Opinion
The UK Government has responded to the International Defence and Relations Committee Inquiry into the UN Convention on the Law of the Sea (UNCLOS) 1982 being 'Fit for Purpose in the 21stCentury' with what can only be described as a weak response in respect to human rights protections for people at sea despite extensive and evidenced recommendations to do so by the UK Parliament's Upper House.
The Inquiry looked at numerous issues, including technological developments, maritime security, human element engagement and state enforcement requirements in respect of the existing position of the 1982 Law of the Sea during both live and written evidence submissions in November and December 2021. It compared the existing Convention coverage with emerging trends of a 21stCentury global society, itself benefiting from the maritime environment including related use of global supply chains at sea and which included the need for addressing human and labour rights at sea (Chapter 5).
House of Lords Requests to the UK Government
The House of Lords specifically highlighted several matters pertaining to addressing human rights at sea including, but not limited to:
"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."
UK Government Failings
Despite expert recommendations to explicitly look at human rights protections at sea, extensively evidenced in detailed national and international submissions, the UK Government has failed to comprehensively detail human rights issues which affect global supply chains for all goods transported by sea, affect exploited marine resources including flag state impunity, criminality and illegal, unregulated, and unreported (IUU) fishing at sea, affect mixed migration and affect slavery and trafficking at sea.
Turn-backs of migrant boats in The English Channel remains a significant point of policy and legal contention, while reliance on referencing the ILO 188 Work in Fishing Convention is a distracting point noting the limited numbers of state ratifications and global uptake.
Additionally, the response failed to substantially acknowledge and indeed agree as to the need for better protections of individual fundamental rights for all those persons who live, work and transit by sea, other than within UK territorial waters.
By way of example, the Inquiry's report stated: "Witnesses were clear that international human rights law applies to those at sea as well as on land. Professor Klein (Australia) 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.”
The UK Government further failed to support the position that 'human rights apply at sea, as they do on land'. Instead, it weakly commented that: "[Response to 219] The Government accepts that internationally the applicable jurisdiction for victims of human rights abuses at sea may be difficult to ascertain. There is scope to clarify where victims may bring a complaint or case in the UK."
Applicable contextual evidence from Prof. Petrig (Switzerland) stated: "“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.” This point was seemingly ignored.
Slow Steps Forward
It is noteworthy that the first UK Parliamentary debate on the subject on 22 June 2021 was met with a poor response from the Government reflected in a lack of apparent understanding of the human rights subject matter and missing the point on wider fundamental human rights applications for all persons at sea under established international law.
On a slightly positive note, the response did highlight that: "The Government agrees that violations of UNCLOS are undermining of the wider rules based international system. The UK consistently challenges, publicly and privately, actions that we consider to be incompatible with UNCLOS."
It also acknowledged that the European Convention on Human Rights (ECHR) applied in UK territorial waters, though so do many other Conventions.
HRAS Comment
The UK Government can and must do better on the issue of fundamental protections for all persons at sea if it is to aspire to its proposed thought leadership role and fulfil its own mandate for the 2050 Maritime vision.
The current political positioning towards the eminent recommendations by the UK House of Lords Inquiry deftly 'kicks-the-can' down the road and conveniently stalls to avoid tackling the very serious issues of reinforcing the existing rule of law and international rules-based environment at sea explicitly for human rights.
And despite explicit Parliamentary reference to the Geneva Declaration on Human Rights at Sea, there was silence on the validity of that extensive soft law development work.
This weak response sends a clear message to those who wish to write down or even write out human rights protections at sea that a failure to address such key matters raised in a national Parliament effectively means that impunity and abuses at sea can at best be conveniently ignored, at worst, condoned.
It is therefore time to put 'human rights at sea' firmly on the UK political agenda to better participate and support the global narrative for protecting the fundamental human rights of all persons reliant on maritime access and ocean resources, including the extensive use of logistical routes crossing the world's oceans and seas, while concurrently upholding and reinforcing the international rules-based system in the maritime environment.
The House of Lords Inquiry Report can be found here: https://committees.parliament.uk/publications/9005/documents/159002/default/
Download the UK Government response below.