Maritime safety and Australia’s duty to rescue at sea
Dr Eric Wilson
by Dr Eric Wilson
Australia, like all other coastal states, is under an absolute obligation to undertake rescue at sea wherever and whenever necessary. It is not, however, immediately apparent that this is the case. In general, the answer one provides to a question of law is determined by the way one frames the problem at hand. If one were to examine international maritime safety and rescue at sea obligations through the prism of international law as it has been formally expressed in treaty, then obviously issues of territory and the ability to exclude other states from one’s own national waters move to the forefront of the analysis.
However, if one regards these activities through the lenses of unwritten international custom and state practice, along with the ‘best’ industrial practices of international and regional shipping industries, then the ‘answer’ appears quite different. My basic argument in relation to the recent turmoil over Australian rescue operations in Indonesian waters is that Australia does have an obligation to rescue at sea and is always in breach of international customary law if it deliberately fails to do in: (i) situations where it has clear knowledge of the stricken vessel’s distress and; (ii) where mounting a (safe) rescue operation is practically feasible, even if it must be conducted within Indonesian territory.
Given my own background working in admiralty and maritime law, my own bias, or prejudice, is to frame the issue in terms of the overriding paramountcy of international custom rather than on bilateral, or even multilateral, treaties or administrative and governance arrangements. It follows that the duty to rescue at sea, provided that it is physically possible and does not unduly threaten the safety of the rescuer, effectively ‘trumps’ any statutory provision. That is, unless the treaty in question is phrased in such a way as to not constitute a fundamental breach of the custom—which, in my opinion, is not really the case with established search and rescue operations, which are embodied in the International Convention on Maritime Search and Rescue (SAR).
Although treaties normally override customs that are not deemed to be universally binding (ius cogens), it is equally the case that no lawful treaty ever operates in basic contradiction with generally accepted custom. Any tribunal applying international law will always strive to reconcile, or harmonise, the two sources. Furthermore, the paramountcy of customary law regarding rescue and safety notwithstanding, there are a number of ancillary arguments that may be drawn from positive internal law that only enhance the binding status of custom.
Under the Third United Nations Convention of the Law of the Sea (UNCLOS III), all member states enjoy the right (and suffer the duty) of innocent passage through both the 200 nautical mile extended economic/fisheries zone (EEZ) and the 12 nautical mile territorial waters. These rights are also extended to military vessels, provided that they comply with custom and refrain from aggressive and/or illegal activities. In addition to UNCLOS III and SAR, there are a number of international instruments, both of a public (the International Maritime Organization Guidelines) and a private (the Hague and Visby Conventions) nature that clearly establish a positively expressed duty.
Finally, Australia’s own domestic law, the Navigation Act, which is the domestic adoption by parliament of an international instrument, commits it to undertaking rescue. Although a clear and fully enforceable bilateral instrument between Australia and Indonesia would of course be desirable, in my opinion it is not necessary in order to make out the universal and compulsory nature of the obligation.
Dr Eric Wilson is a Senior Lecturer in the Faculty of Law at Monash University.
A version of this article also appeared on The Conversation.