New Human Rights and Piracy programme from HRAS

Associations, Corporate Social Responsibility, Health and Safety, HR, Labour Disputes, Legal — By on April 29, 2015 at 8:55 AM
David Hammond

David Hammond

New Human Rights and Piracy programme from HRAS

Introduction:

Human Rights at Sea (HRAS) is working closely with Dr. Anna Petrig for both the on-going legal research and development of ‘Human Rights and Piracy’ as part of the HRAS series of International Project programmes, and as a valued member of the HRAS Board of Advisors.

The depth of practical, legal and academic maritime expertise that HRAS is able to call upon is world-class. This programme is focused at further developing the Piracy subject matter area through the first-hand experience of international practitioners and providing a pro bono platform to showcase their contributions to the subject matter area. HRAS provides web links to academic materials, but itself does not charge for any materials produced as part of the programme.

Aim

The Aim of the Human Rights and Piracy programme is to research and develop world-class soft law guidance in response to the global piracy issue with a specific focus on the application of human rights at sea. HRAS provides web links to academic materials, but itself does not charge for any materials produced as part of the programme.

Overview on “Human Rights and Piracy”

The UN Security Council has set an ambitious goal for itself: the full and durable eradication of piracy and armed robbery at sea. In order to achieve this goal, it has set up an ad hoc legal framework authorizing counter-piracy enforcement measures in Somali territorial waters and on its mainland (Security Council Resolutions 1846 and 1851 as prolonged). These resolutions supplement the existing legal instruments to combat piracy on the high seas – in particular the United Nations Convention on the Law of the Sea of 1982 (UNCLOS) and the Convention on the High Seas of 1958 (HSC).

The exercise of the rather far-reaching counter-piracy enforcement powers granted by vir­tue of the LOSC, the HSC and the respective Security Council Resolutions – notably interdiction, seizure, arrest, and the imposition of penalties – implies the use of force and coercion. But neither legal instrument indicates the allowable amount of force or coercion. And yet: even though the legal instruments governing counter-piracy operations do not explicitly mention the applicable human rights norms, enforcement powers cannot be exercised in a legal vacuum and ad libitum. Rather, their exercise is restricted by the application of general human rights law as confirmed by an increasing number of court decisions, most notably in the European Court of Human Rights (ECHR).

While there is general agreement today that human rights, as a set of fundamental guarantees, apply in the maritime environment, there is some legal uncertainty as to their application in concreto. As regards counter-piracy operations, various factors contribute to this uncertainty.

First of all, patrolling naval States generally exercise counter-piracy enforcement powers in maritime areas not under their sovereignty and thus extraterritorially.

The requirements for the extraterritorial application of human rights in a maritime environment are not yet developed to the same extent as they are for land-based police operations beyond a State’s territory. Furthermore, within the specific context of maritime operations and most importantly, with enforcement measures being taken on board a ship far away from the domestic authorities, this raises the question to what extent deviations from ordinary standards are allowed and promoted through national maritime policies (for example, the applicability of the ordinary land time limit to bring a criminal suspect before a judge).

Another source of uncertainty is the fact that counter-piracy missions are often composed of military, rather than police forces. Often, domestic provisions constraining enforcement powers are applicable to police forces only and their extension ratione personae to military personnel is questionable.

Finally, counter-piracy operations are often directed by multinational missions composed of different contributing States and, at times, even involving the European Union or other international organization. This raises complex jurisdictional issues, notably as regards the applicable law and its potentially different interpretation by the various actors. Moreover, in case of alleged human rights violations, their attribution is an intricate question, which has not yet been answered in a uniform way by case law and doctrine.

Human Rights at Sea and its International Programme for Piracy works towards the clarification of issues in relation to the applicability of human rights to counter-piracy operations and the content of specific rights in this specific operational context. Its research contributes to the realization of the principle that human rights apply at sea as equally as they do on land.

The Human Rights at Sea (HRAS) initiative has been independently developed for the benefit of the international community for matters and issues concerning human rights in the maritime environment. Its aim is to explicitly raise awareness, implementation and accountability of human rights provisions throughout the maritime environment, especially where they are currently absent, ignored or being abused.

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