Contrary to what has been widely reported in sections of the local press, new amendments to the International Maritime Organisation’s Safety Of Life At Sea (SOLAS) and Search and Rescue (SAR) conventions, which came into force yesterday, may actually absolve Malta of many of its previous obligations to bring to shore any persons rescued at sea within its SAR region.

Speaking to The Malta Independent on Sunday yesterday, AFM’s Captain Andrew Mallia cautioned against jumping to conclusions about the new regulations. “There has been a lot of shooting from the hip in the media,” he said; but with typical military reserve, Capt. Mallia avoided committing himself to any position on the issue, advising us instead to “read the guidelines carefully” before passing any comment.

Following his advice, this newspaper obtained copies of the guidelines to the interpretation of the new amendments directly from the IMO’s offices in London.

At first glance, the amendments appear to indicate that Malta would indeed be responsible for all immigrants rescued in its own SAR region, which stretches from Tunisian territorial waters almost all the way to Crete. This interpretation arises from the first paragraph of the new regulations, which states that responsibility for all persons rescued at sea “falls on the contracting Government/Party responsible for the SAR region in which the survivors were recovered.”

This is perhaps unsurprising, as these amendments were drawn up specifically to avoid any repetition of the highly contentious Tampa incident in 2001, when the government of Australia attempted to divest itself of responsibility for the fate of over 400 Afghan asylum seekers rescued at sea by Norwegian-registered vessel MV Tampa, precipitating a diplomatic incident between Australia, Norway and Indonesia.

However, a closer reading of the guidelines reveals that Malta’s international obligations are not specifically to accommodate survivors, but instead to “provide a place of safety, or to ensure that a place of safety is provided”. (SOLAS 1-1).

Subsection 6.12 of the guidelines defines “a place of safety” as “a location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination.”

Section 6.14 further states that “a place of safety may be on land, or it may be aboard a rescue unit or other suitable vessel or facility at sea that can serve as a place of safety until the survivors are disembarked to their next destination”.

Sources in the legal profession told this newspaper that these definitions may be interpreted to mean that Malta could continue to meet its international obligations without actually bringing survivors to shore. Of particular interest is the repeated use of the phrase “next (or final) destination.” This clause may be taken to mean that Maltese rescue services may also be fulfilling their international obligations if, having provided the survivors with a temporary place of safety, they assist the stricken vessel in reaching its “next destination” – which, in the case of irregular immigration, is rarely, if ever, Malta.

There is more: while the previous regulations place the onus almost entirely on the State responsible for the SAR region, the new amendments also allocate responsibilities to other co-operating countries. Subsection 6.16 observes that “governments should co-operate with each other with regard to providing suitable places of safety for survivors after considering relevant factors and risks.”

One could argue that among these “relevant factors” is the fact that, due to its size and limited resources, and due also to the present situation in which the closed detention centres have reached maximum capacity, Malta is simply no longer suitable as “a place of safety” for rescued immigrants.

A further consideration is that “(shipmasters should) seek to ensure that survivors are not disembarked to a place where their safety is further jeopardised.” (5.6). In the light of recent events (including last Tuesday’s mass break-out, in which almost half the total police force manpower, assisted by numerous members of the AFM, was required to bring a very tense situation under control) it could be argued that the survivors’ safety may be further jeopardised if disembarked to Malta under the prevailing circumstances.

At the end of the day, however, these are all considerations for the legal profession to argue.