As ashore, so at sea

Human rights at sea

David Hammond, CEO and founder of Human Rights at Sea, examines an emerging and necessary maritime focus beyond the horizon of previous conventions on the law of the sea

If in early 2013 you had typed “human rights at sea” into a search engine you would have found little other than research papers suggesting that human rights should and could be applied at sea under existing legal instruments. This despite an obvious lack of an explicit mention of the words ‘human rights’ within the 1982 UN Convention on the Law of the Sea (UNCLOS), or the 2006 Maritime Labour Convention (MLC 2006).

From another perspective, the emerging suggestion that pirates were entitled to human rights protection was met with disbelief in some national quarters and by some former Royal Navy colleagues.  Yet in 2014 the European Court of Human Rights found in favour of nine Somali pirates in the cases of Ali Samatar and Others v. France, and Hassan and Others v. France.

Human rights front and centre

The rogue fishing vessel STS-50, which under various names and flags was pursued for illegal fishing by various countries’ authorities, as well as by Interpol and the NGO Sea Shepherd. It was finally captured with 600 illegal gill nets aboard in April 2018 by an Indonesian patrol boat in the Strait of Malacca. According to the Environmental Justice Foundation, ‘The mostly Indonesian crew lacked any kind of identity documents, had not received any pay, and had worked on board the vessel for an extended period of time – all potential indicators of human trafficking.’ The captain and officers turned out to be Russian and Ukrainian, and links to organised crime were discovered in bank accounts. Photo: Sea Shepherd Global

Fast-forward to the onset of the Covid-19 pandemic in early 2020, and you would have found the issue of fundamental human rights for those working at sea, generated by the global publicity about abandoned and extended crew members, being spotlighted in UN agency discussions and resolutions. The Maritime Labour Convention 2006 was clearly being ignored by some states and some commercial shipping interests, leaving many seafarers significantly exposed to human and labour rights abuses.

The emerging humanitarian issues were being talked about not just within the walls of the International Maritime Organization (IMO) and International Labour Organization (ILO), but also the Office of the High Commissioner on Human Rights (OHCHR), the International Chamber of Shipping (ICS), global unions, and even the UN Global Compact, the world’s largest corporate sustainability initiative. This was a first under the human rights at sea aegis.

The maritime industry responded by issuing the Neptune Declaration on Seafarer Wellbeing and Crew Change, signed by over 800 entities, urging the implementation of four main actions to address the crisis:

  1. Recognise seafarers as key workers and give them priority access to Covid-19 vaccines.
  2. Establish and implement gold standard health protocols based on existing best practice.
  3. Increase collaboration between ship operators and charterers to facilitate crew changes.
  4. Ensure air connectivity between key maritime hubs for seafarers.

Nonetheless, at the time of writing there has been little improvement in working conditions at sea for many seafarers.

A humanitarian and safety crisis

On 12 June 2020, UN Secretary General Antonio Guterres unprecedentedly classed the crew-change crisis and consequent effects on essential supply-chain workers as a ‘humanitarian and safety crisis’. This came at a time when seafarers globally were fighting to be recognised as key (essential) workers, to be safely repatriated to their families, and not to be subjected to working conditions which sometimes amount to forced labour (their contracts are often extended well in excess of the maximum period under the MLC 2006).

But as yet many crew members have still had little or no option but to continue to work at sea throughout the pandemic.

It is not just about seafarers

Workers on offshore oil and gas platforms are among over 36 million people across the world whose employment is at sea. Photo: Berardo62 CC-BY-SA2.0

The topic of human rights at sea is not all about the 1.6–1.7 million seafarers (equivalent to the population of Glasgow) who keep more than 90 per cent of the world’s goods flowing.

It also includes:

  • the 35+ million workers in the global fisheries sector and in the offshore oil and gas, renewable energy and cruise line industries
  • the global movement of the more than 80 million displaced persons, as reported in June 2021 by the UN High Commissioner for Refugees (UNHCR), including those crossing the Mediterranean fleeing persecution, conflict, violence, human rights violations and events seriously disturbing public order, as well as those seeking a better life
  • stowaways seeking the same
  • those rescued at sea by commercial vessels, civil society search & rescue organisations and private actors
  • individuals pushed by governments – fully aware that they are breaching the internationally recognised rule of non-refoulement – into the control of repressive governments, many of which treat those individuals as though they are sub-human, brutalising men, women and children through systemic rape and exploitation into tied conditions of slavery and trafficking.

This is before we review the egregious abuses endemic in the SE Asian coastal and distant water fishing fleets.

Human Rights at Sea

In September 2013, at the first London International Shipping Week, there arose the concept of an independent civil society organisation focused on advocating for human rights at sea.

As a result, Human Rights at Sea came to fruition in 2014 as a UK-registered independent charitable NGO, working nationally and internationally to end human rights abuses at sea; our founding principle is ‘human rights apply at sea, as they do on land’. This principle is central to all our charitable activities, which aim to achieve increased social, policy and legislative change, as exemplified by the amendment in New Zealand’s maritime law.

With Lord Teverson of Tregony, a Liberal Democrat Member of the UK House of Lords, as our patron, we now have: 11 trustees with wide-ranging international business, academic, legal and civil society experience; a non-executive advisory board of 18 members; and a core staff, with retained consultants: the legal pro bono support of five international law firms and a pro bono researcher pool of 10–18 persons. Thus fortified, our charitable NGO is now delivering an objective civil society perspective on issues of human rights abuse throughout the maritime environment.

Research, advocacy, investigations and lobbying (RAIL)

The victim-oriented process developed by HRAS and Shearman & Sterling LLP.

For eight years we have worked diligently to our RAIL model, pursuing continued professional excellence. We are known as an independent and objective organisation, especially when it comes to the issues we cover on a day-to-day basis, which are predominantly victim-focused.

Not satisfied with merely reporting via oral and written advocacy, we have decided to drive social change; we do this by using existing international law frameworks and soft-law pathways as our core foundation.

In March 2019 the Geneva Declaration on Human Rights at Sea was conceived to draw together existing legal regimes and to express in plain English the need and the requirement for explicitly addressing human rights abuses at sea. The Declaration is framed within four core principles:

  1. Human rights apply at sea to exactly the same degree and extent that they do on land.
  2. All persons at sea, without any distinction, are entitled to their human rights.
  3. There are no maritime specific rules allowing derogation from human rights.
  4. All human rights established under treaty and customary international law must be respected at sea.

The Declaration is now reflected in the 35th edition of Brill’s Ocean Yearbook, a leading publication devoted to ‘assessing the state of ocean and of coastal governance, knowledge, and its management’. The Declaration’s principles are used by numerous entities to frame their position on the subject.

In the same year the charity partnered with the international law firm Shearman and Sterling LLP. The aim of this partnership was to develop a victim-led project repurposing existing systems of arbitration for the benefit of victims and their families, and to introduce another voluntary tool and pathway for achieving effective remedy. This project is under continuing development, including: the drafting of state and commercial consent orders; the development of the rules, policies and regulations required to conduct an ad hoc tribunal; and the innovation of the pathway with interested stakeholders working towards the first tribunal of its kind.

Further, on 22 June 2021 Lord Teverson asked the House of Lords what Her Majesty’s government was doing to protect human rights at sea. This was the first time the topic had been raised in a parliamentary setting, and it was done with the specific intent of both triggering an initial discussion, and furthering the charity’s enquiries into what the UK government understood by the term ‘human rights at sea’ and what the government saw as its associated duties. The charity thus succeeded in getting both the issue and the emerging narrative put onto the public record.

Meantime, our core casework continues, as a wide range of enquirers – victims, families, coastal and flag states, commercial entities and marine insurers – approach us daily, requesting assistance to address cases of abuse at sea. Their need for assistance is not the issue: the issue is the lack of resources to service the need.

In sum

While you are reading this article the abuses at sea are not stopping. The inconvenient truth of the scope, scale and prevalence of the violations occurring out of sight and out of mind continues to be played out day in and day out. It is the lack of general awareness, the lack of public concern – such seemingly distant issues do not directly affect most people – and simply the ignorance of what is happening beyond the visual horizon that keep our organisation and others like us continuously busy.

It is ironic, therefore, that had it not been for Covid-19 the narrative of human rights at sea would not be on the radar of the multi-trillion-dollar maritime industry, nor in the workflows of ministers of state around the world, nor discussed by international media. Had it not been for the pandemic, it is highly unlikely that the same level of attention, related actions and corporate focus on human rights at sea would have occurred. After all – as some of us have come to begrudgingly understand – the vast majority of maritime workers (and their family members) are often seen by many corporate eyes as just a commodity easily replaced.

So it is time for us all to recognise the need to explicitly protect human rights at sea. It is time to update and amend international maritime conventions to explicitly reference the need to protect human rights at sea. There is an imperative need to convene and deliver genuine non-partisan initiatives such as the development and adoption of the Geneva Declaration on Human Rights at Sea, and an ad hoc victim-led international Human Rights at Sea Arbitration Tribunal.

David Hammond previously served in the Royal Navy, and in the Royal Marines as a naval helicopter pilot, then became the first Royal Marine barrister. He retired early in 2012 to work with the UK government’s Stabilisation Unit, practising maritime and human rights law. During this time he conceived and established the 100 Series Rules for the Use of Force and Human Rights at Sea. He holds a BA in Marine Biology and a Post-Graduate Degree in Law, and has practised in defence and prosecution.