The Law of the Sea and Human Rights
| Autor | Sophie Cacciaguidi-Fahy |
| Cargo | Professor of the Law Faculty of the National University of Ireland, Galway; French Book Review Editor, International Journal for the Semiotic of Law Deputy Editor, Legal Semiotics Monographs, Deborah Charles Publications |
| Páginas | 1-21 |
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The law of the sea, including admiralty law, is “as old as humanity’s use of the sea” and yet little attention has devoted to its humanitarian customary practices and codes.1 Many scholars, who have commented on the origins of modern international law, trace its origins to Grotius’ Mare Liberum, which itself defines “the law of the sea as one of the ‘original’ fields of international law”.2 Others who have scrupulously traced the origins of human rights law, both international and municipal, in natural law, in the French Declaration of the Rights of Man and the American Bill of Rights likewise contend that international human rights is younger than the more modern law of the sea. In that respect, as argued by Oxman, the law of the sea, its instruments and institutions have not only a direct contribution to make to human rights law but in some instances are sufficient to protect individual human rights.
Many legal commentators have argued that several provisions of the UNCLOS articulate human rights principles which are to date still not used effectively and to its full potential by the human rights community.3 As discussed by Oxam, the primaryPage 2 purpose of the Convention is to uphold the universal rule of law4 and provide effective governance at sea.5 It allocates authority to govern and imposes qualifications on that authority. It mandates the rights and duties of States in a precise codified form, converting those rules into binding treaty obligations ratified by government pursuant to their constitutional procedures.6 Governance is clearly codified with respect to flag States of ships and coastal Sates. Yet as he so pointedly argued,7
[T]he Convention as a whole seeks to advance the interests of humanity by establishing a “legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their resources, and the study, protection and preservation of the marine environment” and by contributing “to the realization of just and equitable international economic order which takes into account the interest and needs of mankind as a whole”.
He further contends that the Convention not only acknowledges but actively “seeks to advance certain specific community interests” which have been associated with ‘affirmative human rights’.8 These rights are in fact complex and quite difficult to identify. They mostly concern the relationship between human rights and the underlying concepts of community rights in general, or common cultural or environmental rights, common heritage of mankind under international law which gives rise to what may be properly called the right of an individual. Their distinction is not easy to make. These rights are not generally enforceable by or against individuals under the Convention, but are in fact articulated as duties to be respected and enforced by States and other parties to the Convention.
One of these affirmative human rights principles - expressed in the Convention as a duty - is to be found in one of its most elaborate provisions: Article 98.
Article 98. Duty to render assistance
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Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers;
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(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;
(c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.
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Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements co-operate with neighbouring States for this purpose.
Article 98 addresses the obligation of ships to assist vessels in distress or shipwrecked persons. It aims to implement the concept of the safety of life at sea, in other words the protection of life at sea. The duty it refers to is known as the duty to render assistance. This duty purports to provide humanitarian assistance to any person in danger at sea regardless of their legal status, in whatever circumstances, whether in time of war or peace and in whatever parts of the world. It is a well-established legal principle of the law of the sea. Its legal basis has deep roots in customary and humanitarian law principles, in the history of the law of the sea.
Over the last three decades, many of the important human rights issues and in particular humanitarian crisis have been played out at sea; and indeed the sea and international trade are the main conduit for people trafficking and some appalling human tragedies.9 These have led to calls for increase protection and human rights initiatives, particularly with respect to the 1951 Refugee Convention.10 Yet, it would be wrong to embark on initiating changes in refugee law without first looking at the protection which instruments of the law of the sea may already offer. Namely to first learn the lesson from the very long experiences of humanitarian practices which the law of the sea affords and which have been very effective in time of humanitarian crisis at sea; and secondly, to ensure that there are no lacuna in these instruments that allow state parties to avoid their international and human rights obligations; andPage 4 thirdly, if such lacunas exist, how does the law of the sea resolve or at least attempt to resolve such lacunas.
This article examines the law of the sea and some of the human rights considerations which it addresses. Specifically, the article explores the protection of life at sea expressed directly or indirectly in various legal instruments of the law of the sea. Part I examines the origins of humanitarian obligations at sea. Part II discusses the legal framework of the law of the sea protecting life at sea provided for by the 1982 United Convention the Law of the Sea,11 the 1974 International Convention for the Safety of Life at Sea12, the 1979 International Convention on Maritime Search and Rescue,13 the 1989 International Convention on Salvage,14 and the 1958 Geneva Convention on The High Seas.15 In this context, I will address the duties of a Master to protect life at sea by providing assistance to persons in distress along with the obligation of flag States and coastal States to equally protect life at sea by providing rescue. I will also briefly explore the long standing maritime tradition of the concept of place of safety or refuge and their implications for the question of innocent passage and disembarkation; and the role of the IMO with concern to the protection of life at sea. The article concludes by examining the international and European jurisprudence with respect to the law of the sea and human rights in general.
The obligation of rendering assistance to those in peril or lost at sea is one of the oldest and most deep-rooted maritime traditions.16 For centuries, seafarers have considered it their duty to assist fellow mariners in peril on the high seas. Today, itPage 5 has become more than just a moral obligation; it is now codified in international treaty law and is considered to form part of customary law.17 In the mid-19th century, one British mariner in five died at sea. Mortality among sailors was higher than in any other occupation and between 1861 and 1870, 5,826 ships were wrecked off the British coast with the loss of 8,105 lives.18 It was against this background that the legal obligation of rendering assistance at sea was recognized in 1880 in the Scaramanga v. Stamp case:
To all who have to trust themselves to the sea it is of the utmost importance that the promptings of humanity in this respect should not be checked or interfered with the by prudential considerations which may result to a ship or cargo from the rendering of the needed aid.19
This basic precept of British common law was subsequently codified in a number of international Conventions, which well preceded any of the more modern human rights instruments. The first to acknowledge the principle of rendering assistance at sea was the 1910 Brussels Convention on Salvage.20
The principle of humanitarian assistance at sea, aimed at saving life, uses basic human rights principles as its foundation; in particular the protection of the right to life, the right to dignity and humane treatment. Its present normative frameworkPage 6 applies to States and the seafaring communities.21 It is provided for by the 1982 UNCLOS, the 1974 SOLAS, the 1979 S.A.R, the 1989 SALVAGE, and to a certain extent by the 1958 Geneva Convention on The High Seas.22 These five...
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