Geneva Declaration on Human Rights at Sea (Version 1, 5 April 2019) – a contribution to the discussion on human rights in the maritime context

By: Jessica Schechinger

PDF version: JCLOS Blog_May 6 2019_Human rights at sea Declaration

Document commented on: Geneva Declaration on Human Rights at Sea (Version 1, 5 April 2019)

On 5 April 2019, the first version of the Geneva Declaration on Human Rights at Sea (hereafter: the Declaration) was published by Human Rights at Sea (hereafter, HRAS). HRAS is a charity based in the United Kingdom, that recently celebrated its fifth anniversary. It aims to raise ‘global awareness of human rights abuses at sea’, by undertaking research, investigation and advocacy.

According to HRAS’ press release, the Declaration was published on the basis of the first drafting session which took place in Geneva on 20-21 March 2019. Anna Petrig (a member of the board of advisors of HRAS), Irini Papanicolopulu, Steven Haines (a trustee of HRAS), and David Hammond (the founder of HRAS and currently a trustee) are the drafters of the Declaration. They were assisted by Elisabeth Mavropoulou and Sayedeh Hajar Hejazi.

The HRAS press release revealed that ‘[t]he first drafting round was supported with input and observers from multiple UN agencies, leading human rights lawyers, international and civil society organisations’. The press release did not specify who was involved, but hopefully this will be revealed after the second drafting session. This second drafting session is envisaged to be held in Geneva in May 2019, which is also when the four Annexes (entitled ‘Contemporary Evidence of Human Rights Abuses at Sea’ (A); ‘List of Applicable Fundamental Human Rights at Sea’ (B); ‘Commentary’ (C); and ‘Operationalising Human Rights at Sea’ (D)) will be finalised (at 3). As the Declaration is a work in progress, the following short blog post offers only some preliminary thoughts.

The Declaration

The Declaration is three pages long and begins with a (comparatively rather long) ‘Preamble’. This is followed by a provision defining its ‘Aim’ (‘to raise global awareness of the abuse of human rights at sea and to mobilise a concerted international effort to put an end to it’, at 1). Page 2 describes the ‘Assumptions’ and provides a section on ‘Human Rights at Sea’. The latter section continues onto page 3, which introduces the ‘Fundamental Principles’ (see the following section on the concept of human rights at sea). A section on ‘Annexes’ announces that these will be finalised at the second drafting session.

The concept of human rights at sea

The ‘concept’ of human rights at sea, according to the drafters, is based on four ‘Fundamental Principles’ (hereafter: Principles) (at 3):

A. Human rights apply at sea to exactly the same degree and extent that they do on land.
B. All persons at sea, without any distinction, enjoy human rights at sea.
C. There are no maritime specific rules allowing derogation from human rights standards.
D. All human rights established under treaty and customary international law must be respected at sea.

It is expected that there will be some elaboration of these Principles in the second version, perhaps as part of the (future) Annex C (Commentary). Given that the drafters – most notably, Petrig (see e.g. here and here) and Papanicolopulu (see e.g. here and here) – have written extensively on issues relating to human rights at sea, the expected elaboration will surely strengthen the Declaration. We will have to wait and see which human rights norms the Declaration will focus on in the (future) Annex B, and how detailed the analysis will be in the Commentary.

Some thoughts on the Declaration

As the Preamble recognises (at 1) ‘it is a harsh fact that not all those at sea find themselves under the effective jurisdiction of States capable of protecting their human rights’ and ‘even if known about it, serious human rights abuses are not easily policed at sea … even within coastal regions’. However, the Principles as they currently stand, and parts of the Declaration in general, seem to oversimplify the (legal) reality at sea. This is perhaps illustrated in the following quotation (at 2):

[t]he public order of the oceans, including the protection of human rights for all people, is a collective responsibility of the international community. The “international community” consists of individual States, none of which should abdicate their share of the international community’s collective responsibility for human rights standards at sea. States also need to act individually, as well as collectively, when necessary. In particular, flag States, coastal Stats and port States need to act to ensure that all people at sea effectively enjoy their human rights, including the availability of an effective remedy if their rights are breached or abused.

This rather broad and vague quotation, together with another quotation (at 2) concerning human rights enforcement at sea – that is: ‘all States need to accept their extraterritorial responsibilities on the oceans’ (emphasis added) – show that (parts of) the Declaration are not part of what currently is accepted as (de lege lata) public international law.

Several scholars have addressed human rights issues at sea in recent years (and some already quite some time ago), especially in the maritime piracy and migration contexts. However, significant gaps remain in our understanding of the role of international human rights law in the maritime context, and its relationship with the law of the sea. The roles and obligations of states under current international law regarding (alleged) human rights violations at sea are not as clear cut as the Declaration seemingly supposes. This is especially the case if the state involved is not the flag state, and does not have a jurisdictional link to (and interest in) the victim of an (alleged) human rights violation. Jurisdiction at sea can also be complex due to the possibility of overlapping jurisdictions for the prescription and/or enforcement of rules at sea.

One example of a complex human rights at sea issue is the arrest, possible transfer, and detention of alleged pirates. This is also acknowledged on the part of the HRAS website that deals with Petrig’s research on piracy and law enforcement. HRAS observes that ‘[w]hile there is general agreement today that human rights, as a set of fundamental guarantees, apply in the maritime environment, there is some legal uncertainty as to their application in concreto. As regards counter-piracy operations, various factors contribute to this uncertainty’. In this regard, it will be interesting to see whether version 2 addresses the concrete application and interpretation of human rights norms by domestic courts, in particular how they interpret the (exceptional) circumstances that may surround operating at sea (especially the high seas). This is because of the (potential) derogation in terms of legal human rights standards that courts may consider to be legitimate in the maritime context, but unlawful outside of the maritime context.

It is important to note that the Declaration is a not a legally binding instrument and has no direct legal effect. Rather, it is a soft law initiative, which claims to reflect (at 2) ‘existing and established international law and principles’. The question that arises however, as illustrated above, is whether, in its present form, this is indeed the case.

Concluding remarks

The Declaration is a timely initiative on a topical issue, which is definitely to be commended. However, while recognising that the Declaration is a work in progress, the Declaration in its current form is not very clear and contains some rather sweeping statements. It will be interesting to see how much version 2 differs from version 1, and, in particular, how detailed the drafters will be in their commentary and analysis of the applicable international law of the sea and human rights provisions. Although this Declaration has no direct legal effect and is not a legally binding instrument, this does not detract from the value it might have as a (start of a) soft law initiative that has the (future) potential to shape academic debate and states’ human rights policies.

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This post may be cited as: Jessica Schechinger, “Geneva Declaration on Human Rights at Sea (Version 1, 5 April 2019) – a contribution to the discussion on human rights in the maritime context”, May 6, 2019, online: http://site.uit.no/jclos/files/2019/05/JCLOS-Blog_May-6-2019_Human-rights-at-sea-Declaration.pdf

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