Access to ports for ships in distress : what of disembarkation?

Abstract

The question of access of vessels into ports has long been a subject of academic interest; however, a contemporary problem relates to the scenario giving rise to a right of entry to port for vessels in distress. Aside from the interpretation given to ``distress'' in this context, one is also faced with the fact that this exceptional right of entry was conceived of in relation to merchant vessels—at the time of the rule's infancy, the world had not yet been confronted with boatloads of persons fleeing to another State in search of a better life. When considering the right of entry of ships in distress into port, the human element deserves attention: human life trumps all other considerations. States increasingly present exceptions to this right, however, on the grounds of security and other related interests; ships laden with immigrants are consequently not always granted entry. The result is that considerations of the humanity, though crucial, are lacking from most international regulation. The only treaty dealing with such factors is the Convention on International Search and Rescue (SAR Convention)—and this treaty, as shall be discussed, is neither comprehensive nor effective. This paper will review the accepted position regarding entry to ports and the notion of ships in distress. The paper will then go on to evaluate the current legal framework and highlight the deficiencies causing States to take certain positions that, albeit legal, may well endanger the lives of persons at sea.