The First Parliamentary Debate on Human Rights at Sea: One Step Forward, Two Steps Back?

On Tuesday, 22 June 2021, the House of Lords debated for the first time the steps the UK has taken to protect human rights at sea. The debate was initiated by an oral question raised by Lord Teverson of Tregony who has been acting as Patron of the UK-based charity Human Rights at Sea. The founder and CEO of the charity, David Hammond, characterised the debate as ‘historic’ and underlined that “the public conversation has begun to mainstream ‘human rights at sea’”. Undoubtedly, the debate gave prominence to the protection of human rights at sea, a topic that continues to gather momentum in the scholarly debate (Papanicolopulu, 2018; Galani, 2020; Haines, 2021) and in practice (UNODC, The Geneva Declaration of Human Rights at Sea). Indeed, the time was ripe for such a debate in the UK, but a closer look at the responses of the UK Government could leave one wonder whether it has realised the complexities of enforcing human rights at sea and whether it is moving to the right direction to comply with its human rights obligations. Without belittling the significance of the debate, this post aims to highlight some of its weaknesses with a view to reflecting on the current position of the UK Government in protecting human rights at sea and on what it needs to consider going forward.

The Significance of the Debate

The debate started with an open-ended question asked by Lord Teverson of Tregony about the steps the UK Government is taking to protect human rights at sea. Several supplementary questions followed touching upon the ongoing challenges faced by seafarers and fishers which have been aggravated by the Covid-19 pandemic. These included questions about the restrictions on crew changes, access of seafarers to Covid-19 vaccinations and internet access on board vessels. Other questions concerned the protection of persons fleeing warzones by sea and rescue at sea. The UK Government was also asked whether it agrees that there is a need for the concept of ‘Human Rights at Sea’ to be accepted globally and whether States have the primary responsibility for enforcing human rights at sea.

The questions asked by the Lords reflect the diverse legal challenges of enforcing human rights at sea as well as the various human rights violations experienced by seafarers, fishers and refugees. In this way, a significant debate was inaugurated at the UK Parliament and the UK Government was invited for the first time to reflect on its efforts to enforce human rights at sea. The timing of the debate is important in that it contributes to raising awareness of the humanitarian crisis caused by the Covid-19 pandemic at sea. Border closures and port restrictions, as a public health precaution, meant that thousands of people found themselves stranded at sea (see here, here and here). Seafarers have been most affected by port restrictions and hundreds of thousands of them have been forced to work long beyond their contracted time often in poor conditions that fall short of the hygiene and social distancing protocols (Doumbia-Henry, 2020; Klein, 2020). At the same time, the debate put a spotlight on the ongoing migrant crisis in the Mediterranean Sea. Despite the bizarre way in which the questions were framed – Lord Singh of Wimbledon asked about the moral rather than the legal responsibility of the UK to protect refugees trying to escape war-torn regions by sea and Lord Mackenzie of Framwellgate asked whether the common law defence of necessity would apply if a scenario arose similar to the facts of R v Dudley and Stephens in which the sailors of a shipwreck had to eat a cabin boy to survive starvation while awaiting to be rescued – these questions highlighted the extreme risks faced by those who try to reach Europe on unseaworthy boats and might find themselves in distress.

The Weaknesses of the Responses on Behalf of the UK Government: Two Steps Back?

The responses, however, on behalf of the UK Government disclose the often narrow-minded and, as a result counterproductive, approach taken to the protection of human rights at sea. While Baroness Vere of Norbiton acknowledged the concerns about human rights abuses at sea and agreed that States are predominantly responsible for enforcing human rights at sea, the rest of her responses revolved around the steps that the UK has taken to enforce labour standards in line with the Maritime Labour Convention, 2006 and ILO 188, the Work in Fishing Convention, 2007. This is a significant oversight on behalf of the UK Government and the perception that the protection of human rights at sea concerns only its labour obligations should change if the State is to comply with its human rights obligations. The reason is that human rights abuses might affect any person found at sea be it for employment, recreation, military purposes or migration (Papanicolopulu, 2018). The enforcement of working and living conditions at sea are crucial for those employed on board vessels who, as alluded to, are at a great risk of human rights abuses because of the long periods of time they spent at sea. Indeed, the UK strongly supported the designation of seafarers as key workers – a much needed measure to facilitate crew changes during the Covid-19 pandemic.

However, when focusing on seafarers we should not be losing sight of other persons employed at sea who might be subject to abuses, such as persons working on platforms, science vessels or NGO-run boats or as independent fisheries inspectors. In addition, female seafarers, often face abuses that might fall beyond the scope of labour law, such as systematic sexual harassment, rape, bullying, gender discrimination or prolonged periods of isolation which might be better protected under international human rights law. Labour law is not applicable to migrants and refugees whose protection requires the effective application of the law of the sea, human rights law and refugee law. Despite the confidence of Baroness Vere of Norbiton that modern-day search and rescue services can respond to distress calls very fast, it has become commonplace for certain States to ignore distress calls by migrants or respond to them when it is too late (see, for example, the facts of AS, DI, OI and GD v Malta, CCPR/C/128/D/3043/2017, 27 January 2021; AS, DI, OI and GD v Italy, CCPR/C/130/D/3042/2017, 27 January 2021), order vessels carrying rescued migrants to stay away from their ports (see, for example the Aquarius incident here and here) or push them back to prevent them from reaching their shores. The UK is not an exception itself as it has taken a hostile approach to illegal Channel crossings, especially following Brexit. In August 2020, the UK Home Office appointed a new commander (with the rather dubious title ‘Clandestine Channel Threat Commander’) to lead the UK’s efforts to tackle illegal attempts to reach the UK while, reportedly, a year later, Priti Patel’s failure to reduce the number of illegal crossings has caused tensions to the Government. Furthermore, the rise in reported cases of sexual assault, rapes and human trafficking on board cruise ships show that abuses can take place anywhere at sea and a lot more needs to be done than just enforcing labour standards.

Where Do We Stand and What’s Next for the UK?

As noted, the protection of human rights at sea continues to attract attention. In 2019, the UN Secretary General noted that ‘people at sea, whether employed or migrating, in particular those individuals who are not under the effective jurisdiction of States capable of protecting their basic human rights, often find themselves in a position of vulnerability and require protection against threats to such rights’. This proved to be particularly true during the Covid-19 pandemic when thousands of people were stranded at sea. Until recently, human rights abuses at sea used to go mostly unnoticed, but they are now increasingly documented while litigation concerning the protection of human rights at sea is on the rise (see, for example, here and here). It is now widely accepted in the literature that international law, including the law of the sea, human rights law and labour law, affords protection to persons at sea and the calls have increased for a more complementary application of the various regimes to persons at sea with a view to offering comprehensive protection to all persons at sea whose rights are at risk of being violated (Papanicolopulu, 2018; Galani, 2020; Klein, 2020; Papastavridis, 2020).

The Geneva Declaration on Human Rights at Sea constitutes an example of such a holistic response to the protection of human rights at sea. The initiative was launched by Human Rights at Sea and is envisaged to become a soft law instrument that ‘brings together and details all applicable international law’ and ‘looks to explore its practical application throughout the maritime environment’. The declaration was brought up during the debate and Lord Teverson of Tregony enquired whether the UK Government would support the Declaration. The response on behalf of the UK Government was negative and it was stated that instead it does support the existing international frameworks citing the Maritime Labour Convention, 2006 and ILO 188, the Work in Fishing Convention, 2007. While the Government did not explain what might have been perfectly legitimate reasons for not supporting the Declaration, what is of concern is that in its response the UK Government conflates its labour and human rights obligations. As noted earlier, the persistence of the UK Government to translate any references to human rights at sea to labour standards is narrow-minded and risks being counterproductive as it leaves those not employed at sea without any legal protection. It is therefore reiterated that if the UK is to comply with its human rights obligations at sea, it will have to consider all its relevant obligations under international law and take appropriate steps to comply with them guaranteeing in this way the protection of all persons at sea.