Ports of Refuge for Private Rescue Vessels

In: German yearbook of international law: Jahrbuch für internationales Recht, Band 63, Heft 1, S. 87-119

Abstract

Access to ports for vessels flying the flag of another State under normal circumstances and in emergency situations is not a new issue for the international law of the sea. After European coastal States started closing their ports for vessels seeking to disembark rescued migrants, interest in the issue of access to ports in international law was greatly renewed. As a general rule, flag States have no entry rights under international law for vessels flying their flag for foreign ports. Ports qualify as internal waters, which come under full territorial sovereignty of the coastal State. In contrast to territorial waters, the international law of the sea does not even establish passage rights for navigation in internal waters, including ports. The international law on search and rescue at sea does not change this finding. Despite different modifications to improve the situation for persons rescued at sea, no coastal State is obliged to accept disembarkation because it is close to the incident or the next port of call is under its jurisdiction. If a vessel is in distress, customary international law recognises a right to enter a port of refuge. Despite such an acknowledgement, the content of this right is not entirely clear. Furthermore, a right to enter a port in emergency situations is not absolute. It leaves room for a balancing with coastal States' interests and it does not automatically include a right to disembark persons on board. For private rescue vessels that claim that they find themselves in distress after a rescue operation due to the situation aboard the ship, the current legal situation is marked by a lack of foreseeability and reliability that runs counter to humanitarian considerations.