Author: Bruno Acevedo**
| Jurisdiction: International |
Topics: Human Rights |
This post summarizes Dr. Yas Banifatemi’s† discussion on Delos Dispute Resolution’s TagTime series, with Dr. Kabir Duggal and Amanda Lee regarding the role that international arbitration can play as an effective remedy for human rights violations at sea.[1] This is an urgent discussion at a time where there are widespread and systematic abuses occurring at sea that go unnoticed. The initiative Dr. Banifatemi presents is built upon the conviction that human rights should apply at sea, as they apply on land, without any distinction. Thus, Human Rights at Sea arbitration[2] is intended to address the lack of accountability for these violations and to provide an effective remedy for victims.
I. INTRODUCTION
It is not often that people talk about international arbitration as a way to advance human rights. Quite the opposite, critics of the investment protection regime and investment treaty arbitration have recently begun to point out that this type of international arbitration limits the protection of some human rights, such as the rights to water, health, a healthy environment, and the self-determination of indigenous communities. In reality, many of these critiques are misplaced and they are motivated by a misconception of what investment arbitration actually is.
What is important to bear in mind is that there is no intrinsic incompatibility between arbitration and human rights. Far from being an impediment, arbitration can be used as a tool to strengthen and advance the rule of law. Mainly, because arbitration is accessible, it has a peaceful nature and, therefore, it can provide access to justice and accountability for the affected parties.
These elements make arbitration a tool for the rule of law that can be used to improve human rights in the maritime environment.
When it comes to human rights, the sea is like a black hole where little is known about the abuses that take place there. To understand the extent and magnitude of the problem, it is important to bear in mind that 90% of the world’s trade moves by sea, the fishing industry employs over 50 million people, and while the sea covers about 71% of the earth’s surface, approximately 64% is beyond any nation’s jurisdiction. In short, there is a potential for an enormous number of violations.
Some of the human rights abuses that can occur at sea are:
- Highly exploitative working conditions on fishing fleets, vessels, ships (modern slavery);
- Physical violence and other degrading or inhumane treatment;
- Human trafficking;
- Non-assistance to distressed ships and refusal of entry to refugees and asylum seekers.
Human Rights at Sea started to raise awareness of these types of abuses in 2014 and to advocate for the protection of human rights and accountability in the maritime environment.
Shearman & Sterling partnered with Human Rights at Sea to assist in the areas of their expertise. They have also recently published a White Paper[3] to establish a conceptual framework for an arbitration-based system that can provide the victims of human rights abuses an effective remedy.
The White Paper offers an analysis of concrete steps to implement such a system and to overcome the obstacles that currently prevent victims from accessing effective remedy and redress mechanisms. It also provides an outline of the basic features that an arbitration-based system would need to have.
II. CHALLENGES IMPEDING THE PROTECTION OF HUMAN RIGHTS AT SEA
Some of the main challenges today that impede the protection of human rights at sea will be discussed in the following lines.
A. Obstacles to states policing compliance with human rights at sea based on the type of jurisdiction that they have.
One major issue of ensuring the protection of human rights at sea is that multiple jurisdictions come into play, for example, 1) the flag state, 2) the coastal state, 3) the port state and 4) universal jurisdiction over piracy.
A common problematic situation is that some of the most used flag states (e.g., The Marshall Islands) have an extremely limited capacity to patrol overseas. So even when these states have jurisdiction over the vessel itself, most human rights violations go unnoticed.
B. Practical barriers to victims’ access to adjudicative fora
There are several practical obstacles for victims seeking redress for human rights violations at sea in a court of law.
1. Identification of a domestic court with jurisdiction
Some of the difficulties that may arise in this stage include identifying which state has jurisdiction (e.g., identifying the nationality of the corporate employer).
Moreover, not all state courts will accept hearing claims for extraterritorial violations of human rights or will regulate extraterritorial behavior of corporate entities.
2. Geographical distance between the victim and the domestic courts that have jurisdiction
Vessels and ships routinely cover extensive distances while discharging their duties. As a natural consequence, courts that would have jurisdiction over a human rights violation because of the nationality of the perpetrators or the place where it occurred might be far from the destination where the ship ultimately docks and the victims disembark.
3. Foreign legal systems
Even when victims reach a court of law, they are often required to navigate the procedural rules of a foreign legal system having jurisdiction over their claims. This might act as a deterrent or an unsurmountable barrier for victims trying to access justice.
4. Language barriers
Victims that find themselves in foreign jurisdictions will often have the additional problem of not knowing the language of the courts that exercise jurisdiction, which is an obstacle when seeking an effective remedy.
5. Access to specialized international human rights bodies involves many procedural hurdles
International human rights bodies may have jurisdiction for violations that occur at sea. However, a common requirement to access them is the exhaustion of local remedies or compelling proof that following domestic judicial procedures would have been futile. Additionally, victims are often unaware these avenues exist.
6. Lack of funds
A major practical barrier for seeking remedy in courts of law is the fact that the process, including costs of legal representation, travel fees, court fees, etc., may be very expensive.
C. Lack of independent and specialized domestic judges
Human rights violations often raise sensitive issues that require specialized knowledge and a tailored approach. However, in many jurisdictions, these cases are heard by courts of general jurisdiction that don’t have specialized knowledge of human rights law.
Moreover, domestic judges are not always independent and may operate under the wrong incentives.
D. Specialized international bodies often lack the power to compel the execution of judgments
International bodies specialized in human rights have relatively weak (or no) enforcement mechanisms on the judgments they issue. Many times, enforcement will depend on the will of the States themselves to abide by these resolutions. Therefore, this is not the most efficient mechanism of enforcement.
One telling example of the possible shortcomings that specialized international fora have is the Panamanian case. Panama is a principal “flag of convenience” State, with over 9,000 registered vessels (70% of the registered vessels in the world). It has also ratified the American Convention of Human Rights and has recognized the jurisdiction of the Inter-American Court of Human Rights (IACtHR). Despite these facts, there is not a single registered case against Panama for human rights abuses at sea in the IACtHR. This may be indicative of the low level of awareness and accessibility of specialized international fora.
III. HOW CAN ARBITRATION ENHANCE THE RULE OF LAW AT SEA?
A. Putting the system in the hands of individual victims
In a similar fashion to what has been done in the context of investment arbitration, the arbitration system is victim-centered. This means giving the victim a direct right of action against the state, company, and/or person alleged to bear the responsibility for any given instance of abuse.
B. Increase accessibility of adjudicative fora
1. The procedural simplicity of arbitration increases its accessibility
An arbitration system could offer a uniform procedure that would be easier to navigate for counsel and victims than the multiplicity of potential domestic judicial procedures. Additionally, cross-border arbitration is already a well-known phenomenon.
2. The adaptability of arbitration increases its accessibility
Arbitration also opens the possibility to tailor procedural rules that suit the needs of victims, including language, seat, and low-cost procedures.
3. Centralization of fora improves funding opportunities
A centralized, arbitration-based system might be better placed to attract financial support and pro bono legal services.
C. Neutral and independent adjudicators
Another way that an arbitration system might prove to be more advantageous to victims is its institutional guarantee of neutral and independent arbitrators. It is a fundamental requirement in international arbitration that the members of the arbitral tribunal be independent and impartial in relation to both parties.
Parties also have equal power in the constitution of the arbitral tribunal: once a dispute has arisen, each party can appoint an arbitrator and the presiding arbitrator can be chosen jointly by the parties, the co-arbitrators, or by the designated arbitral institution.
D. Specialized arbitrators
Arbitration will also allow for the parties to appoint arbitrators that are specialized in international human rights and the relevant fields of national law that are at play. This will boost trust in the system and ultimately lead to better results.
E. Shedding light on human right abuse patterns and perpetrators
Human rights violations occur that occur at sea have a high chance to go unnoticed. Given the difficulties specific to the maritime setting, it is particularly important to incentivize victims to report violations directly.
International arbitration makes raising individual claims easier, which has the potential to bolster the rule of law in two ways. It will have a deterrent effect on potential future abusers and it will also make states and the international community aware of patterns of violations. With that information, countries can improve their ability to deploy enforcement and inspection resources where they are needed the most.
1. International enforceability
Establishing a self-contained dispute resolution system—such as the one created by the ICSID Convention, in which awards are enforceable in any contracting state—would require a multilateral treaty.
In this context, the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958) (“New York Convention”)[4] can be used to enforce arbitral awards virtually all around the globe, with 163 contracting parties.
However, there are about 50 states that have made the so-called “commercial reservation” set out in art. I(3) of the New York Convention.[5] On this ground, these states may refuse to enforce an award on human rights violations at sea. One thing to keep in mind is that the term “commercial” has been interpreted very broadly in several jurisdictions.
Another way this difficulty may be overcome is if State parties are required to agree in advance that their disputes will be deemed commercial for purposes of the New York Convention. That is, the language on the States’ offers of consent to human rights at sea arbitration should recognize the expectation of the New York Convention to apply.
IV. CHALLENGES AN ARBITRATION-BASED SYSTEM COULD FACE AND POSSIBLE SOLUTIONS
A. Engaging stakeholders to provide consent to arbitration
Securing the consent of potential respondents is a prerequisite for human rights at sea arbitration to succeed. On the one hand, States may consent to arbitrate human rights at sea disputes, either in their domestic legislation or in an international instrument.
On the other hand, businesses may consent to arbitrate in employment contracts with seafarers and other employees or contractors, or States may require businesses to agree to arbitrate human rights at sea disputes as a condition for the registration of ships or docking at their ports.
Some innovative solutions to achieve this fundamental objective might be in the form of incentives or penalties to businesses operating at sea through financial institutions. Additionally, third party beneficiary clauses in contracts between corporations operating at sea can also be put in place. This would allow persons that are affected during the execution of the contract to go to arbitration, even if they are not a party to the contract. Such a solution may benefit seafarers that do not have a formal contract of employment.
B. Developing or adapting an arbitral institution to manage human rights at sea arbitrations
Human rights can be arbitrated on an ad hoc basis. However, this kind of arbitration places a higher management burden on the parties. Considering that in human rights arbitration at sea, claimants are not legal experts, it is safe to assume that they would benefit from institutional management.
Optimally, the specialized arbitral system would also be administered by an institution with relevant know-how in terms of qualified arbitrator recommendations, template procedural rules, independent storage of sensitive evidence, and other relevant protections to the parties’ sensitive data.
An arbitral institution would also facilitate discussion among stakeholders regarding constant system improvements and would be able to collect funds for human rights at sea arbitrations.
C. Lowering cost barriers
Civil litigation and arbitration have similar fees and expenses (i.e., representation, travel, etc.), but parties that pursue arbitration will also incur additional costs such as tribunal fees and institutional costs.
This could prove to be a heavy burden on potential low-resource victims of human rights abuses at sea. Some potential options to alleviate the burden of high costs include pro bono services or discounted fees, legal aid, or special purpose funds. The latter can be fueled by state and maritime employer contributions as well as charity donations. The fund can also be managed by the arbitral institution that administers human rights at sea arbitrations.
[1] Yas Banifatemi, Arbitration as a means of improving human rights protections at sea, TagTime (June 3, 2020), available at https://member-delosdr.org/video-tagtime-dr-yas-banifatemi-on-arbitration-as-a-means-of-improving-human-rights-protections-at-sea/.
[2] https://hrasarb.com.
[3] Arbitration as a Means of Effective Remedy for Human Rights Abuses at Sea, Human Rights at Sea & Shearman & Sterling LLP (May 5, 2020), https://www.humanrightsatsea.org/?smd_process_download=1&download_id=14487.
[4] Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1968, 21 U.S.T. 2517, 330 U.N.T.S. 38.
[5] Id., art. I (3).
* This post is part of a series summarizing episodes of Delos Disputes Resolution TagTime webinars. A list of past TagTime webinars is available at https://delosdr.org/index.php/past-webinars/.
** Bruno Acevedo (Mexico) is a Human Rights Fellow (2020-2021) currently pursuing an LL.M. degree at Columbia University (’21). He has clerked at the Mexican Supreme Court of Justice and at the High Electoral Court. He also has over 5 years of experience in Mexico City’s leading law firms on dispute resolution.
† Dr. Banifatemi is a Founding Partner at Gaillard Banifatemi Shelbaya Disputes. At the time of this episode, she was a partner at Sharman & Sterling and she remains involved with Human Rights at Sea in her personal capacity.