[Op-Ed] Human Rights Case Has Maritime Implications

European court

By MarEx 2015-02-23 22:30:57

Op-Ed by Ben Hardman and David Hammond

Grave breaches of human rights at sea on British-flagged vessels are hopefully relatively few and far between. Even so, the U.K. is obligated to have measures in place to prevent such abuses and, when they do occur, to investigate them.

International law also imposes positive obligations on States to act when they have effective control over a location. Indeed, it is fair to say that the precise extent of the obligations on a State is constantly evolving, including those in the maritime environment.

Last May the European Court of Human Rights (ECtHR) handed down a judgment in the case of Gray v. Germany that could mark a significant step in this evolution. The case involved medical negligence, but its influence may have a much broader scope and may well reach into the maritime industry, including the maritime security industry.

The implications of the Gray case include a potential obligation on U.K. authorities to investigate any excessive use of force or improper treatment of individuals by maritime security providers on board a commercial vessel if the alleged perpetrators later return to and reside in the U.K. Investigatory obligations could also arise from alleged human rights abuses in human trafficking cases and even from the rescuing of refugees and migrants in distress by commercial vessels.

The Case

A German doctor practicing in the U.K. caused the death of an English patient through his professional negligence. Following the death, the doctor returned to Germany. German and U.K. authorities commenced independent investigatory proceedings. Germany subsequently refused to extradite the doctor in order to face criminal proceedings in the U.K. and instead prosecuted him for causing the death of the English patient. 

The case before the ECtHR considered the claim by the applicants (the family of the deceased) that Germany’s actions fell short of the requirements of Article 2 of the European Convention on Human Rights (ECHR).

Article 2, concerning the right to life, creates procedural obligations. A State must put in place an effective judicial system and properly investigate an unintended death. In this case, it was decided by the ECtHR that the German investigation and subsequent conviction had satisfied the requirements of Article 2. Accordingly, the applicants’ claim failed.

The key point, however, is that it appears the German authorities were under an obligation to investigate and prosecute the death simply because the negligent doctor subsequently returned to Germany. This was despite the fact that the death of the patient did not take place in Germany nor occur in an area within Germany’s control or with German State involvement.

Surprisingly, neither Germany nor the ECtHR raised the specific point of whether or not Germany was actually bound by an explicit obligation to investigate the incident. Germany argued that the applicants had instead failed to exhaust domestic remedies as required by Article 35 and that Article 2 had not been breached as Germany had, in any case, carried out an investigation.


So what are the potential implications of this decision for the maritime industry?

First, the obligation of a State to investigate alleged breaches of human rights should extend beyond unintended deaths, to allegations of torture, slavery, trafficking and forced labor in the maritime environment.

Second, there is no requirement for involvement or culpability on the part of the State Party to the ECHR.

Third, if the alleged perpetrators of a breach come within the jurisdiction of the courts of a State Party, the breaches should be investigated by that State regardless of where they occurred.

So, for example, excessive use of force or improper treatment of individuals temporarily deprived of their liberty by maritime security providers on board a commercial vessel in either the Gulf of Aden or worldwide should be investigated by the U.K. authorities if the alleged perpetrators later return to and reside in the U.K.

Further, shipowners whose vessels are used in trafficking or use trafficked crew could find themselves being investigated if they are later living or working in the territory of a State Party. The same could apply with respect to any of the individuals involved in the organized network of trafficking cases and even may extend to the alleged abuse of human rights by crew on board commercial vessels involved in the rescue of refugees and migrants in distress.

To put Gray in context, one should review another landmark human rights case, that of Medvedyev and Others v. France, which addresses the application of the ECHR to law enforcement operations at sea. The Medvedyev case concerned a Cambodian-registered vessel, Winner, suspected of drug smuggling. 

The vessel was intercepted and boarded in the waters off Cape Verde by French Special Forces and subsequently towed under escort to France. In the course of the boarding operation, the Special Forces team was “obliged to use their weapons to defend themselves,” and for the duration of the journey to France the crew was “confined to their quarters under military guard.” It was therefore held that France had “exercised full and exclusive control over Winner and its crew and, accordingly, the crew was effectively within French jurisdiction.

Therefore, the potential scope of Gray is broad, and State Parties might find themselves obliged to investigate potential breaches of the ECHR at sea, whether in international waters or the territorial sea of a foreign State.

The request to refer Gray to the Grand Chamber of the ECtHR for further examination has now been rejected. Both the ECtHR and domestic courts may still seek to narrow its scope, but for now the Gray case appears to expand the reach of the ECHR, including within the maritime environment.


The Gray case is potentially good news for victims of human rights abuses and their dependents, allowing them potential greater leverage for bringing cases forward, including those that have occurred in the maritime environment. It would additionally appear that Gray provides a wake-up call for all parties who remain of the view that working in international waters on board vessels, or working in a jurisdiction where human rights enforcement is lax, means they will not be found accountable for human rights abuses. - MarEx

Ben Hardman is Senior Associate at Stephenson Harwood LLP.

David Hammond is Founder of Human Rights at Sea and a Barrister-at-Law at 9 Bedford Row.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.