Use arbitration to tackle human rights issues for crew, say legal experts

Crew on board a vessel. Credit: HASENPUSCH DIETMAR

Certain flag states do not have the resources, or, in some cases, the will to help protect seafarers’ human rights, according to legal experts. Instead they suggested that the maritime industry should resolve human rights at sea issues using arbitration; a way to resolve disputes between parties outside of court.

Speaking at a 9 July webinar, host David Hammond CEO of Human Rights at Sea (HRAS) suggested that an international arbitration system, tailored for human rights at sea claims, is the best way to ensure that human rights at apply to the same degree at sea as they do on land.

Currently, the onus is on flag state administrations to exercise their jurisdiction over vessels that fly their flag and ensure the crews onboard are being treated within the confines of national and international laws. This is enshrined in Article 94 of the United Nations Convention of the Law of the Sea, which covers flag state’s duties regarding manning of ships, labour conditions and training of crews.

Alexander Marcopoulos, counsel, International Arbitration Practice at Shearman and Sterling, opined that certain flag states, including the largest flag states, are not able or even willing to undertake this task to implement human rights law. “Most of the merchant vessels that sail around the world are flagged by states that do not have a navy,” said Marcopoulos. “There is no way of policing compliance with international law”.

Marcopoulos explained that this is why human rights abuses at sea are so prevalent. “Very few commercial vessels are registered to states that are actually capable of enforcing their laws, in fact some are flagged within landlocked states,” he noted.

Professor Anna Petrig, chair of International Law and Public Law at the University of Basel, spoke of an enforcement gap for the implementation of human rights at sea. The emergence of ‘flags of convenience’ has meant a shipowner can choose their flag, and then the subsequent laws and courts of that flag’s jurisdiction, as well as the working and living standards to which they can subject their crew, she explained.

“Many opt for, so called, flags of convenience and low standards in terms of labour and environmental law,” said Petrig. “Liberia is second in terms of most flagged vessels, in terms of rule of law it ranks at the bottom of the league table”.

Pertig said that when it comes to regulatory enforcement, according to the World Justice Project – Rule of Law Index Liberia ranks 102 of 128 flag states analysed for regulatory enforcement. “One of the most important flag states has the worst rule of law,” she said.

The Liberia flag registry issued a comment for SAS in response to these allegations, stressing that it plays a leading role in the IMO, it has a “worldwide recognition in the maritime industry for regulatory compliance and enforcement” and sits at the top of the Paris and Tokyo MOU White Lists. “Liberia has laws which are codified, including the Maritime Law (Title 21 of the Liberian Code of Laws, Revised), which governs vessels flying the flag of Liberia. Also, Liberia has ratified the international Maritime Labor Convention (2006), which has formed part of the maritime law with penalties for vessel owners who fail to comply with any one of the titles of the Maritime Labor Convention, i.e., conditions of employment, health and welfare protection, minimum requirements for seafarers to work on a ship, payment, freedom of association, protection’s, Labor Contracts, and others. Nowhere in that global review was there mention of Liberian Maritime Law, and its decades of enforcement,” the statement concluded.

However, the legal experts on the webinar were in agreement that arbitration is the correct approach to take to resolve human rights issues that persist in the maritime industry. This, Pertig explained, is because it is a judicial system without a set country and there would no longer be a need to rely on set country court systems, as some are more reliable than others.

“There is a need for flag administrations to take human rights more seriously and embed an arbitration concept in maritime law,” said Eric Dawicki, president and CEO Commonwealth of Dominica Maritime Registry.

As one of the only small island registries that is not on the International Transport Workers Federation’s flag of convenience list, Dawicki said it shows its commitment to standards and seafarer rights. He stressed that size and lack of a navy is not an excuse for lack of enforcement; Dawicki explained that Dominica works with other administrations to engage in law enforcement. The flag state can apprehend vessels at sea through bilateral agreements with the US and help from the US Navy and Coastguard. It can also use the US treasury to enforce foreign asset control.

Making sure that law enforcement can be promulgated, promoted and realised by a small flag state takes effort, resolve and knowledge. It’s unacceptable for a flag state to avoid our responsibilities,” commented Dawicki. “There’s only a small group of bad actors out there, most ship owners and operators are doing the right thing, but this new mechanism [arbitration] can promote even better compliance, and we fully support the idea of arbitration”.

Martin Doe, senior legal counsel at the Permanent Court of Arbitration, said that there is proof of concept of arbitration on land and cited the example of the Rana Plaza disaster in Dhaka, Bangladesh. A garment factory collapsed, which claimed the lives of over 1,100 workers. As a result, global and local unions negotiated with global brands taking advantage of Bangladeshi garment workers to establish an accord on fire and building safety in Bangladesh. Arbitration was used as a backstop to address the previous enforcement gap, as legally binding commitments were made.

“International arbitration can make a difference, by putting the enforcement of international human rights law, which is failing at present, in the hands of victim,” said Marcopoulos. Non-governmental institutions and shipping unions, under this system could file claims against businesses, either on behalf of the victims or by themselves for infringements of labour conventions.

“This can only work where there are state protections for the citizens and respect international law norms,” said Hammond. “At present these fundamental principles are not being adequately respected, complied with or enforced at sea”.