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Il dovere di soccorso in mare e il diritto di obbedire al diritto (internazionale) del comandante della nave privata


Shipmasters are commonly considered the addressees of an international legal duty to rescue at sea. This article describes the evolution of international law in this field, from the first maritime conventions of the 1910's to the IMO Safety Committee's resolutions of the 2010's. It then argues that behind the duty to rescue there is a hidden right of the shipmaster. This right has a moral pedigree and is functional to the full compliance of the duty itself. It can be enforced in the national legal order against any State (or private entity) that tries to obstruct the shipmaster's activities of assistance or to penalize her or him for the assistance given. National judges enforce this right in light of international law of human rights. The responsibility for an injury caused to the shipmaster for the violation of this right can be implemented in international law through the diplomatic protection by the State of nationality or through the protection by the flag State.