As has previously been reported to the Marine and Maritime Law Committees, since late 2022, the ICS Secretariat has been copied on letters from UNHCR addressed to the owners of ships that have been involved in search and rescue incidents in the central Mediterranean Sea. Some of the letters are directed as letters of commendation or appreciation for a rescue conducted, others are directed to express concern or request clarification where UNHCR believes a ship has either declined to conduct a rescue, or rescued persons have been disembarked in Libya. Many of the letters stress that UNHCR does not consider Libya to be a “place of safety” according to international law and urge shipowners and ship masters not to disembark rescued persons there. UNHCR is critical of disembarkation of persons in Libya, even where this has been done at the instruction of the coordinating State MRCC. The most recent letters misquote the guidance provided in the IMO Resolution MSC.167(78), implying that the master and company have a legal obligation to determine a safe place for disembarkation.

ICS has previously contacted UNHCR, strongly objecting to UNHCR contacting ships directly in this way, urging that it refrain from this, as ships have no choice but to comply with their obligations under UNCLOS and the SAR Convention, especially with respect to instructions from an MRCC. ICS has further pointed out that it is only States that can determine a “place of safety” and that alleging that ships and masters have breached international requirements, and suggesting that they should disregard the instructions of MRCCs to disembark in Libya, risks criminalising seafarers and deterring ships from rescuing people at sea.UNHCR’s criticism of shipowners for complying with the instructions of MRCCs and disembarking in Libya was further highlighted by ICS as inappropriate, creating confusion for shipowners and potentially discouraging ships from responding in future cases. UNHCR responded to the letter from ICS reiterating its position and continued with sending further letters. While letters received subsequently have been a little more diplomatic in tone, the secretariat believes that this correspondence remains wholly inappropriate, and risks causing confusion for companies, masters and seafarers during the extremely stressful act of rescuing distressed people at sea.

ICS is aware that a number of companies have responded to the UNHCR correspondence. In the light of this, and having analysed the legal position carefully, the Secretariat believes that it is important to advise owners that UNHCR has no jurisdiction over, or responsibility for, ships, nor for any necessary search and rescue efforts. Shipowners are not obliged to respond to any letters that they receive from UNHCR, indeed, responding could embolden UNHCR to continue with its campaign and in some circumstances shipowners’ response may carry the risk of self-incrimination or incurring other liabilities. It is strongly recommended therefore that members make shipowners aware of this and that it is best that shipowners do not respond at all to any UNHCR letters.

Furthermore, ICS has been made aware that the Germany-based NGO, “Watch the Med”, which describes itself as “an online mapping platform to monitor the deaths and violations of migrants’ rights at the maritime borders of the EU”, has hailed ships in the Mediterranean to direct them to small vessels which they claim are in distress. In such cases, it is strongly recommended that ships do not respond directly to contacts from this or other similar NGOs, but instead report them to the responsible MRCC and await MRCC’s instruction to ensure that rescue procedures are properly followed and adequate support for the rescue is provided.

The secretariat is actively exploring further action that ICS might take to bring the letter campaign to an end. The most recently received letters have also been discussed with the secretariat of the International Group of P&I Clubs, and the two organisations are discussing whether any joint action might be taken. Members will be kept informed of any further developments.