With a human population of roughly 30 million at any given moment, the ocean hosts a roughly Texas-sized community of people who are all too often out-of-sight and out-of-mind to the rest of us. The difficulty of effective governance of the ocean poses a serious challenge for human rights, as it does for many other areas of maritime policy. 

THE LAW

There is currently no bespoke legal instrument that codifies and protects human rights in the maritime context. What we have instead is a more piecemeal array of maritime conventions that address some specific human rights, such as the Maritime Labour Convention (MLC) for certain basic labour rights, and the International Convention for the Safety of Life at Sea (SOLAS), which also does what it says on the tin. Obligations on seafarers to rescue persons in danger or distress at sea are also included in the UN Convention on the Law of the Sea (UNCLOS), a 1982 treaty which sets out the structure of public international maritime law and functions in many ways as a constitution of the oceans. Human rights were largely an afterthought in the drafting of this convention, which “has more to say about the protecting fish than about protecting people," and it is highly unlikely that there will be a wholesale renegotiation of UNCLOS to correct this.

In addition to these maritime conventions, national and international human rights law applies at sea as it does on land wherever a state has jurisdiction. There are three main ways for states to exercise jurisdiction at sea, which are coastal state jurisdiction, flag state jurisdiction, and port state control.

The extent of coastal state jurisdiction over seagoing vessels is codified by UNCLOS. In a nutshell, the further away you sail from the coastal state, the fewer rights it has to exercise jurisdiction over you. 

The maritime zones defined by UNCLOS range from the coastal state’s internal waters, in which its sovereignty is unrestricted, to the high seas (i.e international waters) where it has no jurisdiction at all except in relation to crimes of universal jurisdiction such as piracy. In between these extremes, states are entitled to claim other zones including a 12 nautical mile territorial sea and a 200 nautical mile exclusive economic zone (EEZ). In the territorial sea, the coastal state is required to allow foreign vessels a right of innocent passage but may enforce certain specified categories of its domestic legislation. In the EEZ the coastal state can merely regulate the exploration and use of its marine economic resources.

Human rights is not expressly designated as an enforceable category of law in any maritime zone, so coastal states can only enforce human rights law where it is successfully incorporated into another category. The Geneva Declaration on Human Rights at Sea, a recent NGO publication and potential new soft-law instrument, recommends that coastal states invoke their right to suspend innocent passage of a vessel that threatens their “good order” when human rights violations are committed in the territorial sea, and that they use their jurisdiction in the EEZ to require vessels that use or explore their marine resources to comply with human rights law.

Flag state jurisdiction is based on the requirement that all vessels must be registered with a state, and comply with all the laws and regulations of this state wherever the vessel travels. UNCLOS feebly mentions that there should be a “genuine link” between a vessel and its flag state, but this criterion is unhelpfully vague and the consequences of failing to meet it are not spelled out. In practice this fails to prevent shipowners from selecting “flags of convenience” – that is, flag states with ship registers open to foreign owned vessels, which typically have a laissez-faire attitude both to the making and the enforcement of regulations.

Port state control is a regime of ship inspection by port authorities, designed as a corrective to the failures of many flag states to enforce international shipping regulations. Because ports lie within the state’s internal waters, the state has full authority to enforce these regulations. However, port state control is mostly a product of regional memoranda of understanding rather than UNCLOS, and a substantial number of maritime states do not participate in these agreements. The potential of port state control to be used as a vehicle for enforcing human rights law to its fullest extent, rather than merely those provisions which are framed as shipping regulations, remains devastatingly untapped.

THE REALITY 

These mechanisms clearly fall short of what is needed—maritime human rights violations are reported daily. It is likely that they are substantially more prevalent than we know, because as it is they are difficult to observe and often go unreported. The monitoring of these violations is hindered by the remoteness of vessels at sea, and their policing is hindered by the limitations of state jurisdiction at sea. To date, the international community has failed to muster the will to tackle this problem. 

The Geneva Declaration damningly assesses the cumulative result of these factors as “a maritime environment in which vulnerable people can be abused by others, with the perpetrators frequently acting with impunity and with little or no risk of censure or sanction.” It then gives an overview of some of the most common kinds of maritime human rights violations. 

The subjection of fishers and other seafarers to various forms and degrees of abuse is a recurring theme; perhaps unsurprisingly as they constitute the vast majority of the maritime population. The illegal, unreported, or unregulated (IUU) sector of the global fishing industry is particularly prone to mistreating workers, relying frequently on poorly paid labour, or even child labour or slave labour. Workers are frequently recruited into this sector under false pretences, and many of them are suspiciously “lost at sea” after becoming sick or injured. 

Basic provisions for the physical and mental welfare of seafarers are frequently inadequate throughout the shipping industry. During the COVID-19 lockdowns, seafarers have often been prevented from disembarking from vessels for months beyond the end of their contracts, often without access to medical supplies, vaccines, or personal protection equipment, and isolated from their friends and families. The practice of simply abandoning crew after a company bankruptcy or during a ship arrest is common and similarly results in enormous hardships for the seafarers who are left stranded onboard a vessel potentially at a vast distance from their homes.

Beyond these employment-related rights abuses, the maritime world is beset with various forms of violence. Piracy is designated as a crime of universal jurisdiction, which empowers states to combat it on the high seas, but UNCLOS defines it too narrowly by focusing on acts that are committed “for private ends.” The bizarre fixation on the perpetrator’s motive in this definition makes it more difficult to tackle politically motivated violence and terrorism, even though the resulting harm from those is no less severe. Privately contracted armed security personnel (PCASP) are increasingly relied on to deter pirate attacks, but they are poorly regulated and are themselves often the perpetrators of violence at sea. Sexual violence is common at sea, especially in the context of human trafficking, but also on commercial cruises where such crimes occur with an unhelpfully large pool of suspects, without effective oversight by the flag state and with shipowners who have an incentive to avoid the publicity of an investigation. Further risks of direct and indirect harm emanate from state activities—such as the unlawful targeting of non-combatant vessels during conflict, or domestic laws designed to criminalise those who assist asylum seekers, which potentially undermine seafarers’ obligations to rescue persons in danger or distress at sea.

THE FUTURE

Fortunately, awareness of the abuses that take place at sea may slowly be cutting through to policymakers and the public. In the United Kingdom, the House of Lords’ international relations and defence committee has now published a report on the effectiveness of UNCLOS in the face of today’s oceans governance challenges, and it devotes 12 of its 98 pages to the maritime human rights situation, relying partly on evidence from the authors of the Geneva Declaration.

The Declaration recommends that all states should enact the relevant legislation to implement their obligations under international human rights law, and ensure that domestic courts have the competence to recognise, address and penalise human rights violations under their maritime jurisdiction. Administrative monitoring and enforcement of such legislation should also be consistent.

Flag states should cooperate with the exercise of human rights monitoring by port states and coastal states in all maritime zones, and they should request port and coastal states to detain their vessels for breaches of relevant flag state laws. They should ensure that masters (i.e ship captains) cooperate with port and coastal state monitoring and that masters themselves report any human rights breaches on board so that they can be addressed by the flag state. To the best of their ability they should monitor and enforce their own human rights laws, especially on the high seas where the flag state is typically the only state that has jurisdiction. Flag states should avoid de-registering vessels on the high seas at all times (even when they would otherwise have legitimate grounds to do so), in order to avoid rendering the vessel stateless and unaccountable.

The House of Lords report notes that the jurisdictional complexities of maritime law can lead to cases where the courts of all relevant states decline to accept jurisdiction over a human rights case against a non-state actor, leaving the victim without access to remedy, and suggests that the government investigate the possibility of an arbitration mechanism designed to fill such gaps in access to justice. Such a mechanism could also help by providing a specialist dispute forum which, unlike most international human rights bodies, does not require the claimant to have first exhausted all domestic remedies, which for many claimants is prohibitively costly and time consuming. 

The report concludes that the piecemeal maritime human rights status quo is inadequate and calls on the government to work with “like-minded partners” to develop a unified approach that creates new mechanisms in addition to making full use of the existing range of tools. However, it is unclear whether this call will be heeded by the current Conservative UK government, which has already demonstrated its indifference towards saving lives at sea in the Nationality and Borders Bill. Hopefully other maritime powers will be more inclined to take the lead.

Joe Hodson is the paralegal at Sach Solicitors, a London shipping law firm. He holds a master's degree in international maritime law from Swansea University.

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