A new initiative for the arbitration of human rights abuses at sea

Alexander Marcopoulos
Shearman & Sterling, Paris
Alexander.Marcopoulos@Shearman.com​​​​​​​

Elise Edson
Shearman & Sterling, Paris
Elise.Edson@Shearman.com

Introduction

It should not be controversial, in the absence of any rule to the contrary, that all human rights under international law apply at sea to the same degree and extent as they do on land, and that all persons at sea, without distinction, enjoy human rights.

Yet, these principles are neither adequately respected nor adequately enforced. Human rights abuses – including slavery, abandonment, human trafficking, sexual assault and denial of labour rights – persist at sea and in fact seem only to worsen year on year. Human rights violations on the high seas are of particular concern, with many of the most significant flag states unable to enforce the rule of law aboard vessels flying their flag, leaving victims without any avenue for complaint, let alone an effective remedy.

This situation of rampant impunity exposes the inadequacy of existing enforcement mechanisms for addressing human rights abuses at sea. What is needed is a special regime of redress that empowers victims to circumvent states’ failures of enforcement by raising claims directly against perpetrators, within a system that is customised to the peculiarities of the maritime space.

Arbitration is uniquely placed to perform this function, by offering a neutral and visible forum for the adjudication of human rights at sea claims in accordance with a highly flexible, specialised and cost-efficient procedure. Arbitration would additionally address the substantive dimension of a victim’s right to a remedy, by resulting in binding awards that are enforceable worldwide.

It is against this background that a new system for the arbitration of disputes concerning human rights abuses at sea has been proposed, based on an original concept conceived of by the UK-based charitable non-governmental organisation, Human Rights at Sea.[i] Driven by the twin goals of affording victims access to an effective remedy and ending impunity for perpetrators, this initiative also stands to benefit other actors in the maritime sector, including states and private business.

The inadequacy of existing protections for victims of human rights abuses at sea

Despite the existence of well-established international, regional and domestic systems for the protection of human rights, the path to seeking redress for victims of human rights abuses at sea is obstructed by multiple practical and legal hurdles.

Victims of human rights at sea violations may lack awareness or sufficient understanding of existing grievance mechanisms and how they can be accessed, and/or the financial means to bring a claim before such a body. These factors may be compounded by language barriers, as well as geographic distance. In many cases, probative documents may be in the hands of the perpetrator, with existing fora unable or unwilling to compel disclosure.

The identity of the party with ultimate responsibility for human rights abuses at sea is not always clear-cut, with a variety of actors – including flag states, ship owners, ship managers, charterers, insurers, suppliers and subcontractors – potentially facing liability. As a result, it may not be obvious which body has jurisdiction to hear a claim, or which law will apply.

Victims may be particularly discouraged from pursuing remedies before domestic fora owing to a perception of bias against foreign complainants. National courts may, moreover, be poorly equipped to handle the peculiar sensitivities of human rights claims. Many also lack expertise in maritime matters.

At the international level, human rights instruments typically impose direct obligations only upon states, and not private actors. Businesses therefore do not, as a general rule, owe obligations that can be enforced directly through traditional international human rights mechanisms. Where permitted, individual claims are subject to restrictive admissibility requirements. For example, a victim may not initiate a claim under an international human rights treaty unless the respondent state:

• is a party to the applicable treaty; and
• recognises the competence of the body set up under that treaty to examine individual complaints.

A victim may, moreover, be required to prove that they have exhausted domestic remedies, or that no adequate and effective remedy was available. Even if a victim is able to overcome such obstacles and successfully bring a claim, international bodies often lack the power to order an effective, personal remedy, or to enforce their decisions.

As a result of these and other challenges, traditional state-based mechanisms for human rights protection are not fully effective for human rights at sea claims. This means that, in practice, such claims are seldom raised.

How arbitration could offer victims of human rights abuses at sea a more effective mechanism for redress

Arbitration has a number of characteristics that make it well suited to overcome the obstacles that keep an effective remedy out of reach for victims of human rights abuses at sea, and to address the inequality of arms that is likely to exist between the parties to such disputes. These characteristics include the following.

Consent as the cornerstone of the arbitral process

The consensual foundation of arbitration is a key difference between arbitration and litigation. Consent, once perfected, is irrevocable. This means that, when an offer to arbitrate human rights at sea complaints has been made, and subsequently accepted by a victim through the filing of a claim, the offeror cannot revoke its consent to be bound by the arbitral process.

Flexibility

The rules governing human rights at sea arbitrations can be adapted to give the arbitral tribunal maximum flexibility as regards the conduct of the proceedings, including on such matters as interim measures, costs and the collection of evidence. Proceedings could be conducted in any language and take place anywhere in the world, or virtually (or a combination of the two).

Specialisation

Arbitration’s bespoke nature ensures that it can be customised for specific disputes or categories of disputes. In the case of human rights at sea arbitrations, arbitrators could be appointed based on their expertise in human rights or maritime matters. Special allowance could be made for the provision of pro bono legal representation and/or financial aid for victims, as well as witness protection. Moreover, human rights at sea tribunals would have at their disposal a wide range of remedies (monetary and non-monetary), and could tailor their awards to ensure that they are sensitive to the special needs of victims.

Neutrality

In addition to appointing an impartial arbitral tribunal, the parties to a Human Rights at Sea Arbitration could select a neutral (or virtual) venue for the proceedings, outside the home territory of either party. The arbitration system itself (including any institution overseeing the conduct of the arbitration) likewise would not be associated with any particular state. It would thus be less vulnerable to political or other pressure, increasing users’ trust in the system.

Enforceability

Absent any applicable treaty, the enforcement of national court judgments abroad can be burdensome. By contrast, arbitral awards can be enforced in any of the 167 states that are party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).[ii] Furthermore, an arbitral award can only be challenged on extremely narrow grounds, helping to guarantee the finality of the process.

How arbitration could end impunity for perpetrators of human rights abuses at sea, and act as a deterrent to future abuses

By affording victims access to an effective remedy, the proposed arbitration-based system for resolving human rights at sea complaints would help put an end to the status quo of impunity for perpetrators. The prospect of an internationally binding arbitral award holding perpetrators accountable in the form of monetary or other damages would, moreover, serve as an important deterrent to future violations.

The public interest in human rights at sea disputes additionally militates in favour of information about such disputes – including details of the parties and arbitrators, submissions, decisions, and hearings – being made public. Maintaining a high degree of transparency would have a further deterrent effect, including by increasing reputational risk for perpetrators. Human rights at sea tribunals would remain free to balance the public interest in transparency against competing interests, such as the safety or right to privacy of victims or witnesses, or any other confidentiality concerns.

How arbitration of human rights at sea disputes could benefit States and private business

As well as helping victims, human rights at sea arbitration would advance the interests of other maritime actors, including states and businesses. Aside from the reputational benefits that would flow to these actors from their participation in the proposed system, human rights at sea arbitration offers a novel (and effective) means for them to comply with their international obligations. Many of these obligations have a substantive and a procedural aspect, demanding (1) respect for human rights and (2) the provision of a remedy for human rights abuses.

An example is the International Labour Organization’s Maritime Labour Convention 2006, which requires member states not only to take measures to secure compliance with the Convention, but also to make available avenues of redress for violations.[iii] The Work in Fishing Convention 2007 likewise sets minimum standards for fishing industry workers, while also requiring member states to provide ‘the means of settling disputes in connection with a fisher’s work agreement.’[iv] The proposed system of human rights at sea arbitration would assist member states to satisfy these obligations.

The United Nations Guiding Principles on Business and Human Rights similarly call on states to both:

• protect human rights against abuse by business enterprises through a range of preventative and remedial measures, including ‘effective policies, legislation, regulations and adjudication,’;[v] and
• provide greater access to a remedy for victims of business-related human rights abuse ‘through judicial, administrative, legislative or other appropriate means’.[vi]​​​​​​​

Legislating for, or otherwise facilitating, the arbitration of human rights at sea complaints brought against business enterprises could additionally assist states in their fulfilment of these responsibilities.

For a flag state, requiring that ships flying that state’s flag consent to human rights at sea arbitration would constitute an additional tool for the state to discharge its duty of ensuring that human rights aboard such ships are adequately protected. In this way, the proposed new system would help combat the problems of poor flag state control.

For businesses, human rights at sea arbitration likewise provides a means for them to meet their responsibilities under the United Nations Guiding Principles on Business and Human Rights. In addition to the baseline responsibility of enterprises to comply with all applicable laws and to respect human rights, enterprises must ‘address adverse human impacts with which they are involved.’[vii] Businesses must also be able to demonstrate a human rights policy commitment, together with a due diligence process and a remediation procedure.[viii] Agreeing to submit to arbitration any human rights at sea complaint brought against it is one way in which a maritime enterprise could satisfy these requirements.

The responsibilities of businesses under the United Nations Guiding Principles on Business and Human Rights do not apply solely to their own activities, but extend to mitigating adverse human rights impacts in connection with their ‘business relationships.’[ix] These include relationships with business partners, as well as with entities along a supply chain or any other entity directly linked to an enterprise’s operations, products or services.[x] Insisting on consent to human rights at sea arbitration as a condition of doing business can also, therefore, provide a way for non-maritime enterprises whose business relationships encompass the maritime sector – such as enterprises with a maritime link in their supply chain, bankers, or insurers – to comply with their international responsibilities.

Conclusion

The proposed new system of human rights at sea arbitration seeks to take advantage of the unique characteristics of the arbitral process in order to solve key challenges impeding the enforcement of existing human rights standards as they apply at sea.

Currently in its early stages, this groundbreaking project entails establishing the basis for various users’ participation in the system through the preparation of model offers of consent to arbitrate, along with model arbitration clauses for inclusion in employment and other maritime contracts. A new set of arbitral rules, tailored to the peculiarities of human rights at sea arbitrations, is also in development.

By ensuring access to an effective remedy for victims of human rights abuses and incentivising compliance with international law, the initiative showcases the important potential for arbitration to strengthen the rule of law – not only on land, but also at sea.