Coastal State Jurisdiction in the Territorial Sea and the Protection of People on Board Foreign-Flagged Vessels

Right now—the tenth of December—is a vital day for worldwide legislation. First, on 10 December 1982, the United Nations Conference of the Regulation of the Sea (UNCLOS) was adopted in Montego Bay, Jamaica. Amongst different issues, the UNCLOS governs the harmless passage regime, which codifies and stabilises the fragile steadiness struck between the pursuits of coastal states in asserting jurisdiction within the waters off their coasts and the pursuits of flag states in unimpeded navigation therein (Articles 17 ff. UNCLOS). Second, 10 December is noticed yearly as Human Rights Day, commemorating the proclamation of the Common Declaration of Human Rights (UDHR) by the United Nations Common Meeting in Paris on 10 December 1948. Article 2 of the UDHR states that ‘[e]veryone is entitled to all of the rights and freedoms set forth on this Declaration, with out distinction of any variety’. Which means folks at sea ought to get pleasure from human rights, as do folks on dry land. But, folks on board service provider ships, fishing vessels and even cruise liners typically undergo egregious violations of their most elementary rights.

Right now is, subsequently, an acceptable second to mirror on the interplay between the legislation of the ocean—specifically, the harmless passage regime—and worldwide human rights legislation. Concretely, this weblog publish explores the query of whether or not the UNCLOS, in sure conditions, authorises the coastal state to take motion in opposition to a foreign-flagged ship in its territorial sea on the bottom that the violation of the rights of individuals on board renders the ship’s passage non-innocent. If a ship is in non-innocent passage, the coastal state has full prescriptive and enforcement jurisdiction over it and may topic the ship to its legal guidelines and procedures. In different phrases, the foreign-flagged ship loses the protect defending it from the jurisdiction of the coastal state.

Earlier than delving into the evaluation, a caveat is so as. This publish will ask extra questions than it solutions. Offering agency solutions appears not possible at this stage for not less than three causes: First, the provisions of the UNCLOS on the harmless passage regime carry a excessive variety of ambiguities and are controversially mentioned. Second, whereas the idea of human rights at sea has gained acceptance lately, it’s removed from being absolutely established. Third, there may be little doctrine, and even much less state follow, on the interplay between coastal state jurisdiction within the territorial sea and worldwide human rights legislation. This publish is thus an invite to hitch me in an exploration and navigate these largely uncharted waters.

Harmless passage is outlined below Article 19 UNCLOS. The availability seems to supply not less than three avenues for making an allowance for violations of the rights of individuals on board a vessel when assessing whether or not the ship’s passage is harmless.

First avenue: Article 19(2)(l) UNCLOS (‘any exercise not having a direct bearing on passage’)

The primary is Article 19(2)(l) UNCLOS, stipulating that passage is non-innocent if the vessel engages in ‘another exercise not having a direct bearing on passage’.

That is the final merchandise on an inventory of 12 actions that render passage non-innocent—an inventory that was meant to take away some subjectivity within the evaluation of non-innocence. Whereas some describe it as a ‘catch-all provision’, compromising the very concept of constructing the evaluation of non-innocence extra goal, it’s nonetheless removed from apparent whether or not violations of the rights of individuals are lined by this merchandise.

First, the violation of rights, that are dedicated by individuals, is perhaps excluded from this clause as a result of it has been argued—in contexts aside from this one—that the wording of Article 19(2)(l) UNCLOS refers back to the conduct of the ship slightly than to the conduct of individuals. This argument can most likely be refuted by stating that varied provisions of UNCLOS seek advice from ‘ships’ once they really imply the individuals on board. That is true even of provisions referring to prison offences that are per se dedicated by human beings (see, e.g., Article 108 UNCLOS).

Second, it’s argued that the phrase ‘another exercise not having a direct bearing on passage’ covers solely conduct manifesting itself externally. But, it appears slightly synthetic to tell apart between exterior and inside conduct because the conduct of the ship is inextricably linked to the conduct of individuals on board. For instance, a ship that engages in (unlawful) fishing can solely achieve this as a result of there are fishers on board who could, inter alia, be subjected to pressured labour.

Third, and this needs to be taken severely so as to not go in opposition to the grain of the harmless passage regime, the listed actions have to achieve a sure degree of gravity. This follows not solely from the concept of balancing flag and coastal state rights that’s inherent within the harmless passage idea but additionally from the chapeau of Article 19(2) UNCLOS indicating that the listed actions are deemed to be prejudicial to the peace, good order or safety of the coastal state. When Natalie Klein not too long ago wrote that ‘Committing human rights violations wouldn’t usually represent actions which can be straight linked to passage’ (see right here), that is true. Nonetheless, a contextual studying of the clause means that solely violations of rights reaching a sure threshold render passage non-innocent.

This threshold query shall be explored within the context of the second attainable avenue to combine rights-based concerns into the which means of harmless passage via the primary sentence of Article 19(1) UNCLOS.

Second avenue: Article 19(1) UNCLOS (‘not prejudicial to the peace, good order or safety of the coastal State’)

In response to the primary sentence of Article 19(1) UNCLOS, ‘[p]assage is harmless as long as it isn’t prejudicial to the peace, good order or safety of the coastal State.’ A number of elements of this provision stay controversial in scholarly discussions. Amongst these is the query of whether or not the coastal state has residual authority to find out {that a} ship is in non-innocent passage on the idea of this sentence alone, even when the ship doesn’t have interaction in any of the actions listed in paragraph 2. For the needs of this weblog publish, it’s assumed that Article 19(1) UNCLOS has a self-standing which means. Consequently, it’s needed to find out what the phrases ‘peace’, ‘good order’ and ‘safety’ cowl. As these phrases are very broad, it’s simpler to outline them negatively, to state what they don’t cowl, than to outline them positively.

By means of exclusion, it has, for instance, been argued that passive elements don’t quantity to acts prejudicial to the peace, good order and safety. This might result in the assertion that violations of rights by omissions can not qualify as actions rendering passage non-innocent. But, contemplating the ‘passive elements’ often talked about in doctrine, similar to the character of the cargo or the state of the ship, evidently all of them seek advice from situations and circumstances that don’t quantity to conduct. In gentle of this, evidently violations of rights by omission aren’t passive elements since omissions are, subsequent to actions, a type of conduct.

It has additional been argued, in different contexts, that the coastal state can solely invoke the safety of its personal pursuits within the context of harmless passage, however not these of different states or of the worldwide neighborhood. This argument could also be dismissed if the breached obligation is an erga omnes obligation. Within the Barcelona Traction judgment of 5 February 1970, the Worldwide Courtroom of Justice (ICJ) held that some obligations of worldwide legislation come up ‘in the direction of the worldwide neighborhood as an entire’ and that they’re by their very nature ‘the priority of all States’ (para 33). ‘In view of the significance of the rights concerned, all States may be held to have a authorized curiosity of their safety; they’re obligations erga omnes’ (para 33). For current functions, it’s fascinating to notice that the ICJ thought of ‘the ideas and guidelines in regards to the fundamental rights of the human individual, together with safety from slavery’ to be erga omnes obligations (para 34). As a consequence, the safety of coastal state pursuits and the pursuits of the worldwide neighborhood merge in case of violations of fundamental rights of individuals on board.

The erga omnes nature of an obligation could, subsequently, negate the argument that the safety of neighborhood pursuits shouldn’t be taken into consideration when assessing whether or not the passage is non-innocent. Nonetheless, it doesn’t exempt us from the necessity to positively outline the brink {that a} violation of the rights of individuals on board a foreign-flagged ship should attain to be able to think about its passage to be prejudicial to the peace and good order of the coastal state. Certainly, the vary of attainable violations of rights is immense when it comes to gravity and severity. Evaluate, for instance, the state of affairs of a seafarer who’s denied medical therapy for a chilly with that of a minor who’s lured on board fishing vessels, pressured to work, and drugged to be able to preserve performing regardless of sleep and meals deprivation. This begs the query of what sort of violation of rights is required to render the ship’s passage non-innocent.

Arguably, the ius cogens nature of the duty might present a benchmark. The circle of peremptory norms isn’t clearly delineated. In its Draft Conclusions on the Identification and Authorized Penalties of Peremptory Norms of Common Worldwide Regulation (jus cogens) of 2022, the Worldwide Regulation Fee offers a non-exhaustive checklist of peremptory norms. It consists of the prohibition of slavery and torture (see Conclusion 23 and Annex).  Whereas varied latest stories seek advice from ‘slavery-like situations’, ‘trendy slavery’, or employees ‘handled like slaves’ on board sure ships, together with fishing vessels (see, e.g., right here or right here), it stays to be decided whether or not these practices quantity to slavery within the sense of talked about ius cogens norm. Relating to torture, it could be needed to find out the optimistic obligations of states and whether or not they type a part of the ius cogens core of the appropriate.

Nonetheless, it’s questionable whether or not the sort and standing of the appropriate violated—similar to the truth that a proper quantities to ius cogens—must be decisive for assessing innocence. Or whether or not the violation of any proper ought to qualify as being prejudicial to the peace and good order supplied its violation incorporates a sure gravity. For instance, if the violation is severe, protracted and/or systematic, or if the conduct ensuing within the violation of the appropriate on the identical time quantities to a severe crime.

With out digging any deeper right here, we flip to the third avenue which will permit contemplating violations of the rights of individuals on board foreign-flagged ships when assessing non-innocence, which is the second sentence of Article 19(1) UNCLOS.

Third avenue: Article 19(1) UNCLOS (‘passage shall happen in conformity (…) with different guidelines of worldwide legislation’)

This a part of Article 19 UNCLOS states that ‘passage shall happen in conformity with this Conference [the UNCLOS] and with different guidelines of worldwide legislation’. The which means of the reference to ‘different guidelines of worldwide legislation’ stays contested.

Some argue that this reference to exterior guidelines merely requires that different guidelines of worldwide legislation, in our case, worldwide human rights legislation, be taken into consideration within the interpretation of the idea of ‘non-innocence’ below UNCLOS. Such systemic integration creates some house to think about norms defending folks at sea when putting the superb steadiness between coastal and flag state pursuits. It’s basically what this evaluation has been doing to this point.

Others have a extra liberal interpretation of this second sentence of Article 19(1) UNCLOS. In response to this view, innocence, as outlined in UNCLOS, isn’t the one criterion for passage, and different guidelines of worldwide legislation may management the appropriate of passage. They level to the wording of the availability, which states that ‘passage shall be in accordance with this Conference and different guidelines of worldwide legislation’ (emphasis added). This studying creates far more room to convey worldwide legislation defending folks at sea into play when assessing innocence. Slightly than solely deciphering innocence in gentle of worldwide human rights legislation, innocence can be measured in opposition to the requirements of this exterior physique of legislation.

In sum, Article 19 UNCLOS presents not less than three avenues to think about violations of the rights of individuals on board a vessel whereas assessing whether or not a ship’s passage is harmless. Nonetheless, whether or not we settle for that the safety of individuals at sea is a related issue within the evaluation of harmless passage and the way a lot we open the door for an interplay between the legislation of the ocean and worldwide human rights legislation hinges on the other ways we might interpret Article 19 UNCLOS, as proven on this weblog publish. Even when we agree, in precept, that concerns referring to the safety of individuals at sea ought to come to bear, the unsolved query is what violations render passage non-innocent—the reply to this query must be one that doesn’t basically disturb the steadiness struck by the UNCLOS between coastal state and flag state pursuits. But, disregarding egregious violations of the rights of individuals on board foreign-flagged vessels in passage in territorial waters additionally appears tough, all of the extra as Article 19 UNCLOS itself suggests to not less than take into consideration exterior guidelines of worldwide legislation and thus worldwide human rights legislation.

An Obligation to Train Jurisdiction?

Assuming {that a} coastal state has full prescriptive and enforcement jurisdiction over a foreign-flagged ship in its territorial sea as a result of violations of the rights of individuals on board render its passage non-innocent, this raises the additional query of whether or not worldwide human rights legislation and/or transnational prison legislation would possibly oblige the coastal state to train its jurisdiction.

In comparison with 30 years in the past—when the UNCLOS entered into power—it’s as we speak recognised that worldwide human rights legislation and, even much less controversial, transnational prison legislation are extremely related to the maritime context. It has been nicely understood that, for the longest time, folks at sea and the chance of violations of their most elementary rights remained slightly invisible. That is mirrored within the textual content of the UNCLOS, which—to cite Professor Sir Malcolm Evans—‘has an terrible lot extra to say about defending fish than about defending folks’. But, over the previous 15 years, a sequence of crises—a safety disaster (piracy), a humanitarian disaster (migration) and a public well being disaster (Covid-19 pandemic) – have put a highlight on folks at sea and the threats and risks to their rights (see right here and right here). The following doctrinal and coverage debates have largely dismantled the concept that the oceans are an distinctive house the place human rights don’t apply.

On the identical time that the idea of human rights at sea has begun to crystallise, transnational crime at sea has risen to the highest of the checklist of safety threats (see, e.g., UN Doc A/63/63, paras 54-113), underscoring the relevance of transnational prison legislation to the maritime area. What’s extra, the final decade has seen a rising recognition of the hyperlink between transnational crime and violations of the rights of individuals on board ships. For instance, cases of unlawful, unreported and unregulated (IUU) fishing, human trafficking, pressured labour and inhuman therapy not hardly ever happen together (see, e.g., right here).

In gentle of those developments, it’s value enquiring whether or not the coastal state is, by advantage of exterior guidelines stemming from worldwide human rights legislation and/or transnational prison legislation, obliged to topic a ship to its legal guidelines and procedures when its passage is non-innocent due to a violation of the rights of individuals on board and/or the fee of a transnational crime—even when below the legislation of the ocean thought of in isolation, the coastal state is authorised, however not obliged to take action.

The permissive character of jurisdiction below the legislation of the ocean

Jurisdiction below the legislation of the ocean is permissive in nature, not prescriptive. Which means the coastal state is authorised, however not obliged, to train it. That is confirmed by Article 25(1) UNCLOS, stating that ‘The coastal State could take the mandatory steps in its territorial sea to forestall passage which isn’t harmless’ (emphasis added). The phrase ‘could’ signifies that the coastal state has the choice to not take any motion in any respect in opposition to a non-innocent ship. If it decides to take motion, the considerably ambiguous phrases ‘stop passage’ in Article 25 UNCLOS are learn by the vast majority of commentators as giving the coastal state two choices: to train jurisdiction over the ship, that’s, to topic it to its legal guidelines and procedures, or to easily expel the ship from its territorial sea.

Issues have been expressed that if the coastal state decides to take no motion in any respect or just expels the ship from its waters, the violation of the rights of individuals on board and the associated crimes will develop into another person’s drawback or probably nobody’s drawback in any respect. In different phrases, an impunity hole could also be created.

In gentle of this, commentators have not too long ago put the argument ahead that different guidelines of worldwide legislation could, in sure conditions, oblige the coastal state to train its jurisdiction over the non-innocent ship. I’ll, subsequently, discover whether or not worldwide human rights legislation and/or transnational prison legislation have the potential to remodel the authorisation to train jurisdiction below the legislation of the ocean into an obligation to train jurisdiction.

Does worldwide human rights legislation oblige the coastal state to train its jurisdiction?

Worldwide human rights legislation doesn’t have an effect on the allocation of jurisdiction at sea; the allocation of jurisdiction is a matter for the legislation of the ocean. Nonetheless, the place a state really has jurisdiction below the legislation of the ocean (for instance, over a ship in non-innocent passage), worldwide human rights legislation could oblige the coastal state to train it.

This has to do with the compulsory nature of human rights, which imposes duties upon states requiring particular conduct in particular conditions. As Irini Papanicolopulu has put it in her seminal monograph entitled ‘Worldwide Regulation and the Safety of Individuals at Sea’, ‘in a number of circumstances duties below human rights legislation really oblige states to interact in actions that in any other case can be solely discretionary, in keeping with the legislation of the ocean provisions’ (p. 205). She goes on to state that ‘each time a State has the appropriate to train an influence below the legislation of the ocean provision, and that energy is instrumental to the safety of the appropriate of an individual, then that State is below the duty to take such motion’ (p. 205). This may comply with from a joint studying of the legislation of the ocean and human rights legislation.

This raises the query of whether or not, below worldwide human rights legislation, the coastal state has an obligation to behave when a violation happens on board a personal foreign-flagged ship in its territorial waters that renders the passage non-innocent. This requires a two-step evaluation.

Step one is to find out whether or not worldwide human rights legislation is relevant to the state of affairs at hand. A state doesn’t owe human rights to all individuals however solely to these with whom it entertains a relation of obligation. This accrues, for instance, from Article 1 European Conference on Human Rights (ECHR) and Article 2(1) Worldwide Covenant on Civil and Political Rights (ICCPR). Such a relation of obligation notably exists if a state has de jure jurisdiction over an individual, for instance, by advantage of the legislation of the ocean. Since a coastal state has full de jure jurisdiction over a ship engaged in non-innocent passage, the applicability of its human rights obligations is triggered.

Nonetheless, it isn’t enough that human rights are relevant to the state of affairs at hand; slightly, a substantive obligation of the coastal state to behave within the specific case—an obligation to behave—have to be recognized. This isn’t readily obvious in our case because the violation of rights on board is dedicated by personal actors on board a personal ship.

Allow us to take a step again and think about the totally different roles and duties of states in defending folks at sea. First, the coastal state could be the direct supply of human rights violations when it takes motion at sea utilizing state vessels. Regulation enforcement is a traditional state of affairs the place a coastal state could be the violator of human rights, for instance, via using extreme power. These unfavourable obligations have obtained rising consideration lately however aren’t related within the current case.

Second, and this can be a much less explored function, states are additionally guarantors of the rights of individuals at sea: the optimistic obligations below human rights legislation require the coastal state to take measures to guard folks to whom it owes human rights obligations, together with from hurt brought on by personal actors, similar to masters, shipowners or ship operators.

The Committee on Financial, Social and Cultural Rights (CESCR) said in its Common Remark No. 24 (para 14) that the obligation to guard requires states to take varied sorts of measures to make sure that personal enterprise actors don’t trigger violations of financial, social, and cultural rights. The Human Rights Committee (HRC) held the identical for civil and political rights in its Common Remark No. 31 (para 8), and the Committee in opposition to Torture (CAT) wrote in its Common Remark No. 2 (para 18) that states have interaction their human rights accountability in the event that they ‘know or have cheap grounds to imagine that acts of torture or ill-treatment are being dedicated by non-state actors or personal actors they usually fail to train due diligence to forestall, examine, prosecute and punish such non-State officers or personal actors’.

From this quote, it turns into evident that the obligation to guard, which is a part of most human rights obligations, is a due diligence obligation and, thus, an obligation of conduct slightly than outcome. Coastal states are thus not below an obligation to realize a sure outcome however are legally obliged to deploy sufficient means, train the very best efforts, and do the utmost to acquire the specified outcome. There is no such thing as a pre-defined checklist of measures {that a} state should take to fulfil its due diligence obligations. However, judicial and quasi-judicial our bodies have recognized a variety of measures which can be related in assessing compliance. Of significance for the current context are the obligations to enact and truly implement home laws, notably prison legislation, that forestalls personal actors from partaking in conduct that violates the pursuits and values protected by human rights legislation (see, for instance, CESCR, Common Remark No. 24, para 14; HRC, Common Remark No. 31, para 8; CAT, Common Remark No. 2, paras 8 and 18).

In sum, below worldwide human rights legislation, the coastal state owes obligations to folks on board a non-innocent ship as a result of this ship falls below its de jure jurisdiction. Beneath the optimistic obligations of varied human rights, such because the prohibition of torture or the appropriate to life, the coastal state has an obligation to guard these folks from hurt brought on by personal actors. This due diligence obligation requires the taking of acceptable or sufficient measures, which usually embrace the enactment and enforcement of legal guidelines stopping the hurt in query.

Coming again to Article 25(1) UNCLOS, this provision solely authorises the coastal state to train its jurisdiction, that’s, to topic the non-innocent ship to its legal guidelines and procedures. Therefore, the legislation of the ocean, thought of in isolation, doesn’t oblige the coastal state to take action; the coastal state may merely expel the ship and even decide to stay passive. In contrast, worldwide human rights legislation obliges the coastal state to train its prescriptive and enforcement jurisdiction. In gentle of this, some commentators argue that the legislation of the ocean needs to be learn along with worldwide human rights legislation; the latter physique of legislation would remodel the appropriate to behave granted by the legislation of the ocean into an obligation to behave, implying in our case that the coastal state should topic the non-innocent ship to its legal guidelines and procedures.

Does transnational prison legislation oblige the coastal state to train its jurisdiction?

An analogous argument has not too long ago been made by Antonios Tzanakopoulos in relation to transnational prison legislation (see right here). As talked about, transnational prison legislation is vital for the safety of individuals at sea since violations of rights on board ships typically outcome from, or are carefully linked to, the fee of transnational crimes. Suppressing these crimes is, subsequently, key to stopping and ending violations of the rights of individuals on board.

The principle authorized devices to forestall and repress transnational crimes are suppression conventions. After the flip of the millennium, a sequence of latest suppression conventions related to the maritime area entered into power, specifically the UN Conference in opposition to Transnational Organised Crime (UNTOC) and the Protocol to Forestall, Suppress and Punish Trafficking in Individuals, particularly Ladies and Kids.

Sometimes, suppression conventions require states events to criminalise the offences outlined within the treaty below their home legislation, that’s, to train their prescriptive jurisdiction. As well as, they often include an obligation for states events to train its enforcement jurisdiction by both extraditing or prosecuting suspects discovered on their territory. Furthermore, a few of these treaties oblige states events to respect and defend individuals who’re victims of the lined offences, for instance, individuals who’ve been the thing of trafficking in individuals.

The argument is then similar to that made within the context of worldwide human rights legislation. Transnational prison legislation treaties don’t confer a coastal state with jurisdiction over foreign-flagged ships. Nonetheless, if the legislation of the ocean allocates jurisdiction to the coastal state, obligations of transnational prison legislation come to bear. Since they oblige the coastal state to train its prescriptive jurisdiction by criminalising sure conduct and to train its enforcement jurisdiction by both prosecuting or extraditing the suspect, the coastal state is thus obliged to topic the non-innocent ship to its legal guidelines and proceedings. The coastal state has an obligation to behave and can’t merely expel the ship or stay passive, as stays the case if we learn the legislation of the ocean in isolation.

Conclusion

Because the entry into power of UNCLOS three many years in the past, worldwide legislation has advanced. New treaties have been adopted. And current legislation, which had historically been thought of from a land-based perspective, began being perceived from a maritime perspective. That is true of worldwide human rights legislation but additionally of transnational prison legislation, which acquired a distinguished place within the maritime area when transnational crime turned the first risk to maritime safety within the twenty first century.

Not solely has the legislation advanced, however so has our interpretation of it. With the ‘legalisation’ and ‘judicialization’ of world politics after the top of the Chilly Warfare—mirrored within the adoption of latest multilateral treaties and the creation of varied worldwide courts and tribunals —there was a rising consciousness of a sure threat of fragmentation of worldwide legislation. Systemic integration was recognized as one of many most important methods for reaching a level of concord between totally different authorized regimes (see Examine Group of the ILC, Draft Conclusions of the Work of the Examine Group, p. 105). Most not too long ago, in its Advisory Opinion on Local weather Change, the ITLOS burdened the significance of systemic integration as a instrument to keep away from fragmentation, by stating: ‘The Tribunal is of the view that, topic to Article 293 of the Conference, the provisions of the Conference and exterior guidelines ought to, so far as attainable, be interpreted in a constant method’ (para 136).

Along with stopping fragmentation and norm battle, a mixed studying of the harmless passage regime of UNCLOS with a coastal state’s obligations below worldwide human rights legislation and transnational prison legislation has the potential to strengthen the safety of individuals at sea. But, there may be nonetheless an extended approach to go. Scripting this weblog publish has felt like constructing a home of playing cards. Not one of the components is secure—the harmless passage regime is fraught with interpretive challenges, human rights at sea is an idea nonetheless within the strategy of consolidation, and transnational prison legislation has hardly ever been studied in its interplay with harmless passage and the safety of individuals at sea. However even a home of playing cards, if constructed with the mandatory warning, care and time, can in the end stand. 

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This weblog publish relies upon work from COST Motion BlueRights, CA23103, supported by COST (European Cooperation in Science and Know-how).