, as well as their implementing
guidelines issued by the International Maritime Organization (IMO). These conventions
explicitly contain the obligation to come to the assistance of persons in distress at sea, and this
obligation is unaffected by the status of the persons in question, their mode of travel or the
numbers involved.25
36. There are also norms which govern the obligation of a State to stop and search vessels
suspected of involvement in smuggling or trafficking by sea, but these interception measures
must be in line with international human rights principles and they oblige States to ensure the
protection - “humanitarian handling” or “humane treatment” - of all persons on board, regardless
of their status.26 Indeed, a stated purpose of the Protocol against the Smuggling of Migrants by
Land, Sea and Air is to protect the rights of smuggled migrants and it limits the criminal liability
of migrants found to be the object of interception efforts.27
25
See for example, paragraph 2.1.10 of chapter 2 of the annex to SAR, 1979, which states,
“Parties shall ensure that assistance be 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.” Regulation 15 of chapter V of the annex to SOLAS obliges each State to “ensure that
any necessary arrangements are made for coast watching and for the rescue of persons in distress
at sea around its coasts”. Article 98 (1) of UNCLOS, 1982, states that every State shall require
the master of a ship flying its flag, insofar as he can do so without serious danger to the ship, the
crew or the passengers, inter alia, to render assistance to any person found at sea and in danger of
becoming lost. Some of these provisions have become so universally recognized as to be
considered customary international law.
26
See article 12 of the IMO circular “Interim measures for combating unsafe practices
associated with the trafficking or transport of migrants by sea”, adopted by the Maritime Safety
Committee in 1998, which authorizes a State which has reasonable grounds to suspect that a ship
“is engaged in unsafe practices associated with the trafficking or transport of migrants” to
inspect the ship. Article 17 of the same document calls for the State to “ensure the safety and the
humanitarian handling of the persons on board”. Article 9 of the Protocol against the Smuggling
of Migrants by Land, Sea and Air, supplementing the United Nations Convention against
Transnational Crime similarly calls on States to “ensure the safety and humane treatment of the
persons on board” and article 16 ensures further safeguards for protection.
27
See the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the
United Nations Convention against Transnational Crime, articles 2 and 5, respectively.
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