The UK-based charity Human Rights at Sea and global law firm Shearman & Sterling have launched a new legal project to facilitate the resolution of disputes concerning human rights abuses at sea using international arbitration.
The project’s principal aim is to provide victims of human rights abuses at sea with access to an effective remedy – while at the same time combating impunity for the perpetrators of such abuses.
As described in Human Rights at Sea’s founding documents and most recently asserted in the first version of the ‘Geneva Declaration on Human Rights at Sea’, the philosophy of human rights at sea rests on four fundamental principles: that human rights apply at sea to exactly the same degree and extent that they do on land; that all persons at sea, without any distinction, enjoy human rights; that there are no maritime-specific rules allowing derogation from human rights standards; and that all human rights established under treaty and customary international law must be respected at sea.
At present, these fundamental principles are not, according to Human Rights at Sea, being adequately respected, complied with or enforced.
There remains, the charity says, significant evidence of widespread and systematic human rights abuses at sea, including slavery, sex trafficking, sexual assault, abandonment, and deprivation of basic labour rights.
The arbitration mechanism under development is designed principally to improve the situation of victims of human rights abuses at sea.
The goal is to provide victims with an additional mechanism of redress, alongside those that already exist – such as national or regional courts – in which they can choose to bring their human rights claims.
This mechanism would address claims arising from existing and established international law and principles for the protection of human rights.
It would not require any new substantive human rights protections, nor would any new substantive law be necessary.
At the core of this arbitration-based mechanism would be a network of stakeholders active or directly interested in maritime commerce, including flag States, port and coastal States and businesses.
A critical mass of players representing some or all of these interests will be invited to provide open offers of consent to arbitrate human rights disputes.
Such offers would be capable of acceptance by any party alleging a human rights abuse by the offeror, through the aggrieved party’s filing of an arbitration claim.
The ensuing arbitration proceedings would be administered by a dedicated ‘human rights at sea’ arbitration institution, which would, among other things: promulgate a set of procedural rules specifically tailored for human rights disputes; maintain a roster of specially qualified human rights arbitrators; and oversee the constitution of arbitral tribunals (including by resolving any challenges to the appointment of arbitrators).
To ensure it attracts the necessary involvement and feedback – not only from the necessary stakeholders but also from interested international organizations such as the UN – the project will be launched through a series of successive and iterative steps.
This first stage is the circulation of a White Paper setting out the broad parameters of the arbitration-based mechanism of redress being proposed.
Based on the feedback received, the concept will be further developed in subsequent stages.
“This project is a groundbreaking development – not only for the protection of human rights internationally but also for the practice of international arbitration,” says Dr. Yas Banifatemi, a partner at Shearman & Sterling.
“It is yet another example of the significant value that arbitration has in helping bring justice and the rule of law to people that may not otherwise have sufficient access to them.
“We’re very proud of this effort and excited to see how it will progress through the next stages of development.”