While there are multiple obligations to rescue individuals lost at sea, mostly expressed in multilateral treaties, there are limited mechanisms for enforcing those laws. Enforcement needs to be accomplished through criminal law, as the civil lawsuit is a poor mechanism. The United States and Australia provide adequate examples of the implementation, or lack thereof, of international treaties into criminal law. However, even where the various treaties have been incorporated into the law of the nation by implementing legislation, the enforcement remains ineffective. This is partially because the onus of enforcement falls primarily on the flag state of the ship in question, and many such states are unable or unwilling to use their criminal law to prosecute those who violate the obligation to assist at sea. Although there are ways for other countries to enforce the law of the sea upon a ship flying a foreign flag, such mechanisms are limited in application, unlikely to be utilized, and can be less effective than those of the flag state. Weighing against enforcement are strong commercial disincentives to rescue those lost at sea. In addition to the out-of-pocket costs incurred by ship's owners, the operator can also lose significant profit for the hours or days the ship is in port or indisposed as a result of the rescue. It is likely that the latter costs will not be covered by insurance. As a consequence of these competing interests, it is probable that even if ports of call were to allow immediate offloading of refugees, it would fail to solve the problem, as the commercial disincentives still outweigh nonexistent criminal sanctions.
Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea,
12 Pac. Rim L & Pol'y J.
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