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Matz-Lück, N (2020). Ports of Refuge for Private Rescue Vessels. German Yearbook of International Law, 63(1), 87-119. https://doi.org/10.3790/gyil.63.1.87
Matz-Lück, Nele (2020). "Ports of Refuge for Private Rescue Vessels" German Yearbook of International Law, vol. 63no. 1, 2020 pp. 87-119. https://doi.org/10.3790/gyil.63.1.87
Matz-Lück, N (2020). Ports of Refuge for Private Rescue Vessels. German Yearbook of International Law, Vol. 63 (Issue 1), pp 87-119. https://doi.org/10.3790/gyil.63.1.87

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Ports of Refuge for Private Rescue Vessels

Matz-Lück, Nele

German Yearbook of International Law, Vol. 63 (2020), Iss. 1 : pp. 87–119

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Nele Matz-Lück, Professor of Public Law including Public International Law, particularly the Law of the Sea and Co-Director of the Walther Schücking Institute for International Law at Kiel University.

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.

Table of Contents

Section Title Page Action Price
Nele Matz-Lück\nPorts of Refuge for Private Rescue Vessels 87
I. Introduction 87
II. Rescue at Sea: Legal Background and Relevant Distinctions 91
A. Changing Circumstances 91
B. The Duty to Render Assistance 93
C. The Duty to Bring Rescued Persons to a Place of Safety 95
1. The Definition of ‘Rescue’ 95
2. A Place of Safety and Human Rights 87
D. The Disembarkation of Persons Rescued at Sea 87
III. Access to Ports Under Normal Circumstances 87
A. Jurisdiction of Coastal States Concerning Immigration via the Sea 87
B. Territorial Sovereignty Over Ports as Internal Waters 87
C. Equal Access to Ports 87
IV. Access to Ports in Emergency Situations 88
A. Customary International Law on Entry Into Ports of Refuge 88
B. Content and Limitations 88
1. Distress as a Precondition for Access to Ports of Refuge 88
2. Coastal State Interests in Limiting Access Rights 88
3. Consequences of Entry 88
4. Denial of Entry 88
V. Challenges in the Context of Rescue Missions 88
A. The Need for Re-Assessment 88
B. Conclusions: ‘Gaps’ to be Filled 89