1. Introduction
In March 2022, a comprehensive report was published by the House of Lords International Relations and Defence Select Committee (IRDC), which examined whether the United Nations Convention on the Law of the Sea (UNCLOS)Footnote 1 remains fit for purpose 40 years after its adoption.Footnote 2 A key question raised was whether UNCLOS does enough to protect human rights at sea.Footnote 3 In oral evidence to the IRDC, Professor Sir Malcolm Evans memorably observed that:
The convention has an awful lot more to say about protecting fish than about protecting people. That is one of its huge flaws. It is worse than that. Not only does it not say much that is helpful about it, but the way it approaches its zones of jurisdiction and the way it allocates flag State jurisdiction and says that the high seas are beyond jurisdiction makes it extremely difficult to apply other areas of law such as human rights law at sea.Footnote 4
This assessment captures the crux of the problem. UNCLOS was never designed as a human rights instrument; it was intended to resolve disputes over resources, navigation and coastal State jurisdiction.Footnote 5 Its core jurisdictional architecture—functional maritime zones, the primacy of flag State jurisdiction and the freedom of the seas—was developed without reference to human rights law, and often complicates its application.Footnote 6 Human rights law, by contrast, was crafted with land-based application in mind, presuming that individuals are located within a State’s territory or otherwise clearly subject to its jurisdiction. The maritime environment does not fit neatly into that model. At any given time, an estimated 30 million people—seafarers, fishers, passengers, migrants and others—are at sea, often far from their home States, subject to the jurisdiction of States with limited enforcement capacity or willingness or located in areas where jurisdiction is contested or unclear.Footnote 7 The result is that while it is now generally accepted that human rights law applies at sea, it does not apply in the same ways as it does on land. Context matters: the maritime environment shapes both the content and enforcement of individual rights.
This subject has become the focus of increased attentionFootnote 8 and various initiatives, including the soft law instrument known as the Geneva Declaration on Human Rights at Sea,Footnote 9 have emerged.Footnote 10 This article argues, however, that before practical solutions can be advanced, greater conceptual clarity is needed as to what constitutes a genuine human rights issue at sea. Not every adverse experience or substandard treatment amounts to a violation of international human rights law. Without this distinction, the debate risks conflating genuine rights violations with broader matters of safety, welfare or regulatory compliance. This article argues that identifying and defining human rights issues in the maritime context is a necessary first step before workable solutions—whether legal, institutional or policy-based—can be crafted.
The argument proceeds as follows. Section 2 explains the structural differences between the law of the sea and human rights law, focusing on their divergent approaches to jurisdiction and the conceptual and practical challenges this creates. Section 3 reflects on how ‘human rights at sea’ might be reconceptualised in light of these challenges, suggesting the need for greater conceptual precision and identifying the kinds of questions that must be addressed before meaningful solutions can be developed. In particular, this article dispels the false equivalence generated by the memorable but not entirely accurate idea that ‘human rights apply at sea, as they do on land’Footnote 11 and argues that the differences between the land and sea require distinct approaches to human rights protection.Footnote 12 It is concluded that effective solutions—whether they take the form of adapting existing rules and practices, or developing new ones—must take full account of the unique characteristics of the maritime domain.
2. The legal seascape
2.1. Jurisdiction at sea
This section examines the fundamental differences between jurisdiction on land and at sea.Footnote 13 On land, there is an assumption that a single State exercises sovereignty;Footnote 14 at sea there is an assumption that no State holds sovereignty.Footnote 15 Human rights law was developed against the backdrop of the former, whereas the law of the sea is structured around the latter. Under human rights law, States must protect the rights set out in the treaties to which they are party,Footnote 16 but only for individuals ‘within’ their jurisdiction. This creates a circular problem: a State must first be deemed to have jurisdiction before it can be held responsible for any failure to uphold its human rights obligations.Footnote 17 On land, this is likely to be obvious: an individual is either located within the State’s territory or not. At sea, by contrast, jurisdiction is organised through a zonal approach that balances the rights of coastal States with navigational freedoms and the primacy of flag State jurisdiction.Footnote 18 This framework complicates the application of human rights obligations and raises the question of which State is responsible for ensuring their observance. The extension of jurisdiction into the maritime domain reflects a carefully calibrated balance: on one side, the interests of coastal States in protecting their shores and exploiting the resources of their waters; on the other, the interests of other States in safeguarding navigational rights and the freedoms enjoyed by vessels flying their flag.Footnote 19
While UNCLOS contains provisions relevant to individuals in certain contexts, none explicitly integrate human rights considerations into its zonal framework. Instead, it fragments jurisdiction by allocating different competences to different States depending on the zone or activity.Footnote 20 These forms of jurisdiction often overlap or leave gaps, and do not align neatly with the forms of control over individuals that trigger human rights obligations. The result is that UNCLOS’ zonal approach to jurisdiction obscures which State bears responsibility for protecting human rights at sea and limits the mechanisms available to ensure their protection in practice.
The fullest expression of State sovereignty is found in internal waters, which lie landward of the baselinesFootnote 21 and include rivers, lakes and ports.Footnote 22 Ports are central to many of the issues at stake as they may exercise legislative and enforcement jurisdiction over foreign flagged vessels and can prevent them from departing.Footnote 23 In practice, however, port States—either as a matter of comityFootnote 24 or customary lawFootnote 25—refrain from exercising such jurisdiction except in limited circumstances, such as when an offence affects or threatens the peace and order of the port, the State’s vital interests are implicated, a request is made by the vessel’s master or flag State or a serious offence involving a national of the port State is alleged.Footnote 26 Human rights violations are unlikely to be perceived by a port State as affecting it in this way. Such matters are more likely to be regarded as part of the internal economy of the vessel and therefore more appropriately governed by the flag State, which retains residual jurisdiction over matters of internal order and discipline on board. This challenges the assumption that port State jurisdiction can fill enforcement gaps left by flag States. Moreover, the mere existence of a port State’s right to exercise jurisdiction does not translate into a corresponding duty to act, which limits its utility as a safeguard in a human rights context.Footnote 27 This is evident in the exercise of port State control under regional Port State Memoranda of Understanding (MoUs), where participating States may inspect labour standards and take action against non-compliant vessels.Footnote 28 For seafarers, for whom the ship is both workplace and home, such inspections are vital.Footnote 29 Yet, in practice, port State jurisdiction is invoked only in cases of very serious deficiencies.Footnote 30 This is a missed opportunity as it is easier to inspect a vessel in port than on the open sea.
In practice, the sovereignty that port States enjoy within their internal waters may give rise to human rights concerns, rather than alleviate them. This has occurred where port States exercise their right to control, or even deny, access to ports, ignoring the impact such restrictions can have on the human rights of those on board.Footnote 31 During the COVID-19 pandemic, some States closed ports to passengers, seafarers, migrants and refugees in need of urgent medical assistance, leaving many without access to basic necessities or healthcare and preventing their return home.Footnote 32 In the migration context, States such as Italy and Malta have denied entry to vessels carrying migrants and refugees, forcing them to remain on board unseaworthy vessels in appalling conditions. Italy has also designated disembarkation ports far from Mediterranean search and rescue (SAR) operations, thereby lengthening voyages, worsening onboard conditions and reducing the capacity of non-governmental organisations to respond effectively.Footnote 33
In the territorial sea, coastal States exercise sovereignty up to a maximum breadth of 12 nautical miles,Footnote 34 constrained by the right of innocent passage for foreign vessels.Footnote 35 The coastal State ‘shall not hamper’ such passageFootnote 36 unless it is ‘prejudicial’ to its ‘peace, good order or security’.Footnote 37 Article 19 UNCLOS lists activities that render passage non-innocent (e.g. fishing, threats of force), but none address the treatment of persons on board. The catch-all provision in Article 19(2)(l)—activities ‘not having a direct bearing on passage’—might be read to capture human rights considerations, yet the list is clearly oriented towards coastal States’ security. In practice, coastal States adopt a restrained approach, even though they retain criminal jurisdiction over vessels in their territorial sea.Footnote 38 Article 27 reinforces this restraint, providing that the coastal State should not exercise criminal jurisdiction on board passing vessels unless: the consequences extend to the coastal State; the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; assistance is requested by the vessel; or it is necessary for the suppression of illicit traffic in drugs.Footnote 39 In principle, jurisdiction could extend to ‘acts which have social, moral or other disturbing consequences for the coastal State’,Footnote 40 but there is little practice supportive of its application to human rights violations.Footnote 41 The effect is a fragmented jurisdictional seascape: authority exists, but its exercise is confined to categories that do not align with human rights concepts.
Outside the territorial sea, vessels enjoy the freedom of navigation.Footnote 42 Within straits used for international navigationFootnote 43 and in archipelagic waters,Footnote 44 UNCLOS establishes distinct regimes (transit passage and archipelagic sea lanes passage). These are more permissive than innocent passage because they guarantee continuous and expeditious transit and cannot be suspended by the coastal State. For present purposes, however, the human rights analysis remains the same: all these regimes concern transit through areas under coastal State sovereignty, so the same considerations that apply in the territorial sea also apply here, with the added point that the navigation rights of vessels are even more strongly protected.
In the exclusive economic zone (EEZ) and on the continental shelf, the coastal State’s enforcement jurisdiction over foreign vessels is tied to the protection of its resource rights: it has no authority to restrict navigation for other reasons.Footnote 45 This is underpinned by the principle of the exclusive jurisdiction of the flag StateFootnote 46 over its vessels, to which few exceptions exist.Footnote 47 In theory, the flag State’s law—including human rights law and that relating to ‘social matters’—applies on board.Footnote 48 In practice, however, many flag States are unwilling or unable to exercise effective jurisdiction and control over their vessels, which can operate at sea for years without returning to a port of the flag State.Footnote 49 The vastness of the oceans compounds these enforcement difficulties. This disconnect results from the fact that UNCLOS allocates authority by formal registration rather than by actual control over people—in contrast to the human rights model of jurisdiction. The permissive interpretationFootnote 50 of the ‘genuine link’ requirement in Article 94 UNCLOS has exacerbated this by encouraging the proliferationFootnote 51 of open registries that allow foreign-owned vessels to fly their flag in exchange for fees, typically featuring lower taxes, weaker laws and employment protections and lax enforcement—conditions that may foster or conceal human rights violations.Footnote 52
Jurisdictional problems are acute for persons on board vessels without nationality (flagless vessels) or who are in the water itself—situations common in irregular migrationFootnote 53 where boats are either unregistered by design or due to size and intended use, and often too small or unsafe for large numbers of people causing them to sink.Footnote 54 In such cases, an absurd situation is created where no State seems to be responsible for protecting the human rights of people at sea—often people who require special human rights protection, such as children, women, persons with disabilities or refugees. Efforts to close this jurisdictional gap by stretching doctrines of extraterritorial jurisdiction or proposing new jurisdictional rules have their limits and risk distorting existing law, as discussed in this section.Footnote 55
From a law enforcement perspective, Article 110 UNCLOS authorises warships or other duly authorised ships to board vessels without nationality on the high seas.Footnote 56 There is, however, no corresponding duty to do so where human rights abuses are suspected. Once a boarding occurs, it is recognised that the boarding State exercises effective de facto control over persons on board and thereby becomes responsible for their human rights.Footnote 57 In practice, however, this does not necessarily result in human rights protection. Interceptions of boats carrying migrants and refugees are frequently conducted for border control rather than humanitarian reliefFootnote 58 and have resulted in violations of the prohibition of collective expulsion and the principle of non-refoulement.Footnote 59 More problematically, States—now aware that boarding a vessel triggers human rights responsibilities—are increasingly avoiding close contact with such boats and are employing other techniques to deter migrants without having to engage with their human rights obligations (such as funding and training the Libyan Coast Guard (LCG) to interdict vessels before they enter European Union waters).Footnote 60
The situation is more complex when vessels carrying migrants are sinking. One might think otherwise since Article 98 UNCLOS imposes a duty to render assistance to all persons in distress—a duty that reflects customary international law and is reinforced by other treaties.Footnote 61 However, while the duty to rescue is clear and universal, its application through the International Convention on Maritime Search and Rescue (SAR Convention) and the system of Search and Rescue Regions (SRRs) introduces complications. The SAR Convention requires States to establish and operate SRRs and to coordinate rescue efforts within them. These SRRs, however, are functional zones of responsibility for rescue coordination only. The duty of States to operate SRRs does not automatically generate jurisdiction over vessels or persons within their SRRs.Footnote 62 Article II SAR Convention explicitly States that ‘[n]othing in the Convention shall prejudice the codification and development of the law of the sea by the [UNCLOS] … and the nature and extent of coastal and flag State jurisdiction’.Footnote 63 In other words, the establishment of SRRs does not extend a coastal State’s jurisdiction beyond its territorial sea. Accordingly, where shipwrecks occur on the high seas, coastal States do not exercise human rights jurisdiction over those in distress.Footnote 64 Although the duty to render assistance is not, strictly speaking, a human rights obligation, it is hard to separate the duty to rescue a person from drowning from the protection of their right to life—as is becoming increasingly recognised.Footnote 65 Coastal States are unquestionably required to establish effective SAR services, as a matter of treaty obligation under the SAR Convention, thereby ensuring protection of the right to life. The more difficult question concerns the consequences of inaction: can States be held responsible for violating the right to life by failing to render assistance?
The UN Human Rights Committee (HRC) addressed this in A.S., D.I., O.I. and G.D. v Italy, concerning a deadly shipwreck near an Italian warship within the Maltese SRR, with the Rome Maritime Rescue Coordination Centre (MRCC) being the first authority to receive the distress call.Footnote 66 In a remarkable—though not entirely convincing—decision, the HRC found Italy in violation of its obligation to protect the right to life on the basis of its knowledge of the distress and the proximity of the Italian warship to the shipwreck.Footnote 67 According to the HRC, this generated ‘a special relationship of dependency … between the individuals on the vessel in distress and Italy’, thereby bringing them within Italy’s jurisdiction for the purposes of human rights law.Footnote 68 The HRC’s reasoning drew heavily on the obligation of States to render assistance to persons in distress under the law of the sea, underscoring the need to move beyond a siloed treatment of human rights law and the law of the sea. At the same time, however, this approach produced an expansive interpretation of human rights jurisdiction that at times conflates jurisdiction under human rights law with that under the law of the sea, thereby risking the creation of unrealistic expectations of States without a sufficiently solid legal foundation.Footnote 69
In a more recent decision, the European Court of Human Rights (ECtHR or Court) examined Italy’s responsibility for the acts of the LCG, which had responded to a distress call initially received by the Rome MRCC.Footnote 70 The applicants argued that the victims of the shipwreck fell within Italy’s jurisdiction due to the financial and logistical support provided by Italy to Libya in managing migration, as well as the fact that the LCG operated under the instructions of the Rome MRCC. The Court declared the complaint inadmissible on the basis that Italy’s jurisdiction under Article 1 of the European Convention on Human Rights (ECHR) could not be established and concluded that the situation was governed by other international rules, such as the rules for SAR.Footnote 71 Whereas the HRC’s reasoning is more attuned to contemporary SAR realities, the ECtHR’s more cautious approach underscores that integrating human rights law with the law of the sea requires more than simply expanding or merging existing rules.
2.2. Considerations of humanity
One of the ways that human rights concerns are thought to enter the law of the sea is through the enigmatic phrase that ‘considerations of humanity must apply in the law of the sea, as they do in other areas of international law’. The International Tribunal for the Law of the Sea (ITLOS or Tribunal) first used this phrase in M/V “Saiga” (No 2), a case concerning the use of force against vessels.Footnote 72 ITLOS held that the principles of necessity and proportionality, found in the law on the use of force, should inform the interpretation of UNCLOS and that ‘all efforts should be made to ensure that life is not endangered’.Footnote 73 Later tribunals, including in The Duzgit Integrity Arbitration, suggested that this approach applied ‘to all measures of law enforcement’.Footnote 74
While this appears to signal a willingness to import human rights concerns into the maritime context, the foundations of this reasoning lie elsewhere. The principles of necessity and proportionality originate in the law on the use of force and in international humanitarian law—acting as limits on forcible acts. Such ‘considerations of humanity’ are not the direct application of the human right to life, but the borrowing of standards developed to constrain State conduct in armed conflict and enforcement operations. The result is a more limited form of protection. The terminology of ‘humanity’ is deliberately broader and vaguer than that of ‘human rights’, and the obligations it generates are correspondingly less precise. If these are taken as equivalent, their diluted nature risks undermining the absolute nature of certain human rights. If, however, they are seen as distinct, as argued in Section 3, then their relationship to human rights protections remains uncertain. Regardless, the jurisprudence demonstrates that existing approaches to fold human rights concerns into the law of the sea happen only obliquely, through principles designed for other regimes.
This is further demonstrated in the context of detention under enforcement measures permitted by UNCLOS, where the question of whether such detention could amount to a human rights violation remains unsettled.Footnote 75 Coastal States can arrest and detain vessels and crews engaged in prohibited activities in the EEZ. Article 73, however, requires that detention be followed by prompt release upon the posting of a bond and explicitly provides that ‘penalties … may not include imprisonment’. ITLOS has held that the temporary detention of a crew does not even amount to ‘imprisonment’Footnote 76 and proceedings can only be brought by flag States, not the detained individuals themselves.Footnote 77 ITLOS proceedings are confined to the interpretation of Article 73 and do not extend to broader human rights concerns.Footnote 78 Judge Treves, both in his separate opinions and his extrajudicial writings, has argued that the prompt release provisions do in fact establish ‘human rights and due process dimension[s]’Footnote 79—an approach which is more attuned to international human rights law.Footnote 80 Yet, this view has not gained full acceptance in ITLOS jurisprudence. A more open approach was taken in The Duzgit Integrity Arbitration Award noting that while the Court’s competence was limited to the terms of Article 73, nothing precluded interpreting these in light of broader international rules.Footnote 81 This suggests at least some potential for bridging the regime of the law of the sea with human rights norms, though the path remains under construction.
Recent developments reinforce this. In its Advisory Opinion on Climate Change and International Law,Footnote 82 ITLOS acknowledged that ‘climate change … raises human rights concerns’.Footnote 83 Judge Pawlak went further, suggesting that the Tribunal could have drawn more directly on the reasoning of human rights bodies in holding States responsible for the ‘adequate protection of persons against diverse impacts of climate change within the framework of international human rights law’.Footnote 84 However, more significant than the rights language itself was the interpretive method that ITLOS employed: it read UNCLOS alongside environmental treaties, allowing each to inform the interpretation of the other. A similar interpretative approach could be taken with human rights treaties too should ITLOS be presented with such an opportunity.
2.3. Summary
The challenges identified in this section show that the obstacles to applying human rights at sea are both fundamental and conceptual. The ‘seascape’ outlined in Sections 2.1 and 2.2 fragments jurisdiction across zones and activities in ways which do not easily align with the approach of human rights law of control over individuals. This poses significant legal challenges for upholding human rights law at sea and providing accountability for violations. The jurisprudence has indicated that UNCLOS can be interpreted in light of other international norms, including human rights standards, offering a glimpse of how these regimes could be better integrated in future. These developments reveal both the limits of the existing framework and the opportunities for innovation. The challenge, therefore, is to address the underlying conceptual issues to realise human rights at sea in a way that accounts for the structural realities and differences between human rights law and the law of the sea.
3. Reconceptualising human rights at sea
The challenges outlined in Section 2 show that applying human rights law at sea is not simply a matter of extending existing rules into the maritime domain. The maritime context generates distinct legal and practical difficulties which must first be clarified and recognised before any meaningful integration of regimes can take place. This section therefore raises two preliminary questions: first, what counts as a genuine human rights issue at sea? Second, how does the maritime context shape the way rights are understood? Only by addressing these matters can better standards and approaches begin to be developed.
3.1. What is meant by ‘human rights at sea’?
An unintended consequence of the growing interest in human rights at sea is that many issues presented as ‘human rights abuses’ do not necessarily amount to such violations. Not every adversity experienced at sea constitutes a breach of human rights.Footnote 85 This blurring of categories is one reason why the issue has been approached cautiously in both scholarship and jurisprudence. Concepts such as ‘considerations of humanity’ or the ‘protection of people or persons at sea’ have been used instead—terms which draw attention to serious problems but do not distinguish between these and human rights issues, raising the question: which acts genuinely amount to human rights violations in the maritime context? Seafarers’ employment conditions illustrate this difficulty. Seafarers are often exposed to delayed wages, inadequate supplies or poor work conditions. Yet while such treatment is troubling, it only becomes a matter of international human rights law where it breaches the threshold of rights recognised in treaties—for example, discrimination, forced labour or denial of the right to work or remuneration.Footnote 86 Likewise, breaches of International Labour Organization regulations may initially be matters of contractual or regulatory compliance, only becoming a human rights issue once a municipal remedy has been sought and declined.
Difficult questions also arise in the context of the relationship between international human rights law and the application of criminal law at sea. For example, the commission of a sexual offence on board a foreign flagged vessel passing through another State’s coastal waters does not automatically fall within the jurisdiction of the coastal State. It is neither a security issue affecting the territorial sea, nor does it impact the exclusive exploration and exploitation of the coastal State’s economic resources in the EEZ or continental shelf. Under UNCLOS’ zonal approach, criminal jurisdiction rests with the flag State, and the coastal State has neither the right nor the duty to intervene in the management of another State’s criminal processes. Only where a State’s failure to investigate or prosecute reaches the threshold of denying an individual’s rights under international human rights law—such as the prohibition of torture or inhuman or degrading treatment or punishment, or the right to respect for private and family life under the ECHR—might the matter acquire a human rights dimension.Footnote 87 Human rights law does not transform every criminal act at sea into a rights violation. Rather, it is a framework designed to secure systemic protection: to prevent the State itself from causing harm, and to require it to protect individuals against the wrongdoing of others, including private actors, where such regulation can be reasonably expected. The difficulty at sea is that UNCLOS’ jurisdictional framework, based on zones and flag State exclusivity, does not align with this functional test of control and protection.
If human rights law cannot cover every form of mistreatment at sea, how else might protection be strengthened? Is it necessary to frame everything within the human rights debate? This article argues that it is not and suggests that alternative approaches to improving regulatory compliance may offer more realistic means of safeguarding the rights and dignity of persons at sea. This approach takes account of the many actors operating at sea that may be responsible for violations yet are rarely held accountable for them. These include the operators and agents involved in the shipping, fishing, tourism or resource extraction industries. International law is cemented into the obligations of States. The law of the sea, for example, ‘has been designed by States for States’.Footnote 88 International human rights law was designed for humans, but ‘the centrality of States to the practice of human rights cannot be denied’.Footnote 89 Even in the context of positive human rights obligations, it is States who are responsible for failing to protect an individual from the wrongdoing of another individual.Footnote 90
It may, therefore, prove more beneficial to find means of improving regulatory compliance and holding private entities accountable for non-compliance. In other words, the same goal of elevating the treatment of persons at sea might be more feasible through non-traditional, private means in this context. One way could be through enhanced corporate responsibility as is promoted through the UN Guiding Principles on Business and Human Rights, which require businesses to respect human rights.Footnote 91 While States remain central in regulating corporate conduct, strengthening corporate accountability provides an important complementary tool for addressing the daily vulnerabilities faced by persons at sea—and may, in practice, prove more effective than relying on State obligations under human rights law.
3.2. The seascape context
The slogan that ‘human rights apply at sea, as they do on land’ has been used to raise awareness of the issue,Footnote 92 but it risks obscuring the important legal distinctions which must be maintained. While it is no longer credible to deny that human rights law should apply as much at sea as it does on land, this does not mean that the manner and extent of its application will be identical. Can, for example, access to: healthcare (the right to health); education (the right to education); places of worship (the right to freedom of religion); or the internet (the right to freedom of expression and to access information) be guaranteed in the same way at sea as on land? The seascape simply poses additional challenges which frustrate achieving these in the same way as on land. Even on land, the enjoyment of rights differs depending on the geographical context, i.e. between metropolitan areas and remote parts of the countryside. The differences between the land and the sea are greater if one considers the weather conditions, the lack of infrastructure and the long distances at sea.
The ECtHR has already noted that the application of the ECHR at sea may be subject to ‘wholly exceptional circumstances’ that require adjustments to avoid unrealistic expectations of States.Footnote 93 This is not to say that the Court introduced exceptions to the application of human rights at sea but, rather, adopted a more practical approach to their protection.Footnote 94 For example, the requirement to bring a suspect ‘promptly’ before a judge is applied more strictly in cases of arrest on land than at sea, where transfers typically involve complex logistics, poor weather conditions and lengthy voyages.Footnote 95 The Arbitral Tribunal in the Arctic Sunrise case also recognised this variable standard of protection with the seascape in mind.Footnote 96 This case concerned Russia’s actions against Greenpeace activists that were protesting about a Russian oil rig and had climbed it to erect a banner to prevent its operation. The Arbitral Tribunal concluded that it could ‘have regard to the extent necessary to rules of customary international law, including international human rights standards, not incompatible with the Convention, in order to assist in the interpretation and application of the Convention’s provisions’ concerning Russia’s enforcement action against the vessels and individuals involved.Footnote 97 Consequently, it thought that ‘the right to protest is not without its limitations, and when the protest occurs at sea its limitations are defined, inter alia, by the law of the sea’.Footnote 98 According to the Arbitral Tribunal, these limitations included the central principle that the seas ‘shall be reserved for peaceful purposes’ onlyFootnote 99 and also the right of a State to establish installations for the exclusive exploitation of its economic resources in UNCLOS.Footnote 100 Consequently, Russia was able to pursue, arrest and detain those involved, but the noncontinuous manner of its pursuit was contrary to the right of hot pursuit, such that the tribunal did not need to examine the reasonableness of the detention of the individuals and its relationship to human rights standards.Footnote 101 While the Arbitral Tribunal did not directly adjudicate human rights claims, it was willing to use human rights principles as interpretive guidance when applying the law of the sea.
This indicates that the seascape shapes how rights are understood and applied, even if only indirectly, and that considerations at sea differ markedly from those on land. Expectations of conduct are distinct, and actions at sea can have more immediate and lethal consequences—whether undertaken by States or by individuals. All this serves as a ‘reality check’ for every effort to apply human rights at sea from both a theoretical and a practical point of view.
3.3. Summary
The motto ‘human rights apply at sea, as they do on land’ has been a valuable starting point for raising awareness of the protection of persons at sea. However, it overlooks the legal nuances and operational complexities central to this area. Upholding human rights at sea requires careful differentiation between genuine rights violations, regulatory or welfare issues and the commission of crimes, while also acknowledging the unique characteristics of the maritime context. International human rights law is engaged only in specific circumstances and cannot serve as a panacea for all wrongs at sea. Its application at sea likewise demands adaptation to the distinct challenges of the seascape.
4. Conclusion
This article has shown the difficulties in applying human rights law at sea. The law of the sea and human rights law approach the question of jurisdiction, and the resultant State obligations, from different perspectives. Integration is, therefore, challenging and requires some nuance and deftness. For this reason, forcing all problems into the language of human rights law is unhelpful: it risks obscuring complex legal matters and practical realities. In formulating future solutions, it is essential to be more precise in identifying genuine human rights violations and to distinguish them from other grievances, such as regulatory failures or crimes. Greater sensitivity to the maritime context is required, with closer attention to the specific challenges of the seascape and the need for workable standards from which people at sea can benefit. The goal must be practical solutions—ones that States, shipowners and industry actors can realistically implement. This may involve recognising that existing legal frameworks have limits and that new approaches tailored to the maritime environment will be necessary. Helpful initiatives are already emerging, such as proposals for a UN Special Rapporteur or a UN Working Group on Human Rights at Sea, and the reflections in this article are intended to contribute constructively to these efforts.Footnote 102 The task ahead is to ensure that human rights are not only invoked at sea but firmly anchored in the seascape.
Acknowledgements
The authors wish to thank the anonymous reviewers for their insightful feedback which has sharpened the analysis in this article. We are also grateful to Cardiff University for the sabbatical leave that supported this work, and to the Co-Editors for including our article in this inaugural ICLQ Forum.
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