The second independent report on flag state practice with regard to international and national human rights obligations has been published by The Flag State Research Project, a collaboration between Human Rights at Sea and the University of Bristol Law School Human Rights Centre on 9 June 2019. Following on from the 2018 report, which considered Marshall Islands, Saint Kitts and Nevis, and the United Kingdom, the current report looks at Panama, Denmark, and Taiwan, this year’s report considers the international and national human rights obligations of flag states, ongoing gaps in human rights, and offer recommendations for better practice.
Both reports carry similar findings and considerations based on desk based background research, outreach to key representatives and stakeholders of the flag states, and data analysis and reporting. The similarity of these findings lends weight to the need for widespread implementation of their recommendations. Most importantly, the reports emphasise the need for ratification of human rights instruments, such as those by the IMO and ILO conventions, as without these the state has no legal obligations and seafarers have fewer legal protections, including those that protect their socioeconomic rights.
Notably, the 2018 report questioned the actual adherence to human rights obligations by flag states classified as white, grey, and black under the Paris and Tokyo MoUs classification. This is similarly true for the findings in 2019. For example, while Panama, Denmark, and Taiwan are all listed as white list flag states, Taiwan is not a party to the Paris MoU and shows a significant gap between its listed standard and the efficacy of its human rights and labour law protection mechanisms. The report points particularly to the fishing sector as an example of this, where differential labour standards for foreign-workers and split institutional competence limits regulatory effectiveness. Similarly the Panama Maritime Authority only conducts inspections if a complaint occurs and is backed by the majority of the staff, suggesting that monitoring and reporting systems remain insufficiently implemented despite seeming adherence to protocol.
The 2019 findings were that while neither Denmark nor Panama were above reproach, “Taiwan’s lack of ratification of the core UN, Maritime and Labour Conventions represents a remarkable gap in the protection of human rights at sea.” While treaty ratification and human rights compliance in Denmark is welcome, the failure to ratify the International Convention on the Protection of the Rights of All Migrant Workers (ICMW) and Work in Fishing Conventions suggests a devaluation of the rights of migrant seafarers. Similarly, the report pointed to Panama’s Article 92, which modieifies the ethics and conduct regulation of the Panama Canal Authority, as an area of concern, which lessens the impact of any safeguards included within its maritime law.
Open registries such as those of Saint Kitts and Nevis (blacklisted by the Paris MOU and grey listed by the Tokyo MOU) and Marshall Islands (whitelisted by the Paris MoU), place emphasis on economic viability rather than on the protection of the human rights of seafarers. While the UK (whitelisted by the Paris and Tokyo MoUs) has more human rights instruments and public resources, the 2018 report notes that “available means for seafarers to submit complaints concerning human rights violations as well as public information regarding this issue are lacking. This could be interpreted as a lack of political will to accommodate for and protect the human rights of seafarers.”
In effect, most maritime regulations used to qualify for white flag status were to do with boat sizes and safety and environment concerns (such as pollution levels), while the monitoring and reporting of human rights appeared to be secondary considerations. Therefore, there remains a need to add the consideration of human rights instruments’ ratification record, labour standards, and human rights compliance, alongside an expanded and publicised rationale for ratings (with data used to assign these) to the list of categories that would allow a flag state to be white listed. However, the issue remains complex; as the 2018 report noted that “any system of human rights protection relies heavily on the availability of resources and political will.” Monitoring mechanisms may be hindered by the size of the state, lack of resources, and the size of the registry.
As such, there remains a need for flag states to improve their communication. This encompasses the clarity of their websites, the publication of investigations, user access to information, and the provision of contact details to create a user-friendly complaint mechanism. The 2019 report notes that “where no complaint mechanism is available, it is of utmost urgency to establish a point of contact for vulnerable workers at sea.”