Thanks very much for the introduction and thank you all for attending either virtually or in person.
It's great to have an opportunity to come and talk about some of the research that I've been doing recently.
So as Natasha mentioned in the introduction, amongst the various hats I wear, I am currently a trustee for the NGO of Human Rights at Sea,
and one of the reasons I'm in the UK at the moment is that there's going to be a conference on human rights law at sea at Wilton Park from Monday,
Wednesday of next week, which I'm attending. And this is a follow on partly from the UK House of Lords inquiry into unclosed,
whether it's still fit for purpose and thinking about a range of different issues, one of which was the Human Rights at sea angle.
So this is sort of why I'm here and why I thought it might be interesting to talk about the Geneva Declaration on Human Rights at Sea,
which was the brainchild of the founder and CEO of Human Rights at Sea, David Hammond.
It was drafted by various international lawyers,
and I thought what I would cover for this evening's purposes, if I can advance there it is on the screen.
I'll just give you a little bit of a background to that instrument in terms of why it was adopted, what it actually looks like.
Give you some idea of some of the the different ways that human rights law interacts with the law of the sea.
But what I mostly wanted to focus on was really the very fact that we've got what's a soft law and informal
agreement and how that sort of fits into what we understand lawmaking to be in international law.
So given that this is an NGO initiative, where can this realistically go from here?
So in that respect, I compare it to some other instruments that was sort of NGO initiated and where they ended up and how they compare.
And also consider the different options for informal lawmaking when compared to our formal law
making processes and see if there's some ways that we can consider similarities or potentials.
So well, spoiler alert it's a mixed bag on where that's going to end up, so there's definitely some work to do.
So just by way of background to the Geneva Declaration, as I mentioned, this at the moment is purely an NGO based initiative.
So it was drafted by a half a dozen international lawyers, including Professor Stephen Haines,
Professor Irini Papa Nicole Upolu, Sofia Gilani, Ana Petrick and Elizabeth Metropoles.
So and also David Hammond involved as well.
So it was also vetted by various solicitors who were working who are different law firms by human rights at sea.
So there was considered a need to have an instrument that deals with these issues,
particularly just because of the scale of human rights violations that are occurring at sea.
So it's been estimated there are about 30 million people at sea at any one time.
So amongst all of those people at sea, obviously a large portion of those people are fishers.
There have been concerns about essentially modern forms of slavery amongst the fishing industry,
the issues for seafarers who are on cargo ships and their conditions of work,
particularly during the pandemic, where seafarers were unable to leave their ships and go offshore.
Discrimination about their work conditions at the time also issues when you think about all the passenger liners, not just the passengers,
were all stranded because of COVID, but also issues about sexual assault that happens somewhat frequently on cruise ships.
And then what happens there in terms of bringing perpetrators to justice, providing remedies to victims of sexual assault in those situations.
So there's been quite a lot of evidence coming forward about a range of different human rights violations that occur at sea.
But the problem is because it's happening long distance from shore,
there's this idea of sea blindness that it's not immediately confronting to people in any particular country.
So it's sort of like what we don't know. We don't really have to do anything about it.
So part of the. The idea with the Geneva Declaration is really to bring these issues front and centre.
So in terms of the Geneva Declaration itself, it's not set up.
Like, you know,
if you think of the Universal Declaration on Human Rights and how it's about sort of a grand statement about all these different human rights,
this document is framed differently. So after a foreword, it has four fundamental principles that are the key point of focus.
So that up on the slide here, the key point being human rights are universal.
They apply at sea as they do on land that all persons at sea without distinction are entitled to their human rights,
that there's no maritime specific reason for denying them.
So just because you're on the ocean, that is not a reason to deny human rights.
And that all human rights established under both treaty and customary international law must be respected at sea,
so for relatively basic principles on their face.
So that's sort of the core of the Geneva Declaration.
And then there are three annexes to the document as well.
So Annexe, I kind of goes through in more detail the range of different human rights abuses
that are occurring at sea beyond those that I mentioned to you just previously.
So that way it provides sort of a factual basis for why this instrument is needed.
Annexe B then lists out various international human rights treaties that are applicable.
Obviously, the International Covenant on Civil and Political Rights Convention on the Rights of the Child also,
and particularly for seafarers, the International Covenant on Economic and Social Rights.
And then there are some maritime specific treaties as well, such as the Maritime Labour Convention,
as well as the Working Work in Fishing Convention as well.
Also, obviously regional human rights treaties might also be relevant and there's a
whole series of rights that could potentially apply in different settings at sea.
So Annexe Sea is the one that I was probably the most interested in as a law of the Sea person,
because these are the guidelines for promoting compliance with human rights at sea.
And that's where we start getting some details set out about how we might expect flag states,
coastal states, ports states to address potential violations of human rights at sea.
These guidelines that are done in a way that they should be accessible to anybody who reads them.
So it's not a document specifically for lawyers. It's for somebody who's working in a port who wants to pick something up and
just try and understand what these issues might be and how they might apply.
So it hasn't got quite the nuance that we might expect as a legal instrument as such.
But it is supposed to try and give a fairly strong indication of what the different
human rights laws that apply or what the good practice is in that setting.
So in terms of how it all interacts with the existing law of the sea, I don't as I said, I'm not going to go into detail on that.
I have written about that recently in the Ocean Development and International Law.
So if you are keen, you can have a look at that.
I just wanted to mention three particular issues, just to give you a sense of what we do need to think about as lawyers,
if we're trying to work out more the technicalities of how this is going to work.
So one of the issues is around this concept of effective control.
So any of you who've sort of looked at the extraterritorial application of human rights,
you know that what we tend to talk about is does a state have effective control over individuals at the time?
That is the basis by which different international and regional courts have established jurisdiction.
So we've seen that in relation to the ICCPR. We've seen that in relation to the Convention Against Torture.
And certainly the European Court of Human Rights has relied on this test of effective control as a means of establishing
that they have that state has jurisdiction and that the matter can be rightly decided by that particular body.
But one of the questions that comes up is, well, is this test of effective control.
Is that really just for establishing jurisdiction of those particular bodies,
or is it a test that we can use to establish the human rights obligations owed?
So we need to stop and think, is this actually are we using one particular tool in a very different setting, which is not what was intended?
I think there's obviously going to be room for discussion around this,
but if you figure that we kind of went with the effective control doctrine on the idea that,
you know, this should not be a place where states can violate human rights with impunity.
I think the same reasoning kind of holds when we think about, well,
should we have an area out on the oceans where states could potentially violate human rights with impunity?
So the reasoning might still be the same. But the point I don't think is entirely settled and needs to be considered a bit further.
Second, also, there are issues of concurrent jurisdiction that happen once we start talking about incidents at sea.
So imagine quite easily. I'm sure you have a Dutch flagged vessel which is run by an NGO that has picked up a large number of
migrants who were fleeing from Libya and they are now trying to take the migrants into port in Italy.
So in that scenario, will, which state is going to have responsibility?
Is it the Netherlands? Is the flag state on which the migrants are?
Is it Italy where they want to seek asylum? Is it Libya, which is potentially ostensibly the flag state when they left Libya at that time?
So there's always going to be situations potentially of concurrent jurisdiction depending on where a vessel is,
where the people are on what ship that is flagged.
So that in itself is a common situation in international law.
But what we see happening in the human rights context is that one state will assume that the other state is
going to exercise jurisdiction and it's used as a way of not actually pursuing the human rights claims.
So the guidelines admonish flag states not to abdicate their responsibility to respond as appropriate to any human rights violation on its ships.
And equally, a port state should not abdicate its responsibility to respond to any human rights violations occurring within its jurisdiction.
And then another point which still really needs to be resolved relates to this idea about where a port state,
for example, might have a right to exercise jurisdiction but isn't required to exercise jurisdiction.
So we talk a little bit and the Law of the Sea about when a port state might have jurisdiction to deal
with actions that have happened sort of on the high seas outside areas of national jurisdiction.
And we say that there are some incidents like when there's been pollution, for example,
where the port state could potentially act or perhaps it's illegal fishing and they might be able to act.
So there is an argument that, for example, that arena parking lot please put forward that,
you know, port states may well have jurisdiction to do this.
But the question is, well, even if you say, well, sure, maybe they can, but are they obliged to exercise jurisdiction?
I think that brings us a bit more into to human rights law in terms of, well,
if this is happening within your territory, must you act to provide the remedy and to prevent human rights violations?
Anyway, I said I wasn't going to spend too long on that, and I probably already have.
So let's move on to concentrate more on this idea of informal lawmaking and
what it means and what it might mean for the Geneva Declaration in particular.
So once we start talking about informal agreements,
it's this idea of creating shared expectations as to the standard of conduct in relation to a specific international issue.
So. If that's the informal agreement that we're dealing with an instrument that is not legally binding,
then the process of informal lawmaking can be defined in different ways and used.
Palin has worked with various colleagues to come up with a useful definition,
which I've paraphrased here, which is in formal lawmaking and international law,
involves the process of international cooperation to reach agreements other than treaties between public authorities,
with or without the participation of private actors or international organisations in varied institutions and networks.
So what we're seeing potentially with informal lawmaking is it is potentially different actors who are involved.
It's a different output to what we might normally expect.
So it's not necessarily a treaty that comes out the end and then the process or the venue by which it's done is is not your typical venue,
as we might expect. One thing to note here is that in the discussions by Parliament and colleagues,
they talk about agreements between public authorities and that is a relevant consideration when you're thinking
about the Geneva Declaration being an initiative of an NGO private organisation and what that might mean,
because generally we see that with informal agreements. So this is an opportunity for a wider set of stakeholders to be involved in lawmaking.
So it's a chance for non-state actors to be able to contribute information as to why states should act in particular
situations and deal with a range of of particular issues so it it can enhance good governance through improved transparency,
by facilitating information sharing, distributing responsibilities and accountabilities, and also enhancing cooperation.
So just to then take some examples of where we've had NGOs very much involved in the international law making.
This isn't a new phenomenon by any means.
If you go back to The Hague peace conferences, civil societies were involved at that particular time in in the discussions.
So.
We also know, though, that the engagement of civil society actors, of course, is limited by the traditional state centric aspect of international law.
But really, since the time of the Cold War ending,
there has been a lot more opportunities for NGOs to be able to engage in international fora with diverse and also with like minded states.
So I'm sure you can probably all think of examples of treaties where NGOs have been quite involved,
whether it was during the negotiations for the ICC statute, for example,
obviously the trachea, the Ottawa Convention on Banning Landmines, the Convention on Cluster Munitions,
and then most recently, the Treaty on the Prohibition of Nuclear Weapons.
NGOs were also very involved in the development of the Convention on the Rights of Persons with Disabilities and also the 2000 Kimberley Process,
which was dealing with trade in conflict diamonds as well.
But I wanted to focus particularly on these three treaties you see here, the Ottawa Convention, the convention on Cluster Munitions,
and the Treaty on the Prohibition of Nuclear Weapons, because I believe that's these three where it was the NGO that really started the process.
And I think for that reason, it's interesting to see, well,
what was the journey that was taken in this idea coming from an NGO and how did we end up with a treaty?
Is this a path that we could see for the Geneva Declaration?
So if we consider some of the characteristics of the Ottawa Convention,
the Cluster Munitions Treaty and the Nuclear Ban Treaty and the lawmaking process, there are some commonalities in each instance.
The core message was quite simple and unambiguous.
It was about banning a weapon. What had to be done banning what was targeted as a weapon?
Very clear.
So and certainly in the context of the Nuclear Weapon Ban Treaty, the core content was already very well known throughout societies as well.
But I suspect that the core message of the Geneva Declaration actually lacks this simplicity.
I mean, I said this those four fundamental principles, right?
So human rights apply at sea just as they do on land.
Sure, we can accept that it shouldn't be a difficult proposition, but it kind of begs an initial question about, you know,
are we saying that that human rights don't apply or are we really just saying that human rights are not enforced at sea?
And so really, it's just an issue of implementation rather than an issue of principle itself.
And then, of course, the question is, well, what human rights we're really talking about?
We know international human rights law is a vast area of law, that the individual rights within then each have their own sort of vagaries,
their own particular content, their own little exceptions that might apply in certain circumstances.
So as such, it doesn't make the Geneva Declaration on Human Rights at Sea, I think, as straightforward as this idea of a ban on a particular weapon.
Obviously, each of those treaties then ended up having their own fine points that that happened.
But it was a starting point with a simple and unambiguous message.
Also, for each of these three treaties, the economic costs were relatively low for some of the stakeholders.
So arms manufacturers who were making the landmines or making the cluster munitions,
they were still making lots of other weapons anyway that weren't going to be banned.
So there was still money in them. Nuclear weapons, primarily a state based business, if you like.
So there weren't really private groups operating in opposition to the NGOs pushing for these different bans.
So the economic situation for human rights at sea I think is quite different.
Shipping and fishing companies are highly incentivised to keep their labour costs low,
so cruise companies don't want their profit margins affected if it's going to be widely known that assaults are occurring during their cruises.
Consumers will be negatively impacted financially if the prices of goods increase because of shipping costs,
if seafood becomes more expensive, if cruises become luxury holidays.
So states also have potential economic costs to bear in disrupting transnational crime
operations if they're going to be rescuing migrants or people who are being trafficked.
And in monitoring and prosecuting human rights. Pieces that have occurred on their ships or in their waters.
So, again, another difficulty for the Geneva Declaration.
Also what we saw with the Ottawa Convention and Cluster Munitions and Nuclear Ban Treaty
was that they were each endorsed and there was engagement with like minded states.
And achieving state buying can be critical really to the success of an NGO effort to secure the adoption of an international instrument.
That's certainly something that human rights at sea, the NGO is hoping will happen with the Geneva Declaration.
And there's perhaps some signs that some countries are interested, but we're not quite there yet.
It might still happen. Now, also, though, with some of these different campaigns, there have also been security and political concerns.
And with each of these sort of treaties that were banning weapons, it was easy, relatively speaking,
to run a campaign about the humanitarian side that could outweigh perhaps the security concerns that existed.
So the debate was recast by the NGOs,
by the like minded states as something that was political and humanitarian and allowed for greater
engagement beyond the military elite and beyond looking purely at these questions from a security basis.
So focusing on human impact may allow for a debate to be reframed from questions of military or security advantages to one concerned with justice.
But the opposite might well be true when we get to human rights at sea.
As I mentioned, there are economic concerns here.
And also we know from states practice, particularly in the migration context, there is a preference to securitise issues related to migration,
not to favour the human rights orientation where there are options to think about the humanitarian sides.
States are instead emphasising the importance of their security and their border security, most particularly.
So I think by way of benchmarking with these other lawmaking processes,
it's not immediately evident that the Geneva Declaration will progress to a treaty.
But all is not lost. There are other ways that informal lawmaking might still have an impact.
So when we start thinking about the traditional approaches to lawmaking and how
international law is formed and we end up with treaties and customary international law,
we know that informal agreements can have an impact in different ways.
So the informal agreement can be taken into account in treaty interpretation, potentially, because they provide us with the context of a treaty.
It tells us what perhaps the current expectations are.
So that might be one possibility. If we try to look to some of the other aspects of treaty interpretation,
we start running into a little bit more difficulty because if we start thinking about informal agreements as a subsequent agreement,
what we're actually looking for is a subsequent agreement between the parties
regarding the interpretation of the treaty or the application of its provisions.
And the Geneva Declaration is not a subsequent agreement between the parties.
States would need to endorse the Declaration, perhaps as a U.N. General Assembly resolution, to get kind of close to that.
Informal agreements might count as subsequent practice,
but only in the application of a treaty which establishes the agreement of the parties regarding its interpretation.
And an instrument adopted by an NGO doesn't count in that regard.
And similarly, even when we get to considering systemic integration,
so this idea that we should look at all the treaties that are all applicable and try and interpret them all together,
yes, that works when you're looking at treaties. But the idea of systemic integration,
as it's phrased under the Vienna Convention on Law of Treaties is that they're looking for agreements that are applicable between the parties,
and a query might be raised that an informal agreement is not applicable precisely because it's not formally binding as such.
So there's some little possibilities there. But also again, we run into some roadblocks.
Now, there is a possibility that an informal agreement may be a prompt for state action and could potentially contribute to state practice.
So an NGO doing something in itself, obviously the NGO is not a state, so therefore it cannot be state practice.
But what we have seen happen on occasions is that because of the advocacy positions that NGOs have taken that compels the state
to respond and the response of the state is then the practice that can become relevant in terms of customary international law.
So we saw this in, I mentioned the example of Italy previously,
so where the Italian courts essentially had to come forward and say, well, yes, people are allowed to enter port in distress.
So the court was essentially affirming a position under customary international law based on the actions of NGOs going into port,
claiming that they were in distress at the time.
Now beyond the the interaction with formal international law, I think we actually still need to look a little bit more broadly than that.
So we know in the Law of the Sea and actually in many different areas of international law,
that informal agreements are being used more and more, perhaps because we've got treaty fatigue,
that there's perhaps too much dissonance between states these days to be able to reach a new treaty,
which I'm sure we'll overcome for the plastics treaty, no doubt.
So the fallback position in those situations is to look to informal agreements.
They can be easier. The political costs are lower.
So in this book, the unconventional lawmaking book,
the contributors and I would go through and we've looked at the full range of different informal instruments that exist within the Law of the Sea.
And what we notice that cutting across this process of informal lawmaking and the variety of outputs is what we described as sort of normative intent,
the normative effect. So, for example, a process may have normative intent, that is the actors or sorry,
a process may not have normative intent where the actors do not want to create a formally binding law,
but it might ultimately still produce normative effect.
So the standards may still form the basis of a treaty or state stop acting that way because they believe they're legally bound to do so.
Or there might be normative intent amongst the actors they want to form law,
but ultimately or to date, no normative effect is actually achieved despite the earlier intent.
So in those different scenarios, we might see normative value emerging so we can get normative effect, I think in two potential ways.
The first one more difficult, I think for the Geneva Declaration is within the UN Convention on the Law of the Sea.
We have a number of different rules of reference and they allow us to refer to generally agreed international regulations or rules and standards,
and that provides a way to bring in standards that are not legally binding,
that they become binding by virtue of the fact that they're generally agreed and unclosed makes them binding.
But so far the way that we have seen that happen has been in the context of or the expectation that it
would be a recommendation that's been adopted by the IMO some sort of intergovernmental organisation,
not again, this NGO initiated process.
And more interesting example is perhaps with the San Remo manual,
which is a adopted in 1994 under the auspices of the San Remo Institute for International Humanitarian Law.
So the San Remo Manual basically is intended to be a restatement of the laws of naval warfare.
So those laws were once adopted back at the time?
Well, in the early 1900s, I think it was.
But what's interesting about the San Remo manual is that it was a number of different private individuals who got together and said,
Alright, what do we think the modern laws are? Let's write them down, let's explain why we think that is the way it is.
And we see this happening in international humanitarian law bit at the moment with the Tallinn Manual, the Woomera Manual, for example.
This is a way that private individuals are being involved in setting out the law.
Then what happens, even though they're the private individuals who have done that, is that that is getting followed up within national laws.
So at the San Remo Manual,
various of its provisions have found its way into the different like codes that the naval legal officers follow in different settings.
So perhaps this is something that might happen with the Geneva Declaration if we see if it's set up in
such a way that you have port officials or naval officers or other legal officers who look at it and go,
Alright, we can just incorporate this into our domestic law.
In that way it becomes binding and in the end that will be enough without having an international instrument.
There is also examples of normative intent that can be detected within the Geneva Declaration.
Mostly it purports to to say that we're restating what existing international law is.
We're just putting it all together in a very digestible way.
But within the different guidelines that are set out in Annexe C, there's also this idea that there's good practice that is happening as well.
So perhaps not what is accepted as law, but again has that sense of like surrender.
This is what it should be in the future. So good practice for flag states.
Flag states to seek to ensure that the masters of all vessels cooperate with coastal or port states to ensure
compliance through to now good practice but emerging practice that when a coastal state is issuing a license.
To a vessel that it can come and fish within its exclusive economic zone,
that in the conditions of the licence, that they will include adherence to human rights standards.
And then that would mean the coastal state can go and enforce those license requirements under Article 73 of UN place.
So again,
we can sort of say that with this normative intent there's an idea that these are things that are going to be taken into the national laws of states.
So I think in terms of our future options for the Geneva Declaration, really what is critical is thinking about the awareness raising,
which is just a critically important aspect of the Geneva Declaration,
but also thinking about the capacity building that is going to be necessary or partnerships that need to be undertaken with states
to be able to understand that this is something that is happening and that needs a response from states in different contexts,
from sort of more legal academic perspective.
I think as you might have gathered in terms of the the guidelines that are set out in Annexe C,
I do think that there would be some benefit in trying to actually do that in a much more legal way
where we deal with the nuances and we deal with some of the difficulties around jurisdiction.
Maybe that is something that could be usefully studied by a committee of the ILO or
within the IOC if we were to think of a particular treaty that might be needed.
I think mostly we don't need another treaty in this area.
We've got the human rights treaties, but perhaps the one little gap that we have that could be usefully filled is
really this question around port state authority and port state responsibility.
So maybe following something along the Port State Measures agreement,
but actually going a bit further because the port state measures agreement gives
port states authority to inspect vessels that are suspected of IUU fishing,
but then they have to refer the matter to the flag state.
So it would be better, I would think, if the port state could actually or should actually exercise jurisdiction itself.
So there are potentially a few different ways forward.
So as described in its forward, the Geneva Declaration is said to be a concise refocusing of existing international law.
And what the Geneva Declaration is trying to do is explain how this operates.
So connecting international human rights law with the law of the sea, it can be done, even if it's perhaps not as straightforward as it might seem.
At first blush, I think, given the ongoing failures of some flag states to protect human rights.
There is a need to really consider how other states may be empowered to take action to promote human rights.
And the Geneva Declaration does indicate how this may be possible.
And I think we need to think further on how we could have a situation where states are required to take action to protect human rights.
And as with so much of international law and particularly international human rights law,
much is going to come down to the readiness of states to align that conduct with existing international standards.
Certainly that willingness needs to exist if we are going to try and advance this particular issue.
But given that we're dealing with 30 million people who are on the seas and the vast majority of those are actually fishers,
then we really need to make a stop in doing something about this problem.
So I think the Geneva Declaration is important for that reason.
But I will leave it there, and I'm interested to hear your questions and and thoughts on all of that.
So thank you for your attention.