The ‘human rights at sea’ is a relatively new debate that gains significant attention of the maritime community. Human trafficking, illegal migration, abuse of fishermen, illegal trade of arms, nuclear weapons and drugs, illegal fishing and dumping of toxic waste on the high seas are some of the urgent issues that the shipping industry has to deal with.
In 2014, a new independent international maritime initiative “Human Rights at Sea” (HRAS) was introduced from the Maritime Practice of 9 Bedford Row International, London, as a human rights on-line information, and lobbying platform, aiming to support human rights integration into State, business and individual working practices, as well as promote the wider application of human rights throughout the maritime domain. The founding principle of HRAS is that “Human Rights apply at sea, as equally as they do on land”.
According to Dr. Sofia Galani of Bath Royal Literary and Scientific Institution, the ‘human rights at sea’ debate was driven in recent years from issues bringing at the forefront the human rights violations that occur at sea. These issues include the terrorist attacks of 11 September in the US, the resurgence of Somali piracy from 2000 and the refugee crisis in the recent years.
To begin with, the 9/11 attacks made states realise that the maritime infrastructure can be vulnerable to terrorist attacks. As a result, states adopted several initiatives, such as the Proliferation Security Initiative that allows navies to stop and search vessels for nuclear weapons, and the ISPS Code that allow port states to refuse entry to vessels suspected of terrorist activities. However, these operations resulted in cases of arrest, detention and even abandonment of seafarers.
In addition, in the light of rising Somali piracy, several naval operations have been taking place off Somalia. The arrest, transfer, detention and prosecution of pirates became a thorny issue and billions of pounds were injected in the region to ensure that pirates face a fair trial and are not detained in conditions that could amount to ill-treatment and torture. Further, the unprecedented number of people trying to cross the Mediterranean Sea and drown is a human right debate all by itself.
All these developments led to increasing enforcement operations, to enforce maritime order. This, however, can have a significant impact on human rights. According to Dr. Galani, there are both legal and practical challenges that prevent the recognition and better protection of human rights at sea.
Legal Challenges
A key legal issue is that the 1982 UN Convention on the Law of the Sea (UNCLOS), which is one of the most comprehensive international conventions, has no reference to human rights, which made the shipping community thinking about human rights at sea quite late. Also, the UNCLOS never intended to deal with human rights, but to promote peaceful use in the oceans.
What is more, conventionally there has been an understanding that states were only required to protect human rights within their borders. Over the years, and with the increasing activities of states outside their borders, it was accepted that human rights treaties apply extraterritorially when states exercise jurisdiction over a territory or persons. This usually happens when a state exercises effective control over a territory or persons, such in occupied territories or where people are arrested and detained abroad. Dr. Galani explained:
Now, if we bring the two legal regimes together – the law of the sea and human rights law – we will see that strictly speaking states have no jurisdiction beyond the 24nm miles (territorial sea and continuous zone). This means that states cannot enforce human rights law beyond this point.
However, several cases examined by human rights bodies worldwide, such as the Human Rights Committee and the European Court of Human Rights, have now established that state agents are bound by their human rights obligations when they arrest or detain people at sea and when they conduct military operations abroad.
Practical Challenges
Even today the importance of protecting human rights at sea is bigger, we are far away from effectively protecting them. The fact that the high seas fall beyond the jurisdiction of any state means that illegal activities thrive within the international waters, which makes the contribution of naval states extremely important. States invested significant amounts of money in conducting maritime operations that will counter these activities, but, unless states establish jurisdiction outside their territorial seas, they are not bound by the human rights obligations.
Secondly, even if jurisdiction is established, the lack of monitoring and reporting of human rights abuses mean that they go unpunished. If one kills a fisherman or a refugee in the middle of the ocean, no one will probably know about it and therefore there is no way to either prevent the violation or to hold someone accountable for it.
Human Rights at Sea recently partnered with the Business and Human Rights Resource Centre, with the launch of the new global platform for recording cases of maritime human rights abuses. This is the first such dedicated international maritime reporting platform to be linked with the global reporting hub and is a joint initiative to continue the ongoing advocacy efforts centred around highlighting human rights abuses at sea.
The other practical challenge is that sometimes even if we can hold states accountable for human rights violations, it might prove counter-productive to do so. Holding states accountable for human rights violations might discourage states from contributing their navies to this fight.
It is also important not to forget that the navies operate against adverse weather conditions and unfriendly waters and sometimes operations might go wrong, if they do not want that. For example, human rights concerns became a big obstacle to the fight against piracy. Many states out of fear that they will be held accountable for violating the human rights of pirates opted to ‘catch and release’ them without prosecuting them. That meant that once pirates were released, they went back to their illegal activities.
In 2016, Human Rights at Sea delivered the first in a series of new publications specifically focused on the implementation of the 2011 UN Guiding Principles on Business and Human Rights in the maritime environment. Explore more herebelow:
