Human Rights At Sea
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
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HUMAN RIGHTS AT SEA
Aadithya Aravindh, Jindal Global Law School Mihika Ajit Pandit, Jindal Global Law School, University of Arizona Introduction Seventy-one (71) percentage of Earth is covered with water. While many countries enjoy sovereign rights over the water bodies surrounding their immediate land territories and while several treaties have been established to deal with the Property Acquisition and Delimitation rights of Sovereign Countries within these various waterbodies, the High Seas and vast portions of the ocean remain uncharted and more importantly non-delimited. This presents the theory of the ‘common heritage of all mankind’ which essentially promotes the aspect that such portions of the ocean are common property to all of mankind and therefore, a single sovereign entity cannot claim maritime rights over the same. Essentially, this places such areas from outside the ambit of any country’s jurisdiction and therefore, outside the ambit of enforceability of Human Rights Laws. The present paper therefore aims to explore the avenue of Human Rights Law within the ambit of High Seas and Ocean Bodies and the implementation of these laws by various sovereign states. The Statutory Regulations The United Nations Convention on the Law of the Sea With regards to Human Rights at Sea, there are no specified conventions which determine the same and therefore, there is no definitive protocol that a Vessel must follow in compliance of Human Rights. However, though human rights have not been established in a distinctive manner through the sovereign nations, there have been statutory regulations which lay down procedure for determination of jurisdiction which is then countered with the applicability of the specific states’ adjudicating authorities to rule upon the violations meted out on a vessel. Most importantly, the United Nations Convention on the Law of the Sea (UNCLOS) is the most noteworthy statute in this regard as it provides for the delimitation of a state’s boundary with regards to the water surrounding the same and furthermore, with regards to the authority a state possesses on any vessel/ship that is located near or within this jurisdiction. The UNCLOS provides that “the sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea”1. Furthermore, it describes this area to be twelve nautical miles away from the baseline of the coastal nation2 along with the twohundred nautical-mile demarcation of the Exclusive Economic Zone3. Therefore, any vessel/ship that is situated within the abovementioned demarcation is considered to be within the territorial jurisdiction of the specific state in question. However, the Coastal State is limited in the exercise of this jurisdiction and is required by the UNCLOS to treat such vessels as bodies of the Flag State of the concerned vessel, having to follow specific procedures such as providing for a dialogue between the crew and their flag state, notifying the concerned flag state’s embassy and holding off on boarding the vessel until such a time that a representative of the Flag State arrives4. These are further conductive of fundamental rights of these persons to be bound by no other jurisdiction but that of their flag state. The UNCLOS, in terms of explicit safeguards of Human Rights Law, provides that “Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.”5 This clause, abolishing slavery, is the only explicit clause which delimits and addresses human rights law at sea. The Maritime Labour Convention and the International Convention for Safety of Life at Sea The second most important statutory regulation in this regard is the Maritime Labour Convention provided by the International Labour Organization. The Convention is fairly detailed in its governance of Human Rights Law practices on Vessels and Ships. It provides for basic fundamental rights such as – (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in
1 United Nations Convention on the Law of the Seas, art. 2(1).
2 United Nations Convention on the Law of the Seas, art. 3.
3 United Nations Convention on the Law of the Seas, art. 57.
4 United Nations Convention on the Law of the Seas, art. 27.
5 United Nations Convention on the Law of the Seas, art. 99.
respect of employment and occupation.6 Furthermore, the convention also provides for every state’s obligation to respect and establish a safe work environment, decent working conditions and the right to protection in terms of healthcare and social protection7. This is further expanded by the International Convention for the Safety of Life at Sea. This convention governs the safety standards that are regulatory norms for all shipbuilders and operators to ensure that the same are met before a ship is deemed to be voyage-ready. These norms include, but are not limited to, prescribing the minimum width of the berths for crew members, emergency evacuation procedures, prescribed limits for the number of life rafts and the prescribed conditions of work and sanitation within the ship. This convention hereby elaborates upon the equation of right to dignified life8 that is guaranteed by the Constitution of India. However, there is a gap in these statutory regulations as well inasmuch that they are not focussed upon the humanitarian aspect of Seafaring but are more focussed towards the protection of their resources. Therefore, the protections granted by these regulations are more territorial and resource-based than they are towards securing the fundamental rights of these individuals. Situations of Criminality at Sea The Maersk Incident There are more than several cases accounting for rapes and mass murders committed by Companies, Sailors, and individual seamen belonging to sovereign navies. The US Marine Industry has been, since 2020, very vocal of their accounts of such atrocities. Women in particular are heavily threatened and subjected to sexual assault and rape on their seafaring voyages. This is prudent from several survivor accounts recounting the same. The most famous of these is the recent Maersk controversy wherein two students of the United States Merchant Marine Academy published their accounts of being raped on the Maersk Liner M/V Alliance Fairfax.
6 Maritime Labor Convention, art. 3.
7 Maritime Labor Convention, art. 4.
8 Constitution of India, art. 21.
These individuals were named Midshipman-X and Midshipman-Y in the interest of keeping their identities concealed. However, in the recent case registered against the shipping line, Midshipman-X’s name was revealed to be Hope Hicks. Ms. Hicks recounts the account of how, she as a 19-year-old virgin had been excited to finally get out of the academy and go for a sea voyage in pursuit of her sea year. Ms. Hicks recounts that the men forcibly got her drunk after which they took her back to her room wherein, she was raped by a 60-year-old 1st Mate of the ship9. Eight-and-a-half months later, a batchmate of Ms. Hicks also joined in Ms. Hicks’ lawsuit on account of her horrific accounts of how she was also subjected to unwanted touching aboard the same liner10. Since then, several female mariners have published their own individual accounts of sexual harassment faced at sea. It is however noteworthy that there does not exist any criminal record in any country’s database of statistics wherein such actions have been condemned or resulted in criminal charges against the mariners. Indian Ocean Killings Reporting of offshore crimes is abysmal because of which prosecution of those crimes becomes a challenge. Killings at the sea, either ‘pirate ship’ killings or cold-blooded murders due to fishery market-related competition, are mostly unchecked or unreported in light of maritime impunity. Furthermore, murders and violent crimes in context of the fisheries industry are left unreported because fishermen communities falling into the vulnerable class live in a vicious labour bondage cycle and fear for their loss of livelihood. In the case of a daylight killing that occurred in the middle of Indian Ocean in September 2012, four longliners were seen shooting at a boat of fishermen who were unarmed and cried out helplessly for their lives. The only record of this killing taking place was 10 minutes and 26 seconds of grainy footage that was accidently discovered two years later after the killing, somewhere in Fiji11. Fijian authorities started an investigation but were quick to shut it down after discovering that the incident did not take place in Fijian waters nor involved
9 Midshipman X, “I Was a 19-Year-Old Virgin When I Was Raped by a 60+ Year-Old 1st Engineer Aboard a
Maersk Ship During Sea Year. I Know Several Other Current USMMA Students Who Were Also Raped During Sea Year”, Maritime Legal Aid and Advocacy (28 Sep. 2021).
10 ibid.
11 Ian Urbina, “Murder At Sea
Maritime Crime Doesn’t Begin And End In The Ocean, It Has Onshore Consequences Too”, Post Magazine (14 Mar 2021) <https://www.scmp.com/magazines/post-magazine/longreads/article/3125028/murder-sea-maritime-crime-doesnt-begin-and-end>. any Fijians. There cannot be an investigation and prosecution without identifying the vessels in the video, their registration and subsequent nationality. Without any identification markers, territoriality and jurisdictional issues come to the fore, however, the larger issue here is dispensing justice which seems impossible in light of the same. A vessel tracking intelligence organisation, TM-Tracking who specialise in fisheries crime, were able to identify 3 of the 4 longliners as – Taiwanese-flagged Chun I 217, Seychelles-flagged Chun I 628, Chinese-flagged Liao Yuan Yu 99. Other non-profit organisations like Human Rights at Sea translated the video into English and identified a mixture of Cantonese and Mandarin to be spoken by shooters, thereby tracking down nationalities. However, questions like – identity of the victims and shooters, reason for the killing, entities that could have ordered killing remained unanswered thereby turning this into a cold case12. Subsequent investigations finally revealed Taiwanese connections, an actor in the fishing industry known for its illegal fishing operations and labour abuse. The investigation was a result of combined efforts of Karsten von Hoesslin, TM-Tracking, Greenpeace and Human Rights at Sea, international non-profit organisations whose preliminary evidence was a grainy footage. This brings to fore the question of international policing and responsibility as coast guard patrols do not go beyond certain territorial limits, leaving the ‘middle of the ocean’ unmonitored. Assumption of responsibility remains murky for crimes in the high seas as investigation reports from international organisations are passed around in a cycle from state to state, as observed in the above case. Such diffused responsibility poses a significant hole in the maritime justice system thereby infringing upon basic human rights of those victimised. An Analysis of Lawlessness at Sea Lawlessness at the sea occurs primarily because of the following factors: impugned rules, lack of regulatory enforcement and restricted awareness over human rights violations and crimes transpiring in the high seas. The international and commercial nature of the fishing industry sets a barrier to the governments from enforcing rules and regulations that would prohibit labour and human right abuses in the offshore realm. This lack of enforcement fosters an environment wherein rampant violence in the form of torture, murder, labour abuse, 12 Sarah Tory, “Murder At Sea”, The Wire (5 Nov 2022) <https://science.thewire.in/environment/murder-atsea/>. thievery, piracy, trafficking grow significantly. These human rights violations can extend to slavery and bonded labour wherein men and women are forced to work on deck without pay for years and women are often subjected to sexual abuse. Trafficking and migrant smuggling has emerged as a profitable venture for transnational criminals.13 International Human Rights are applicable across the globe, across States, albeit within their territorial jurisdiction. Thus, this becomes a case of de jure in theory but in practise, international human rights are not adequately or aptly ‘applied universally’14. The conundrum over the sheer subtleties between theory and practicality has led many persons deprived of their rights that they are entitled to, under principles of fairness, equity and justice. As observed from the abovementioned cases, the principal factor in applying UNCLOS and other such law of the sea regulations to any human rights violation case is State responsibility which subsequently connects with enforcement of jurisdiction. Jurisdiction can be interpreted either classically wherein a State can assume jurisdiction as per juridical zones defined by the law of the sea, such as port States, coastal States and flag States15. On the other hand, a restrictive interpretation of jurisdiction can be applied by States who believe that international human rights cannot be applied in conjunction with laws of the sea to individuals and private actors beyond the confines of the State’s territorial waters. However, it is to be noted that such restrictive interpretation and lack of awareness of the laws of the sea gives rise to contemporary acts of violence in the seas. A State’s jurisdiction is not linked to its territoriality but rather, a State bear international responsibility for its flag-bearing vessels and other related private agents operating in the high seas. Recognition of international human rights obligations is binding upon States that are Parties to International Human Rights Instruments. Thus, considerable amounts of bilateral maritime agreements recognise and acknowledge human rights obligations. The E.U.- Mauritania Fishing Agreement have express references to human rights16. This agreement focuses upon proving of human rights violations thereby awarding an evidentiary rule to the same. Absence or lack of witnesses and bleak evidence due have brought down the evidentiary
13 Steven Haines, “Developing Human Rights at Sea”, (Jul 2021) Ocean Yearbook 35(1)
<https://www.researchgate.net/publication/353567087_Developing_Human_Rights_at_Sea>.
14 ibid.
15 ibid.
16 EU-Mauritania Fisheries Agreement and Protocol (Think Tank, European Parliament)
<https://www.europarl.europa.eu/thinktank/en/document/EPRS_ATA(2022)729458>. purpose of conducting investigations thereby requiring a remodelled mechanism to fit contemporary standards that would enable investigation and identification of acts of human rights violations more conducive for timely prosecution. Recently, recommendations have been brought forth for strengthening the human rights clauses in Sustainable Fisheries Partnership Agreements (SFPA) in light awarding termination or remedies due to any breach of universal human rights17. Conclusion The very essence of international human rights lies in right to life, right to freedom from torture, inhumane or degrading treatment, slavery and servitude. The significant nature of the same as enshrined in international treaties and conventions like UDHR, UNCAT, ECHR, ICCPR make them non-derogable in nature. State Parties are expressly prohibited from derogating from such rights which are considered intrinsic to human life. In the high seas, the States have created an environment of ‘commercialised boroughs’ for every maritime-related sector currently operational. Maritime related policies formulated by States aimed at large sale commercialisation of fisheries, shipping, offshore oil and gas industry give rise to horde of labour crimes and human rights violations, now unfortunately set as a tacit industry norm. Derivation from international non-derogable human rights to even enforce maritime security is growing concern18. Revamping of the maritime infrastructure and security in light international offshore trading opportunities has neglected the already weak regulatory framework which needs to conform to the cardinal principles of non-derogable human rights. In context of the same, States need to advocate for humanisation of the commercial maritime sector to accommodate the growing human rights concerns and rampant violations. Furthermore, creation of a public database for registration of offshore crimes would help consolidate flagrant human rights violations and facilitate investigation procedures. It should also be noted that international organisations and welfare non-profit organisations have
17 European Commission and Mava Foundation, “10 Priorities For The Future Of Sustainable Fisheries
Partnership Agreement” (May 2020) Joint Position Paper <https://wwfeu.awsassets.panda.org/downloads/ble_cffa_wwf_sfpa10keyrecommendations_en.pdf>. 18 United Nations Human Rights Office of the High Commissioner, “Violations by mercenaries and private military and security companies highlight urgent need for maritime security oversight: UN experts” United Nations (1 Nov 2022) <https://www.ohchr.org/en/press-releases/2022/11/violations-mercenaries-and-private-military-and-securitycompanies-highlight>. already set forth the bar for protection of rights of individuals in the high seas through development of maritime labour laws and thus can be said to establish a precedent for establishment of concrete IHRL in the high seas.
Index of Authorities
STATUTES United Nations Convention on the Law of the Sea, 1994. Maritime Labour Convention, 2006. Constitution of India, 1949. ARTICLES European Commission and Mava Foundation, “10 Priorities For The Future Of Sustainable Fisheries Partnership Agreement” (May 2020) Joint Position Paper <https://wwfeu.awsassets.panda.org/downloads/ble_cffa_wwf_sfpa10keyrecommendations _en.pdf>. EU-Mauritania Fisheries Agreement and Protocol (Think Tank, European Parliament) <https://www.europarl.europa.eu/thinktank/en/document/EPRS_ATA(2022)729458>.
PRESS RELEASES
United Nations Human Rights Office of the High Commissioner, “Violations by mercenaries and private military and security companies highlight urgent need for maritime security oversight: UN experts” United Nations (1 Nov 2022) <https://www.ohchr.org/en/press-releases/2022/11/violations-mercenaries-and-privatemilitary-and-security-companies-highlight>.