The Chief Executive Officer and Chief Operating Officer of IOJI were speakers and active participants in the Conference on Human Rights at Sea December 5-7 2022 organized by Wilton Park. Wilton Park is an executive arm of the UK Government’s Foreign, Commonwealth & Development Office which provides a global forum for strategic discussions.
The three-day event which took place at an estate in Beaconsfield, Buckinghamshire, England focused on identifying and exploring the tensions between the fundamental concepts underlying the law of the sea and the obligation to protect human rights at sea based on the views of academics, government experts, the United Nations and the European Union, as well as representatives civil society, lawyers and practitioners from around the world.
Human rights are widely recognized as applicable at sea. However, there are pressing questions about how human rights law and the law of the sea can be reconciled given the unique realities of the sea and the governance structures of the sea as provided for in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). For example, the current law of the sea adopts a functional approach to the jurisdiction of countries with exclusive economic zones, the principle of exclusive flag state jurisdiction, and freedom on the high seas.
Instead, human rights systems are based on and developed primarily with reference to protection on land. This leads to complexities regarding jurisdictions and state competencies when trying to integrate quite different regimes with different jurisdictional approaches. Without further development and clarification of the relationship between the law of the sea and human rights of the sea, practical obstacles to the effective protection of human rights in the maritime context will remain.
Upholding human rights at sea is now an increasingly pressing issue. At this meeting of legal experts, IOJI presented a paper entitled “Mapping of National Policies and Practices regarding Human Rights Protection at Seas”. As the title suggests, this paper mainly considers how the implementation of the fulfillment of human rights obligations at sea can be observed by comparing various concrete human rights protection practices for migrant seafaring workers associated with important structures in marine governance.
IOJI mapped national policies and practices and shared lessons learned from two major cases in Indonesia, namely Benjina and Ambon which occurred in 2015. IOJI’s presentation cited a study with Stanford University which identified five root causes that hindered the protection of Indonesian migrant workers/fishermen and several recommendations to strengthen protection for them.
During the holding of the conference, the UNCLOS Convention was discussed critically. UNCLOS, often described as the “constitution of the seas”, is in new focus as 2022 UNCLOS marks its 40th Anniversary. Despite its broad scope and long history of entry into force, the UNCLOS Convention does not address all issues of contemporary relevance because it does not reflect issues that had not yet emerged at the time of its adoption in 1982.
One area where UNCLOS has failed is the protection of human rights at sea. This is a topic that is receiving increasing attention because, while there is growing acceptance that human rights obligations can apply at sea, there is also a growing awareness that the basic approach to ocean governance reflected in UNCLOS makes this difficult to achieve.
The basic assumptions of exercising jurisdiction at sea and the basic assumptions that support contemporary approaches to protecting human rights are very different and very difficult to reconcile from a practical perspective. The overarching aim of the conference at Wilton Park is to explore and articulate these difficulties and to reflect on how best to overcome them.
The challenges to upholding human rights at sea are very broad. These include issues of jurisdiction over human rights violations and the individuals involved, enforcement and compliance with human rights laws, the absence of effective mechanisms to monitor human rights at sea, and the difficulties victims face in seeking justice.
This conference is a direct response to the 2021 House of Lords United Nations Convention on the Law of the Sea inquiry (UNCLOS), which investigates whether the international maritime constitution entitled UNCLOS is still relevant to addressing problems and objectives in the 21st century or not. Congregated experts, including Sir Malcom Evans Professor of Public and International Law at the University of Bristol, agreed that the 1982 UNCLOS was no longer sufficient.
Considering the various existing issues and possible approaches moving forward, the key recommendations of the Wilton Park Ocean Human Rights Conference are as follows:
There is a need to articulate what is meant by human rights violations at sea and its consequences and identify all obligations that must be fulfilled in order to enjoy various benefits at sea. This can be achieved through laws or legal instruments that provide detailed guidance on how to apply human rights meaningfully in the maritime context.
Instruments can be developed by a joint working group of human rights law experts at sea at the Human Rights Committee & International Law Association/ILA. Such work should not diminish the possibility of a comprehensive agreement on human rights at sea in the future.
The conceptual basis for human rights at sea needs to be reconsidered. This includes determining whether the threshold for triggering jurisdiction at sea may differ from that on land. This can be achieved by setting up a working group of experts on the law of the sea and the Human Rights Committee to develop a General Comment on Human Rights at Sea, form a committee at the ILA to map out specific problems and propose solutions, also seek a General Assembly Resolution or ask the Human Rights Council to adopt a Special Rapporteur on Human Rights at Sea.
There needs to be better monitoring and data collection on human rights at sea, as well as removing specific obstacles to effective enforcement of human rights at sea. This can be achieved by extending current technologies used to monitor other activities at sea into new areas and collecting data to better understand the nature of human rights violations at sea, including through civil society organizations, and making them widely accessible.
Existing inspection schemes such as fishing permit inspections in the Exclusive Economic Zone (EEZ) could be expanded to include human rights considerations. Cooperative enforcement approaches should be promoted and initiatives originally developed to combat piracy or illegal fishing could be expanded to detect and target human rights violations.