Introduction

Millions of seafarers are the backbone of the global fishing and maritime industries. They are solely responsible for the success of these industries and to enable consistent profits from their efforts for the ship owners. It is therefore imperative that all seafarers; regardless of their nationality, gender, religion and location – and regardless of whatever vessel they work on – from the lightest of fishing trawlers to the heaviest of container ships, are protected from abuses of their human rights and labor rights

To ensure transparency in the global maritime industry; the exposure of abuse must be of the highest priority, followed by easy access to effective remedies without any harmful consequences towards such exposures of abuse. Human rights abuses in this industry are relatively unexplored, never fully discussed and normally just ignored.

The aim of this symposium is to understand how different flag states comply with their international human rights obligations and through these findings to increase awareness of human rights abuses occurring at sea and the challenges in effectively monitoring and reporting them to competent authorities for remedial action.

Human rights obligations of Nations should ideally be applied in the maritime industry as equally and effectively as on land based industries. The fact that human rights are regularly violated at sea and remain mostly ignored is a high priority concern. The gap between human rights obligations and available means of monitoring, reporting and enforcement at sea requires a thorough examination of the manner in which key actors‘ contribute to the protection of human rights on board vessels, by flag States and coastal States.

The aim of this conference is to examine how flag States, especially ―open registries‖ comply with their domestic and international human rights obligations aboard vessels registered under their flags. Moreover, the focus is to provide new insight into how to better assess flag State practice going forward.

Our purpose should be to collect and review data for the following issues:

1. To summarize the international human rights and labor obligations of each flag state, and the mechanisms and reporting procedures, if any, that each flag State has for ensuring compliance with human rights on board their vessels.

2. Highlight the lack of key information regarding the human rights obligations of each flag State;

3. Identify key contacts that could be used and approached during the outreach stage of implementation of new policies.

REGISTRIES

The process to register a vessel under a specific flag requires several certificates and other mandatory information; such as the age of the vessel, owner‘s nationality, and vessel fitness certificate from its insurance company, etc.; that must be presented to and approved by the flag State registry

 Closed registries are those that only permit vessels owned by persons residing in or companies registered in the country, to be registered under the flag of that country.

By contrast, open registries or ‗flags of convenience‘ do not impose any nationality restriction in the registration process.

The requirements of ship registries in-part ensure that the vessels are compliance with international regulations related to safety and pollution prevention, as well as living and working conditions of seafarers. In order to verify that vessels adhere to international standards set out in the Paris and Tokyo Memorandum of Understandings (MoU), Port State Control (PSC) acts as a maritime inspection and enforcement agency. PSC inspection records form the basis of this MoU‘s ‗White‘, ‗Grey‘ and ‗Black‘ list flag ratings, which reflect high, medium and low compliance respectively.

Since the first point of compliance with internationally accepted standards is the requirements and due diligence of ship registries, they play a key role in managing human rights obligations more broadly. The registries of vessels vary significantly by type and as a result the extent of obligations placed on the owners of ships is also different.

Closed registries, offer a higher level of safeguard against the operation of a vessel that are likely to violate the terms of MoUs or other international obligations. Conversely, open registries seem to prioritize ‗ease of access‘ over stringent compliance. Further, the distance, both physical and in organizational context, between the flag State and the private entity operating the registry may create opportunities for negligent or potentially illegal activities of ship-owners and remove a critical barrier for monitoring and enforcement of international law obligations, such as environmental legislation or safety standards.

Monitoring and enforcing human and labor standards on board vessels is also challenging, especially for those vessels registered under an open registry flag.

HUMAN RIGHTS OBSERVATIONS & OBLIGATIONS

It is an inherent risk in the working lives of seafarers that they may be subjected to criminal charges either of a professional or a non-professional nature, simply due to the task of carrying out their duties. Seafaring is trans-national by nature. As seafarers transit from port to port, they are subject to the entire range of criminal laws of those port states. As foreigners, they cannot know and may not have been warned about local criminal laws, and hence they are at risk of committing an offense without any awareness or intention to do so.

Seafarers sometimes seem to be excluded from the entitlements and human rights accorded to others. Often foreign seafarers are treated differently and less fairly than nationals, and can be discriminated against. They may find themselves friendless in a strange land, facing charges that are incomprehensible to them under a wholly alien system of justice, and with defense lawyers mostly unfamiliar with the technical nuances of maritime laws and their applications where the seafarers may have infringed upon the law. Language, and the lack of adequate translation facilities, might well be a serious handicap.

Seafarers Rights International had conducted a survey of 3480 seafarers of 68 different nationalities to find out how many seafarers had faced criminal charges, and to learn more about seafarers‘ experiences if they had faced criminal charges. The findings in the survey raised a number of significant issues and highlighted the frequent lack of due process for those who face criminal charges:

 8% of seafarers and 24% of masters had faced criminal charges

 91% of seafarers who had faced criminal charges and who needed interpretation services were not provided interpretation

 90% did not have legal representation

 88% did not have their legal rights explained to them

 80% felt intimidated or threatened

 46% said that they would be reluctant to cooperate fully and openly with casualty inquiries and accident investigations

 Overall 81% of seafarers who faced criminal charges did not consider that they had received fair treatment.

 And 85% were concerned about criminalization.

The findings of the survey were presented to the IMO Legal Committee in April 2013 under the auspices of the ITF and the International Federation of Ship masters Associations (IFSMA). The Legal Committee called on States to continue efforts to promote Guidelines and mandated that the subject should remain on the agenda of the Legal Committee.

Seafarers are recognized as a special category of worker. Given the international nature of the shipping industry and the different jurisdictions within which seafarers may face criminal prosecution, seafarers need special protection when facing criminal prosecution in order to receive fair trials. For seafarers some of the most important constituent elements are:

 The right to a fair trial

 The right to have free interpretation and translation services

 Right to have their legal rights explained to them

 Right to have legal representation during pre-trial proceedings as well as trial proceedings, and

 The right to have their communications with investigators be kept confidential when cooperating in a no-blame investigation.

MONITORING AND REPORTING

With human rights obligations established with reference to the flag State, it is now necessary to identify specific human rights monitoring organizations, and to define the procedures that seafarers should follow in order to report human-rights abuses on board vessels. In doing so, we have to seek National Human Rights Institutions (NHRIs), Non-Governmental Organizations (NGOs) and other relevant sources of monitoring and reporting.

The Paris and Tokyo MoUs are of significant relevance in this respect, as they provide evidence of flag performance in relation to inspections and detentions. MoUs incorporate a threelevel grade of compliance; White, Grey and Black, which indicate high to low compliance. Usually, States on the black list have demonstrated poor performance with many of their vessels having been detained. Under the Paris MoU, flag State performance is determined by the total number of inspections and detentions over a 3-year period. Flag States classified as ‗White‘ are considered as high-compliance flags, while ‗Black‘ listed flag states have a poor inspection performance records.

Most Nation-State flag vessels are considered as a White or low risk flag State under the Paris and Tokyo Memorandum of Understanding. The European Union Maritime Safety Agency (EMSA) has adopted the same system of classification (Low Risk Profile, Standard Risk Profile or High-Risk Profile). Member States of the EU undertake inspections of ships calling at their ports through the PSC system. Most global Nations conduct expanded inspections of foreignflagged ships calling at ports or anchorages, which consist of detailed checks of construction elements and safety systems, such as the structural condition of the ship, the emergency system, fire safety systems or life-saving appliances. While human rights are not central to these inspections, seafarers‘ living and working conditions are taken into account into deciding whether the ships meet the requirements to qualify as a ―low risk profile‖.

In terms of human rights monitoring, the treaties ratified by the member nations are not directly legally enforceable in each-others respective courts, but they do constitute binding obligations in international law. This means the Parliament, the Human Rights Commission and civil society can hold the Government accountable to the terms of the treaties. Trade unions are found to be a valuable lobbying mechanism for individuals who have complaints about rights violations and claim to fill in the monitoring gaps left by other agencies. However, it is not clear which national mechanisms are available to seafarers or individuals on board vessels whose rights have been violated, nor to what extent trade unions influence governmental policies and the protection of human rights.

Research till date indicates that there may be little correlation between a State‘s human rights record and its status in the MoU. States with ‗white‘ status reflects their high ratification of human rights treaties and would indicate a higher level of compliance with its human rights obligations. For example the country of Marshall Islands has attained ‗white‘ status, despite its low ratification rate and the lack of accessible information with regards to human rights compliance and Panama is amongst the blacklisted flag states, a ranking reflective of its inadequacies concerning both human rights and maritime standards. It is, therefore, uncertain how informative an indicator the MoU inspections can be in terms of being well equipped to identify and monitor human rights standards, specifically whether they can identify systematic practices of human rights violations, such as human trafficking or ill treatment of seafarers or persons on board that vessel, or whether their inspections retains a focus only on structural and safety standards of the vessel.

Overview

 Specific monitoring and reporting mechanisms dealing with human rights violations are lacking or absent, especially those dealing specifically with violations at sea

 There is uncertainty due to the absence of public complaints procedures that would guarantee effective redress for human rights abuses on board vessels.

 Seafarers are especially vulnerable for being isolated in the ocean for long periods of time and therefore require a public, accessible and transparent procedure which ensures that they are not being exploited or left unprotected

These mechanisms should be made clear to seafarers prior to their maritime activities, both as a registration requirement and through accessible, clear and simple procedures published on relevant websites.

Any system of human rights protection system relies heavily on the availability of resources and political will. The size of the State on the one hand combined with the lack of resources and the size of the registry on the other hand, makes it even more difficult for such a monitoring mechanism to exist. Further, open registries such as those described, place emphasis on economic viability rather than on the protection of the human rights of seafarers. Available means for seafarers to submit complaints concerning human rights violations as well as public information regarding this issue are lacking. This could be interpreted as a lack of political will to accommodate for and protect the human rights of seafarers.

While the Paris and Tokyo MOUs classification is relevant in assessing the compliance of flag states with international safety, security and environmental standards, the extent to which the White, Grey and Black rating indicate actual adherence to human rights obligations is questionable. Thus, the MOUs should consider providing expanded rationale for ratings and publicize data used to assign ratings. Human rights instruments ratification record and human rights compliance should be an important criterion when determining whether a flag state meets the standards required to qualify as a ―White‖ flag state

The following questions are important in this aspect:

1. How do you [flag State] ensure the protection of the human rights of seafarers on board vessels registered under your flag?2. How can seafarers report human rights violations on board vessels that fly your flag?

2. How can seafarers report human rights violations on board vessels that fly your flag?

3. How many complaints are received by the flag administration each year?

4. How do you investigate allegations of human rights abuses under your jurisdiction?

5. What remedies do you have in place for human rights violations on board vessels registered under your flag?

6. Do you have any human rights reporting and assurance requirements for vessels registered under your flag?

Recommendations

1. Flag States should consider ratifying the core UN human rights treaties, IMO and ILO Conventions which provide for safety, human and labor standards.

2. Specific monitoring mechanisms for ensuring the compliance of a flag State with its human rights obligations onboard vessels should be put in place. In cases where the ship registries operate outside the flag State, the latter should be involved in the monitoring process.

3. Reporting mechanisms should be put in place that will allow persons on board vessels to complain of human rights abuses. In cases where these mechanisms are in place, they should become more accessible and user-friendly. Relevant information on how these can be accessed, and the reporting procedure and remedies should become available online by each flag State.

Compliance with human rights on board vessels should also be considered for listing flag States under MOUs. In cases where MoUs do consider this in their rating process, it should be explained how human rights compliance is measured.