Wilton Park published its report on “Human Rights Law at Sea”, discussing the key themes of discussion, problems identified, and recommendations for possible ways forward concerning human rights protections at sea.
he Wilton Park “Human Rights Law at Sea” Conference, organised in partnership with Human Rights at Sea Advisory Board member Sir Malcolm Evans KCMG, OBE, FLSW, was initiated as a direct response to the 2021 House of Lords United Nations Convention on the Law of the Sea inquiry (UNCLOS), and whether it was fit for purpose in the 21st Century.
Wilton Park enabled selected experts and practitioners to come together with the aim of exploring and articulating the role of human rights law at sea and to deliberate on how practical barriers to their effective application might best be addressed.
We will closely rely on forward-leaning, globally minded states to lead the charge when it comes to protecting human rights at sea. The state level response we had in March 2021 at the launching of the Geneva Declaration of Human Rights at Sea in Switzerland has shown us that potentially there are a number of champion States who are willing to take initial action and take on the Declaration
Head of Operations, Martyn Illingworth, said.
Industry perspectives and challenges
While industries operating at sea, for example in shipping or fishing, might not be indifferent to the protection of human rights at sea, costs are a significant barrier to be factored in. Economic incentives and responses tailored to the needs and priorities of industry are needed. Industry and market-driven solutions can provide unique approaches to protecting human rights at sea. Business and human rights approaches which emphasise human rights due diligence in supply chains, including with service suppliers such as transportation providers, can contribute to creating incentives for ensuring respect for human rights at sea.
What is a human rights violation at sea?
Some situations can be clearly identified as amounting to ‘human rights violations’ at sea as they involve direct violations of individuals’ human rights by State actors. Examples might include cases of illegal detention or torture at sea. Where these occur, challenges remain for the enforcement of such human rights at sea.
However, many other incidents and behaviours at sea – albeit concerning or wrongful – do not necessarily amount to human rights violations, yet they are frequently labelled as such. This could be the case, for example, in relation to seafarers’ lack of shore leave which in and of itself is not a human rights violation but over time might evolve into a situation of forced labour. This lack of nuance and clarity often results in a dilution of the meaning of ‘human rights at sea’. As this example highlights, issues may develop into ‘human rights violations’, but the nature of the maritime domain makes it complex to determine precisely when this might occur.
The application of human rights at sea
The approaches to jurisdiction under human rights law and the law of the sea do not align. Where human rights law has traditionally favoured a territory-based approach to jurisdiction, LOSC has enshrined functional jurisdiction at sea with its associated maritime zones where the concept of sovereignty does not apply in the same way. Even where human rights law recognises extra-territorial jurisdiction on the basis of effective control over an area or conduct or persons, this does not easily translate to the sea. This is because ‘effective control’ at sea may look very different than on land.
Monitoring and enforcement
There is a lack of knowledge of the extent to which human rights violations occur at sea and more comprehensive and reliable data is needed. This should serve to both better understand the nature of human rights violations that occur at sea, as well as raising awareness, thereby informing risk-based approaches and generating action and political will. Existing and emerging technological solutions may provide new applications for monitoring and surveillance of human rights violations that occur at sea.
Industry perspectives and challenges
Alternative options to protecting human rights at sea should be considered, including economic and market-driven solutions. Similar approaches exist, for example, in relation to product certifications which indicate that a product has been produced in line with social criteria. Notably, these certificates do not yet extend to the transportation of the same goods. A growing acceptance of business and human rights and mandatory human rights due diligence might create alternative solutions for the protection of human rights.
There are active challenges to the liberal international order and human rights are seen as a significant feature of this. At the same time, the concept of ‘human rights’ is also being challenged in traditionally liberal and developed States. For example, fear of migration makes it increasingly challenging to discuss human rights in the context of migrants at sea. The facts of economic life and competition are also putting pressure on the protection of supply chain workers’ rights, including on fishing and transport vessels.
In light of the issues described as well as possible approaches to move forward, the following key recommendations were made:
- There is a need to articulate what a human rights violation at sea entails and to identify all relevant positive obligations that allow for its enjoyment at sea.
- The conceptual basis for how human rights at sea needs to be reconsidered.
- There needs to be better monitoring and data gathering of human rights at sea.
- The ‘genuine link’ needs to be clarified in a manner that enables effective protection of human rights by law of the sea tribunals.
- The right of visit could be expanded to include a reasonable belief of human rights violations.
- There is a need to ensure that human rights are properly applied in the at-sea context during enforcement operations.
- Industry should support human rights at sea by engaging in full human rights due diligence of their own business activities.
- Political leaders and champion States are needed to bring human rights at sea forward.