UK UNCLOS Inquiry: Is UNCLOS Fit for Protecting Human Rights at Sea? A Comment

One of the most contemporary challenges international law is facing today is protecting, monitoring, and enforcing human rights at sea. A recently launched House of Lords Inquiry in the United Kingdom examining the UNCLOS applicability in the 21^st century is asking amongst other questions, how to address the contemporary challenge of monitoring and enforcing human rights law at sea.

It can be said that human rights at sea are a relatively recent narrative in the long history of UNCLOS. Academics only started writing explicitly on the topic ten years ago (indicative scholarship includes that of Treves 2010, Petrig & Geiss 2014 Evans & Galani 2014, and Papanicolopulu 2018) and there is only one civil society organisation explicitly mandated to raise awareness of human rights abuses at sea. Recently, human rights at sea have made it as a distinct topic of maritime and human rights related policy agendas at UN, regional and national levels. The UK House of Lords Inquiry into the future of UNCLOS and its applicability in the 21st century launched by the Lords Select Committee on International Relations and Defence is one such example.

A human rights at sea gap

During the oral evidence stage, it was well acknowledged by the majority of the expert witnesses invited by the Lords that UNCLOS does not explicitly and comprehensively deal with human rights protections at sea (Oral evidence of Haines, Klein, Petrig, Evans and Galani). A dissenting opinion was that of the UK government which remains of the view that UNCLOS does ‘address human rights issues in some discreet areas’, that have also have been further supplemented by instruments such as the 2006 Maritime Labour Convention and the 2007 ILO Work in Fishing Convention as well as IMO Guidelines.

As it has been argued on the blog before, the UK’s position reflects a narrow and somewhat flawed understanding of human rights obligations at sea that still incorrectly equates human rights with minimum labour and welfare standards on board UK-flagged commercial shipping and fishing vessels. This flawed perception has severe consequences for the human rights of people who found themselves at sea around the world and in the UK’s territorial waters and who are not always at sea for employment purposes, (if they have an employment contract in the first place), but also for purposes of recreation, military, or in search of asylum.

Throughout the oral evidence stage, experts have sought to explain to the Committee that the protection of human rights at sea cannot rest on the limited maritime jurisdictional competencies established under UNCLOS. In other words, despite its detailed regulation on maritime delimitation and states’ jurisdictional competencies within the various maritime zones (UNCLOS Part I -VII), as well as general guidance on how to use the oceans’ natural resources in accordance with the principle of the common heritage of mankind (Part XI, Article 136) UNCLOS says little, if anything, on the application of and compliance with human rights at sea.

In fact, one could argue that UNCLOS alone can hinder the monitoring and enforcement of human rights because of the principle of the exclusive jurisdiction of the flag state (Article 92 (1)), a fortiori in cases where the flag state is an open registry or flag of convenience.  Essentially, under UNCLOS, flag states – namely administration entities licencing the flag of the coastal state-, are legally responsible to ensure the effective application and compliance with human rights on board their registered vessels, wherever they might be.  In the case of flags of convenience, these are often protected by the corporate veil from commercial accountability, as an effective licensee of the coastal state. The challenge of effective monitoring and enforcement of human rights at sea is further compounded by conflicting legal obligations between the commercial flag administration and the shipowner, ship manager, insurer and legal contractual requirements for strict confidentiality. This system is one of the single most significant barriers to transparency as to the scale of human, labour and social rights abuses at sea occurring on the high seas.

This is not to say that UNCLOS has failed the world, or that it has become irrelevant for the 21^st century. On the contrary, UNCLOS should be better understood as a ‘framework convention’, one of many in international law, setting the general rules and principles surrounding the use of the seas and the oceans. It must also be seen as a product of its time, an instrument that could not have foreseen most of the contemporary human rights challenges that arise in today’s maritime environment, and which require careful attention. One of the challenges that require the attention of international lawyers as aptly summarised by Prof. Petrig in her oral evidence is the serious ‘sea-blindness’ of international human rights law’.

Fighting the law’s sea blindness

The way to fight the sea-blindness of international human rights law is not necessarily by creating new law, but rather to take a holistic approach when conceptualising and dealing within the context of human rights at sea. This holistic approach could start by broadening the understanding of human rights at sea to go beyond seafarers, and fishers’ rights to include indigenous fishers, children at sea, refugees and migrants at sea, victims of trafficking or forced labour at sea, to the victims of sexual assault on board cruise ships. A second step is to refine the application of human rights law at sea by clarifying the scope of human rights obligations at sea, the duty bearers (flag state, port state, coastal state), often acting through private actors, and when interpreting the law to take into account the spatial dimension of the seas and the oceans. Lastly, and as Papanicolopulu proposes the protection of human rights at sea can be enhanced by unifying the existing various self-contained regimes concerning the protection of people at sea, which spread across UNCLOS, human rights law, refugee law and labour law standards into one single legal regime.

The Inquiry on UNCLOS has now closed and a Report will be published by the Lords some time in 2022 answering these timely and pressing questions in light of the oral and written evidence received. Meanwhile, the UK is soon to pass legislation that goes squarely against the concept of respecting human rights at sea. The proposed Nationality and Borders Bill will seek to endanger life at sea by allowing the Border Force to intercept and push backs migrant boats violating the UK’s human rights obligations, it will criminalise civil society search and rescue organisations performing the duty to rescue people in distress at sea (analysed here) and penalise those few who will survive the Channel crossing.

Human rights at sea are to become more and more a compelling subject of academic and policy research and hopefully judicial scrutiny. There are still questions to be posed and answered.