173.Professor Haines told us that at any one time there are more than 30 million people at sea.226 Most (27 million) are fishers, while 1.6 million are employed in the global shipping industry (merchant seafarers). Other users of the sea include offshore oil and gas workers, migrants, refugees, asylum seekers, trafficking victims, and crew and passengers on board cruise ships.
174.UNCLOS includes some provisions relating to the conditions of people at sea and which have an impact on their human rights. Judge Anderson told us that these include Article 98 (the duty to render assistance to those in peril at sea), Article 73 (which limits coastal states’ ability to use imprisonment or other forms of corporal punishment for fishing offences) and Article 292 (which provides for the prompt release of arrested vessels and their crews against a bond).227 Andrew Murdoch added that it also includes prohibitions on the transport of slaves (Article 99).228
175.However, witnesses agreed there are significant gaps in the protection of human rights at sea, including in UNCLOS’s provisions, because it was developed “before and outside the influence of international human rights law”.229 Professor Papanicolopulu and colleagues wrote: “UNCLOS is drafted as if people did not exist at sea, but only vessels, resources and marine species.”230 Similarly, Professor Evans told us that one of UNCLOS’s “huge flaws” is that it has “more to say about protecting fish than about protecting people”.231
176.Witnesses were clear that international human rights law applies to those at sea as well as on land. Professor Klein explained that: “there was a point in time where some countries did not consider that their human rights obligations extended out to sea once they were beyond their land territory, but that position has been firmly quashed at this stage.”232
177.Some suggested that there might not be a need to add human rights provisions directly into UNCLOS, as its framework nature means that more specific regulation can be developed by competent organisations such as the IMO.233 Some treaties have attempted to improve the conditions of people at sea. These include the IMO’s International Convention on Safety of Life at Sea (SOLAS) and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), the International Convention on Maritime Search and Rescue (SAR) and the International Labour Organization’s Maritime Labour Convention (MLC).234 But these are not human rights treaties.
178.We heard that there is still some uncertainty about how human rights laws should apply to those at sea in practice. Professor Petrig told us this has come about because:
“Not only has the law of the sea been in large part human rights blind, but human rights law has until very recently suffered from serious sea blindness. As a result, human rights treaties that have been refined through many efforts by many actors are mainly for a land context and not for the sea.”235
She added that the lack of attention to human rights in the maritime context is reflected in the fact there is only one NGO that deals with the rights of people at sea (the UK-based charity Human Rights at Sea), compared to hundreds focused on human rights on land.236
179.As a result, there are “mismatches between the jurisdictional regimes for the law of the sea and the protection of human rights”.237 Jessica Schechinger, PhD Candidate in International Law and Graduate Teaching Assistant at the University of Glasgow’s School of Law, told us that the roles and obligations of states are not “clear cut”, particularly “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”.238 Professor Petrig added that the expression ‘wholly exceptional circumstances [reign at sea]’, used by the European Court of Human Rights,239 has been used to “justify a more lenient standard at sea compared with the one applied on land”. However, in her view “these wholly exceptional circumstances could in specific situations require that we adhere to a stricter standard than on land,” as the “hostile environment” at sea makes people “particularly vulnerable”.240
180.Human Rights at Sea told us that a core challenge is the “the fragmented nature of international law and the absence of a dedicated legal regime that unifies international human rights, refugee, labour, and law of the sea provisions”.241 Dr Kastner agreed, saying there is a need for the existing legal obligations to be clarified, “from the general applicability of international human rights law on the high seas to more specific issues, such as what the obligation to deliver those rescued to a ‘place of safety’ implies”.242
181.The Government has acknowledged that these complexities exist. In a follow-up letter to our evidence session, the Minister told us that the Government recognises there are “challenges around upholding human rights for those working away from home … in view of the jurisdictional complexities that exist at sea”.243 The Minister did not explain how the UK Government intends to address such jurisdictional complexities.
182.A further challenge is the enforcement of human rights law at sea. We heard that the issue is twofold. First, as discussed in paragraph 39, exclusive flag state jurisdiction, while intended to be a mechanism to provide for jurisdiction and accountability on the high seas, has instead led to a “jurisdictional vacuum”, in part due to the widespread use of flags of convenience.244 Human Rights at Sea said that the system of exclusive flag state jurisdiction and flags of convenience is “one of the single most significant barriers to transparency as to the scale of human, labour and social rights abuses at sea”.245
183.States should enact domestic legislation to ensure they can meet their obligations under UNCLOS and international human rights law. Human Rights at Sea told us this legislation must be “sufficient to empower the local courts to punish any individual or entity liable for any human rights violations.” But in practice, many states do not enact this legislation, or are unwilling or unable to police or enforce it, and shipowners can choose to register with flags of convenience.246
184.Professor Papanicolopulu and colleagues added that even where states have the appropriate domestic legislation in place, it is “often impossible” to enforce it, “given that a ship may navigate anywhere in the world, far away from the territory and the patrol vessels of its flag State.”247 Professor Guilfoyle agreed, saying that the oceans provide “a lot of space to hide relative to the enforcement capacity represented by the world’s navies and coastguards”, comparing it to “attempting to police a city like London or New York with half a dozen patrol vehicles.”248
185.Second, we heard that the way UNCLOS establishes jurisdiction in its zonal approach is at odds with that of international human rights law. Dr Galani told us that: “The fact that a person falls within the jurisdiction of a state for human rights purposes does not mean that that state can exercise jurisdiction under the law of the sea.”249 She gave the following example:
“If a Liberia-flagged vessel navigates through the territorial waters of the UK and there are victims of human trafficking onboard, the victims fall within the UK’s jurisdiction for human rights purposes but this does not mean that the UK has the right to interfere with the right of innocent passage in order to do something and protect the victims on board, unless the UK considers that human rights violations are a threat to the peace, security and good order of the coastal state.”250
Both Dr Galani and Professor Evans said that the primacy of the principles of freedom of navigation and exclusive flag state jurisdiction within UNCLOS, while important, hinder the applicability of human rights law at sea.251
186.There is also a lack of procedural remedies for individuals to invoke the protection of their rights. Professor Papanicolopulu and colleagues highlighted that UNCLOS’s dispute settlement mechanisms are only available to states. They added that “due to the nature of their very activity, victims of human rights abuses at sea may hardly be able to bring a case against their oppressors (individuals or State) before domestic or international courts, and when they managed to do so, this usually takes years and years.”252
187.Finally, we heard that states, including the UK, have a narrow view of human rights at sea as pertaining to labour protections, ignoring other contexts, such as recreation, military, or migration, in which human rights abuses occur.253 Human Rights at Sea told us that the UK Government holds a “flawed perception that the protection of human rights at sea concerns only its labour obligations”.254 Dr Galani agreed, highlighting a recent debate in the House of Lords,255 where the Government responses focused on compliance with the Maritime Labour Convention and the Work in Fishing Convention, with little reference to the broader context of human rights for all persons at sea.256
188.Further, witnesses questioned the effectiveness of the present regulation of labour conditions at sea. Professor Papanicolopulu and colleagues highlighted that, while “successful”, the Maritime Labour Convention “excludes fishers and people working on platforms, installations and other structures at sea” and that the Work in Fishing Convention has only been ratified by only 19 States and does not apply to small fishing vessels, which account for many of the vessels that provide fish for the British market. They said it is necessary to “draft, adopt and implement international treaties which will regulate working and living conditions for all categories of workers at sea”.257
189.A letter sent by the Minister following his evidence session further suggested that the Government has a narrow view of human rights at sea.258 The Minister referred largely to human rights concerns facing those working at sea, through reference to the Work in Fishing Convention and the Maritime Labour Convention. The letter does not clarify that human rights obligations apply to all people at sea in all contexts, or highlight any ways in which the Government is working to uphold these obligations.
190.UNCLOS has little to say about human rights. Nonetheless, it is clear that international human rights law applies to people at sea. But there are barriers to the application of human rights at sea in practice. The Government acknowledged the existence of these barriers, but did not say how it intended to address them.
191.We ask that in its response to this report, the Government confirms that it considers international human rights law to apply equally at sea as it does on land, and to commit to taking a clear and unequivocal position on this both domestically and internationally.
192.We urge the Government to acknowledge that human rights at sea include a wide range of rights, and not just those pertaining to labour conditions, important though these are. In its response to us, we ask that the Government sets out what it considers its obligations to be concerning human rights at sea, including with reference to human trafficking and modern slavery.
193.The principle of exclusive flag state jurisdiction and the issue of flags of convenience poses a challenge to the effective monitoring and enforcement of human rights at sea. We reiterate our request for the Government to provide more detail on its review of this issue.
194.Witnesses noted that some specific challenges have emerged or intensified since UNCLOS was drafted. These highlight the weaknesses in the application of international human rights law to seafarers under the current system.
195.We heard that mass migration by sea is now occurring on a scale not anticipated at the time UNCLOS was drafted.259 Those migrating by sea include irregular migrants (broadly defined as a person who lacks a legal right to be in their destination country), victims of modern slavery and human trafficking, refugees and asylum seekers.260 Human Rights at Sea told us there are currently around “82.4 million forcibly displaced persons”, and of those “26.4 million are refugees many of whom cross the Mediterranean Sea, the Pacific Ocean, the Andaman Sea, and the English Channel fleeing persecution and harm.”261
196.The methods of migration by sea have also changed. Professor Klein told us that migration by sea now frequently involves unseaworthy vessels, which means lives are increasingly at risk.262 Amnesty International UK said that: “Every year many people die on journeys that have not been authorised by States, are facilitated by people smugglers or controlled by human traffickers.”
197.Article 98 of UNCLOS obliges states to require ships flying their flags to “render assistance to any person found at sea in danger of being lost” and “proceed with all possible speed to the rescue of persons in distress”.263 States are also required to “promote the establishment, operation and maintenance of an adequate and effective search and rescue service”. Dr Kastner explained that these duties are further specified in the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention on Maritime Search and Rescue (SAR).264 These duties apply to vessels wherever they are at sea.
198.States also have obligations to provide asylum to those fleeing persecution and to not return refugees to a place where their life or liberty is at risk (known as ‘non-refoulement’). These principles are enshrined in international agreements including the 1951 UN Convention relating to the Status of Refugees, the 1950 European Convention on Human Rights and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings.265
199.Despite the increase in risky journeys made by sea, and the obligations on states outlined above, we heard that states tend to treat mass migration by sea as a maritime security and immigration issue. Professor Klein explained that under the Protocol against the Smuggling of Migrants by Land, Sea and Air states do have powers to “police migrant smuggling at sea”. However, she said that “just because an issue relates to maritime security does not mean that human rights obligations no longer apply” and highlighted that Article 19 of the Migrant Smuggling Protocol says that “states’ rights and duties remain subject to international human rights law and the refugee convention and its protocols.” This means that: “States are not supposed to pick and choose which legal regime they follow in this situation; they must accept that human rights obligations apply.”266
200.Nevertheless, we heard that in practice, obligations such as the duty to render assistance are often side-lined.267 For example, Professors Barnes and Kirk explained that while states have “no obligation to allow vessels carrying irregular migrants into their ports”, they do have a duty to receive vessels that are in distress, and as such “states may deliberately avoid providing immediate and vital assistance to persons in distress because this may incur more costly duties to receive persons in distress.”268 Professor Papanicolopulu and colleagues agreed, saying there is sometimes an “active disregard for the duty to save lives at sea”.269
201.Amnesty International UK were particularly concerned by provisions in the Nationality and Borders Bill, currently before Parliament, which “empower officials to ‘stop, board, divert and detain’ vessels used in navigation”,270 and by recent statements made by the Home Secretary that suggest the UK will “seek to turnaround and push back boats at sea”.271 They argued that ‘turnaround’ policies are not compatible with Article 98 and “duties to promote cooperation between states” and as many of the vessels in question are “overcrowded, unstable or otherwise unsuitable”, nor are they compatible with “obligations to people in immediate need of being disembarked safely”. They concluded that: “Ministers’ current or intended immigration policy … is liable to offend international law, encourage wider disrespect for that law and the value of human life that underpins it.”272
202.Other parliamentary committees have expressed similar concerns. In their second Report on the Nationality and Borders Bill, the Joint Committee on Human Rights stated that:
“The Government’s legislation and policy intentions with regard to pushbacks at sea are likely to increase the danger of these crossings whilst failing to deter those who make the journey and people smugglers who profit from them. We do not see how the Government’s proposals as they stand are consistent with our human rights obligations.”273
Further, in a letter to the Home Secretary in December 2021 the Justice and Home Affairs Committee questioned the ‘turnaround’ policy’s compatibility with Article 98, saying that with consideration to “the fragility of the vessels concerned; weather and sea conditions; the vulnerability of the passengers; overloading; the absence in most instances of anyone with experience in charge of the vessel; and the large number of large vessels using this busy shipping route”, it is “hard to imagine a situation where boats carrying migrants are not found to be ‘in danger at sea’”.274
203.The Minister told us that the UK takes its obligations under Article 98 of UNCLOS “very seriously”. He said that: “Whatever solutions, proposals and policies will be brought forward in the next couple of weeks … must not be at the expense of our commitments internationally” and that “there is no suggestion from anyone that those obligations are not of paramount importance.”275 Similarly, on January 20 2022, Baroness Goldie, Minister of State at the Ministry of Defence, told the House of Lords that “whatever the MoD does in its primacy of operational control, discharge of that duty will absolutely be done in compliance with international laws and the United Nations Convention on the Law of the Sea.”276 On 17 January 2022 it was reported that the Royal Navy is set to take charge of operations over the English Channel, providing support to the Border Force. Details about the exact involvement of the Royal Navy have not been made public at the time of writing of this report.277
204.Migration at sea is increasingly undertaken by vulnerable groups, including refugees and asylum seekers, in unseaworthy vessels which frequently need emergency assistance. Under UNCLOS states have a duty to render assistance to persons in distress at sea, but this obligation is increasingly side-lined by security and immigration policies.
205.Despite the Minister’s assurances, we are not convinced that provisions relating to maritime migration and ‘turnaround tactics’ in the Nationality and Borders Bill are compliant with the UK’s duties under UNCLOS, in particular Article 98. We therefore ask that in its response to this report, the Government provides us with a full assessment of the compatibility of the provisions in the Nationality and Borders Bill dealing with so-called forced turnarounds with the UK’s international responsibilities under Article 98 of UNCLOS.
206.Witnesses told us that those working at sea are increasingly subject to human rights abuses. Professor Papanicolopulu and colleagues explained that the majority of these workers are fishers, often migrant workers, and that they are “often subject to the most terrible working conditions, in some cases amounting to forced labour, slavery and torture”.278 The second largest group working at sea are merchant seafarers. Human Rights at Sea told us that many merchant seafarers are subject to “sub-standard working conditions” and made to work “excessively under extended contracts beyond the 11-month legislative maximum”.279 Professor Papanicolopulu and colleagues wrote that fishing and shipping “remain the two most dangerous occupations worldwide” and that “fatal incidents are commonplace even in the UK” at rates much higher than other occupations.280
207.These issues are compounded by illegal, unreported and unregulated (IUU) fishing, which is estimated to account for around 30 per cent of catches.281 Dr Caddell explained the link between IUU and human rights abuses:
“Behaviourally, it is a pretty obvious picture. If you know that somebody is getting this illegal windfall, more boats will follow and it erodes trust in the fishery. Fishing vessels that have very little interest in the requirements and niceties of getting a licence probably have very little interest in the niceties and requirements of labour and human rights elements”.282
208.IUU fishing is in turn facilitated by flags of convenience and the subsequent lack of monitoring and enforcement on the high seas. The Environmental Justice Foundation told us that a 2018 study found that “70 per cent of vessels involved in IUU fishing were, or had been, flagged in a ‘tax haven’ jurisdiction”.283 Greenpeace UK told us that the lack of monitoring and enforcement, coupled with overfishing, forces vessels to “fish further offshore and for longer periods of time” and “increase[s] the possibility of exploitation of migrant fishers”.284
209.We heard that these abuses have been facilitated by the practice of ‘bunkering’—the refuelling of vessels at sea. Professor Klein told us that bunkering was “in its nascence at the time UNCLOS was drafted”, but that now “vessels can stay on the high seas sometimes for years at a time”.285 She said that this has led to the “long term detention of fishers onboard ships”.286 Bunkering also limits the effectiveness of port state controls, which are increasingly used to try to address IUU fishing.287
210.The rights of labourers at sea are addressed by international agreements including the Maritime Labour Convention and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, developed under the International Labour Organization (ILO) and IMO respectively. Nautilus International told us that in recent years there has been “excellent cooperation” between the IMO and the ILO, including the development of the Joint IMO/ILO Guidelines on the Fair Treatment of Seafarers in the Event of a Maritime Accident.288
211.But we heard that, once again, the widespread use of flags of convenience means that such agreements and guidelines are difficult to enforce in practice. Professor Evans said: “At the end of the day, if a vessel is registered in a state that is not interested in achieving compliance with human rights commitments, people on board those vessels will be extremely vulnerable.”289
212.Likewise, Nautilus International highlighted the problem of flag states failing to establish a genuine link with vessels using their flag, as discussed in Chapter 3. This means that states are “unable to exercise effective jurisdiction and control” when there are human rights abuses on board those vessels. They thought that the lack of definition of what constitutes a genuine link under Article 92 of UNCLOS is a “serious weakness”, as it allows shipowners to register with states “with which they have no or little connection, to avoid taxes, social security payments” and where seafarers may not be able to access employment rights. Nautilus International concluded:
“The overall result for seafarers is that they: are not subject to the human rights legislation or the general employment rights of the flag State; they gain nothing by way of social security from the flag State; when they are abandoned in a foreign country, or are subject to unjust criminalisation, the flag State has no interest in coming to their aid.”290
213.Andrew Murdoch acknowledged that there are “difficult parts of the sector to reach, particularly the smaller vessels, to ensure compliance”. However, he told us that the Maritime Labour Convention provides an “inspection framework” which “allows flag and port states to identify particular areas of concern, particularly labour exploitation and modern slavery, which can then be referred to the relevant authorities”, which for the UK is the Maritime Coastguard Agency. He added that the Government “recognises … the difficulty of upholding some of those rights and standards”, particularly for seafarers “working far from home and beyond visibility”, but that the UK is involved in initiatives to combat these issues, including the Neptune Declaration on Seafarer Wellbeing and Crew Change.291
214.Forced labour and excessive working conditions are increasing concerns for those working at sea in the fishing and shipping industries. While there are international agreements for the protection of labourers’ human rights, the flag state system again stymies their enforcement and realisation in practice.
215.We heard several examples of situations where the victims of physical or sexual crimes at sea had difficulty accessing justice. This is a problem for passengers on cruise ships. We heard that jurisdictional issues and the use of flags of convenience are factors which compound the problem. Human Rights at Sea told us that:
“Crimes committed on board cruise ships, including sexual assaults, are rarely investigated by competent authorities and, frequently occur in situations that are jurisdictionally confusing. Many victims are denied justice in the wake of the abuse to which they have been subjected.”292
216.Professor Haines gave the example of an alleged sexual assault of a British teenager by an Italian man on board a cruise ship in 2019. The ship was registered in Panama, a prominent flag of convenience, and was sailing outside of territorial waters in the Mediterranean.293 He told us that the crime was investigated by the Spanish authorities and put before a Spanish court, but that they “dismissed the case because it did not have jurisdiction.” There has been “no effective remedy” for the victim, because Panama—though in possession of flag state jurisdiction over the vessel—” will not do anything about it” and “is not in a position to do anything about it”. Professor Haines told us he was not aware that the Italian, British or Panamanian Governments have done “anything at all to produce a remedy” for the victim.294
217.Jessica Schechinger told us that such incidents are “unfortunately, not uncommon” and that the “lack of effective remedy is a problem in several other contexts as well”, including crimes committed by privately contracted armed security personnel (PCASP).295 She explained that using PCASP to protect against piracy has become “accepted practice”, and they are “extremely effective in deterring piratical acts.” However, there have been incidents where (alleged) pirates and fishers mistaken for pirates have been harmed or killed by PCASP, including a 2021 incident where it is estimated 12 people were killed.
218.Jessica Schechinger told us that while several states “could have exercised jurisdiction” with regard to such incidents, they have not been investigated and “no one has been held accountable” for any known incidents. Again, we heard that the obligations of states when human rights abuses occur at sea are “not … clear cut”, particularly “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.” She highlighted that the use of PCASP is not regulated by UNCLOS and has not been sufficiently regulated by the IMO. She thought that: “Addressing the regulation of PCASP within the IMO would remove (some of) the legal uncertainties and could clarify the rights and obligations of states under international law, in case PCASP related incidents occur.”296
219.Victims of human rights abuses at sea, including victims of physical and sexual crimes, do not have sufficient access to timely or effective justice. Their situation is exacerbated by complex questions concerning legal jurisdiction and the flag state’s responsibility to investigate and prosecute human rights abuses committed at sea. The obligations of third states to exercise jurisdiction over these abuses and crimes are also not clear: states appear to use the principle of exclusive flag state jurisdiction to avoid intervening on behalf of victims, even if the abuse takes place within their maritime jurisdiction. As a result, victims of human rights abuses at sea are denied access to an effective remedy.
220.The increased use of privately contracted armed security personnel has been effective at deterring piracy, but there have been examples of these contractors harming and killing fishers and alleged pirates. Privately contracted armed security personnel are poorly regulated, and individuals are rarely held accountable for such crimes.
221.We heard a range of possible ways in which the protection of human rights at sea could be strengthened. First, witnesses including Nautilus International advocated for the strengthening of the requirement for a genuine link between a ship and flag state in UNCLOS.297 Human Rights at Sea agreed, saying that “more stringent regulation for the open registries that would hold the flag state accountable for human rights abuses on board vessels flying its flag must be examined and implemented at IMO level.”298
222.Second, port state measures could be strengthened to bring human rights abuses that occur at sea under the jurisdiction of states where the ship docks. Professor Klein told us that port state controls are already being used to address marine pollution, and that the Food and Agriculture Organization’s 2009 Agreement on Port State Measures299 is similarly trying to address IUU fishing. But port state controls have yet to be extended to human rights. When discussing human rights Andrew Murdoch told us that port state control is an “important element”, and the UK is “strongly supportive” of the measures that have been advanced so far.300
223.However, Professor Papanicolopulu and colleagues noted that “wrongdoing vessels may easily evade port state controls”, by using ‘ports of convenience’ or, for fishing vessels, through the practice of bunkering.301 While they praised the 2009 Port State Measures Agreement for its “recognition of port states’ potential to deter and eliminate IUU fishing” they said that it “does not give port states the right and obligation to adopt enforcement measures such as investigations, judicial proceedings and sanctions, which rest with flag States’ powers”. Further, as few states have ratified the agreement, “complementary action is … needed”.302
224.Professor Guilfoyle suggested that more states could follow the example of the US State Department, which produces an annual ‘Trafficking in Persons’ report. He told us this has become a “significant tool of soft power in US diplomacy” and is effective as “no state wants to be identified as having a trafficking problem.” He suggested a similar initiative for human rights at sea, including sanctions for “renegade actions”, and thought that the Magnitsky Act legislation could be used for that purpose.
225.Third, states, including the UK, should ensure that their domestic legislation reflects their international human rights obligations.303 The concerns raised by Amnesty International UK about the Nationality and Borders Bill suggest that the UK Government needs to do more to ensure national security and immigration policies do not side-line human rights obligations.304
226.Fourth, some witnesses advocated for mechanisms for individuals to settle disputes against non-state actors, such as businesses and shipowners. Human Rights at Sea explained the issues with the current system:
“At the UN level, most human rights treaties provide for monitoring and enforcement through established committees. These committees can hear individual complaints against a state party. The issue with these quasi-judicial fora is that they require the consent of the state to hear individual communications and that their admissibility criteria require that the applicant exhausts domestic remedies available, that are often non-existent or non-effective. The costs to the applicants are high and it can take up from eight to ten years to be awarded compensation for damages.”305
They argued for “alternative routes to remedy that are more accessible to the victim, faster, and overall victim-sensitive and oriented”. Professor Petrig agreed, suggesting that a “private justice system” of arbitration could be used.306
227.Finally, witnesses were clear that a unified approach is needed that draws all of these solutions together. Professor Evans told us that we need to look beyond “piecemeal solutions” to human rights issues at sea and instead promote a “holistic” understanding of how human rights obligations extend to sea.307 Human Rights at Sea agreed, saying that there is an immediate need for a “complementary and unified application of the various self-contained regimes concerning human rights at sea, including UNCLOS, human rights law, refugee law and labour law standards.”308
228.In 2019, Human Rights at Sea itself developed a soft-law instrument, the Geneva Declaration on Human Rights at Sea, which recalls existing legal obligations and provides guidance for coastal, flag and other states on how to protect, respect and ensure human rights at sea” and “can supplement UNCLOS and fill in the human rights at sea gap, without opening the Convention to re-negotiation.” They urged the UK Government to endorse the framework and become a “global leader” in championing it.309
229.We also heard that UNCLOS should be seen as part of the solution, not the problem, and that it can provide a starting point from which further developments can take place .310 Dr Galani reminded us that “UNCLOS is a living treaty” and that “some of its provisions can be interpreted in the light of the new challenges and problems that we face.” She explained that the International Tribunal for the Law of the Sea, for example, has argued that UNCLOS cannot be applied in a legal vacuum and due consideration has to be given to the protection of human rights, and that “through its jurisprudence, it has strived to protect the rights of persons arrested at sea, and has interpreted some of the provisions of UNCLOS that have to do with the arrest, prompt release and procedural rights of crews arrested at sea in a way that protects their rights.” But she acknowledged that “we will not be able to rely on UNCLOS to deal with human rights violations at sea”, and so other mechanisms also need development.311
230.One forum for the development of a unified approach to human rights at sea could be the UN Human Rights Council.312 Professor Petrig told us that at present: “Monitoring bodies, treaty bodies and the Human Rights Council primarily focus their attention on states’ human rights performance on dry land, and the comprehensive and systematic scrutiny of human rights abuses at sea does not really take place.” Human Rights at Sea also said that the Government should establish a mandate with the UK’s own human rights committee, the Equality and Human Rights Commission, to “look exclusively at compliance with human rights at sea”.313
231.There are a range of mechanisms the Government should investigate for addressing human rights abuses at sea, including port state controls, sanctions, and private arbitration systems. The Government must also ensure that its own domestic legislation fully reflects its obligations under international human rights law, in particular, the Nationality and Borders Bill.
232.Piecemeal solutions will not be sufficient. We call on the Government to work with likeminded partners to advance a unified approach to human rights at sea. This will need to draw together practical solutions to challenges including mass migration, forced labour, physical and sexual crimes, and crimes committed by privately contracted armed security personnel, and must lead to the creation of new mechanisms to address the issue.
230 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033)
231 Q 13 (Professor Sir Malcolm Evans). See also written evidence from Human Rights at Sea (UNC0016).
233 Written evidence from Professor Robin Churchill and Dr Jacques Hartmann (UNC0011). See also written evidence from Human Rights at Sea (UNC0016).
236 Ibid.
239 See for example the Rigopoulos v. Spain case (application number 37388/97, ECHR, 12 January 1999) and the Medvedyev and others v. France case (application number 3394/03, ECHR, 29 March 2010). See more: Anna Petrig, Human Rights and Law Enforcement at Sea: Arrest, Detention and Transfer of Piracy Suspects, (Leiden, Brill Nijhoff, 2014) pp 271–274 (The Right to ‘Prompt’ Judicial Control).
243 Letter from Lord Goldsmith of Richmond Park to the Chair of the International Relations and Defence Committee (11 January 2022): https://committees.parliament.uk/publications/8554/documents/86402/default/
246 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033). See also Q 82 (Professor Anna Petrig) and Q 27 (Professor Natalie Klein).
247 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033)
252 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033)
254 Ibid.
255 HL Deb, 22 June 2021, cols 130–133
257 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033)
258 Letter from Lord Goldsmith of Richmond Park to the Chair of the International Relations and Defence Committee (11 January 2022): https://committees.parliament.uk/publications/8554/ documents/86402/default/
261 Ibid.
263 United Nations Convention on the Law of the Sea (UNCLOS), Article 98: https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm [accessed 7 February 2022]
264 Written evidence from Dr Philipp Kastner (UNC0029). See also written evidence from Amnesty International UK (UNC0019).
267 Ibid.
269 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033). See also written evidence from Dr Philipp Kastner (UNC0029).
270 Schedule 6 (Maritime Enforcement) of the Nationality and Borders Bill amends Part 3A of the Immigration Act 1971 (maritime enforcement). Where a “relevant officer has reasonable grounds to suspect that— (a) a relevant offence is being, or has been, committed on the ship, or (b) the ship is otherwise being used in connection with the commission of a relevant offence”, it gives the relevant officer the power to “(a) stop the ship; (b) board the ship; (c) require the ship to be taken to any place (on land or on water) in the United Kingdom or elsewhere and detained there; (d) require the ship to leave United Kingdom waters”. Nationality and Borders Bill, Schedule 6 [Bill 82 (2011–22)]
272 Ibid.
273 Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill (Part 3) - Immigration offences and enforcement (Ninth Report, Session 2021–22, HC 885, HL Paper 112)
274 Letter from the Justice and Home Affairs Committee to Rt Hon Priti Patel MP, Home Secretary, (8 December 2021): https://committees.parliament.uk/publications/8134/documents/83394/default/
277 BBC News, ‘Channel migrants: Armed forces set to take over English Channel operations’, (17 January 2022): https://www.bbc.co.uk/news/uk-60021252 [accessed 7 February 2022]
278 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033). See also written evidence from Human Rights at Sea (UNC0016).
280 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033)
282 Ibid.
286 Ibid.
287 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033)
294 Ibid.
296 Ibid.
299 Food and Agriculture Organization of the United Nations, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing: Revised Edition: https://www.fao.org/port-state-measures/resources/detail/en/c/1111616/ [accessed 7 February 2022]
301 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033). See also Q 82 (Professor Douglas Guilfoyle).
302 Written evidence from Professor Irini Papanicolopulu, Andrea Longo and Daniele Mandrioli (UNC0033)
309 Ibid.