CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ REGULAR MIGRATION THROUGH SOUTH MEDITERRANEAN ROUTE … declared when “following the uncertainty phase, attempts to establish contact with a person, a vessel or other craft have failed and inquiries addressed to other appropriate sources have been unsuccessful; or when information has been received indicating that the operating efficiency of a vessel or other craft is impaired, but not to the extent that a distress situation is likely.” 54 The Boat Crew Seamanship Manual of the U.S. indicates that “an alert phase is assigned when an aircraft, ship, or other craft or persons on board are having difficulty and may need assistance, but are not in immediate danger. Apprehension is usually associated with the Alert Phase, but there is no known threat requiring immediate action.” 55 The manual outlines that the alert phase is also considered when “there is a continued lack of information about its position or condition. The key word is ‘apprehension.’” 56 The actions carried out in this phase are repeated attempts to communicate with the missing vessel, usually every four hours for a 24-hour period. 57 Therefore, at this phase the actions are more dedicated to the contacts with the vessel in question or to the search of a missing vessel. And the distress phase is signified when “there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance” 58 . Distress is declared when: 1) “positive information is received that a person, a vessel or other craft is in danger and in need of immediate assistance; or 2) … when, following the alert phase, further unsuccessful attempts to establish contact with a person, a vessel or other craft and more widespread unsuccessful inquiries point to the probability that a distress situation exists; or 3) … when information is received which indicates that the operating efficiency of a vessel or other craft has been impaired to the extent that a distress situation is likely.” 59 This can happen due to “a direct report of an emergency or the continued lack of knowledge about a vessel’s progress or position. The key word is ‘danger.’” 60 This phase signifies that immediate action is required and the rescue coordination centre starts the rescue procedures immediately. The search and rescue operations thus are carried out only when a distress phase is reached. In other cases of irregular migration, whether they would fall under the two other phases of uncertainty or alert, or not fall under any of those phases as the passengers of smuggling ship are not in danger of sinking should be considered an incident of law enforcement and border guarding. Therefore, the ships of NGOs and their shipmasters should be aware of such evaluations and may help only in cases of distress when the SAR regime becomes applicable. Of course, the situations of doubt should be solved in favour of the people in danger, but if the vessel is clearly not in distress, the SAR operations should not be carried out.

54 Ibid , Article 4.4.2. 55 Boat Crew Seamanship Manual , supra note 52. 56 Ibid. 57 Ibid. 58 SAR Convention, supra note 15, Annex, Article 1.3.13. 59 Ibid. , Article 4.4.3. 60 Boat Crew Seamanship Manual , supra note 52.

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