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Arbitration Proposed as Remedy for Human Rights Abuses at Sea

Credit: HRAS

By The Maritime Executive 03-24-2020 05:03:25

March 24 is United Nations International Day for the Right to The Truth Concerning Gross Human Rights Violations and for the Dignity of Victims. To coincide with the day, the U.K.-based charity Human Rights at Sea, in partnership with global law firm Shearman & Sterling LLP, has launched a legal project to facilitate the resolution of disputes concerning human rights abuses at sea using international arbitration.

The project’s principal aim is to provide victims of human rights abuses at sea with access to an effective remedy and to combat impunity for the perpetrators of such abuses. This project follows from Human Rights at Sea’s broader efforts to globally promote and develop more effective human rights protection for seafarers, fishers, migrants, refugees and others working, or living in the littoral and maritime space.

As described in Human Rights at Sea’s founding documents and most recently asserted in the first version of the Geneva Declaration on Human Rights at Sea, the philosophy of human rights at sea rests on four fundamental principles: that human rights apply at sea to exactly the same degree and extent that they do on land; that all persons at sea, without any distinction, enjoy human rights; that there are no maritime-specific rules allowing derogation from human rights standards; and that all human rights established under treaty and customary international law must be respected at sea.

At present, these fundamental principles are not being adequately respected, complied with or enforced, states the charity.  There remains significant evidence of widespread and systematic human rights abuses at sea, including slavery, sex trafficking, sexual assault, abandonment and deprivation of basic labor rights. This is despite the existence of a well-established body of international human rights law and is especially true of human rights violations occurring on the high seas, where the policing and enforcement of human rights violations is more difficult.

The Concept

The project is driven by the concept that an arbitration-based mechanism of redress for human rights abuses could significantly improve human rights protection in the maritime space, notably, by providing: (i) a neutral and visible forum in which human rights issues can be resolved; (ii) an efficient procedure that is both expedient and financially accessible to victims; (iii) an adjudicative process that is highly specialized and tailored to the sensitivities of human rights issues as well as to the particularities of the maritime space; and (iv) binding arbitral awards that would be enforceable internationally.

The Mechanism

The arbitration mechanism under development is designed principally to improve the situation of victims of human rights abuses at sea. The goal is to provide victims with an additional mechanism of redress, alongside those that already exist (such as national or regional courts), in which they can choose to bring their human rights claims.

This mechanism would address claims arising from existing and established international law and principles for the protection of human rights. It would not require any new substantive human rights protections, nor would any new substantive law be necessary.

At the core of this arbitration-based mechanism would be a network of stakeholders active or directly interested in maritime commerce, including flag States, port and coastal States and businesses. A critical mass of players representing some or all of these interests will be invited to provide open offers of consent to arbitrate human rights disputes. Such offers would be capable of acceptance by any party alleging a human rights abuse by the offeror, through the aggrieved party’s filing of an arbitration claim.

Proceedings

The ensuing arbitration proceedings would be administered by a dedicated “human rights at sea” arbitration institution, which would, among other things: promulgate a set of procedural rules specifically tailored for human rights disputes; maintain a roster of specially qualified human rights arbitrators; and oversee the constitution of arbitral tribunals (including by resolving any challenges to the appointment of arbitrators).

The White Paper

Human Rights at Sea and Shearman & Sterling LLP have prepared a White Paper as a first phase of the project. The concept will be further developed in subsequent stages, including through the circulation of draft model offers of consent, draft model arbitration agreements and draft arbitration rules.

The White Paper is available here.

The International Day for the Right to the Truth Concerning Gross Human Rights Violations and for the Dignity of Victims 

This annual observance pays tribute to the memory of Monsignor Óscar Arnulfo Romero, who was murdered on March 24, 1980. Romero was actively engaged in denouncing violations of the human rights of the most vulnerable individuals in El Salvador.

The purpose of the Day is to:

• Honor the memory of victims of gross and systematic human rights violations and promote the importance of the right to truth and justice;
• Pay tribute to those who have devoted their lives to, and lost their lives in, the struggle to promote and protect human rights for all;
• Recognize, in particular, the important work and values of Romero in defending the principles of protecting lives, promoting human dignity and opposition to all forms of violence.