Today—the 10th of December—is an important day for international law. First, on 10 December 1982, the United Nations Convention of the Law of the Sea (UNCLOS) was adopted in Montego Bay, Jamaica. Among other things, the UNCLOS governs the innocent passage regime, which codifies and stabilises the delicate balance struck between the interests of coastal states in asserting jurisdiction in the waters off their coasts and the interests of flag states in unimpeded navigation therein (Articles 17 ff. UNCLOS). Second, 10 December is observed annually as Human Rights Day, commemorating the proclamation of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly in Paris on 10 December 1948. Article 2 of the UDHR states that ‘[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind’. This means that people at sea should enjoy human rights, as do people on dry land. Yet, people on board merchant ships, fishing vessels and even cruise liners often suffer egregious violations of their most basic rights.
Today is, therefore, a suitable moment to reflect on the interaction between the law of the sea—namely, the innocent passage regime—and international human rights law. Concretely, this blog post explores the question of whether the UNCLOS, in certain situations, authorises the coastal state to take action against a foreign-flagged ship in its territorial sea on the ground that the violation of the rights of persons on board renders the ship’s passage non-innocent. If a ship is in non-innocent passage, the coastal state has full prescriptive and enforcement jurisdiction over it and can subject the ship to its laws and procedures. In other words, the foreign-flagged ship loses the shield protecting it from the jurisdiction of the coastal state.
Before delving into the analysis, a caveat is in order. This post will ask more questions than it answers. Providing firm answers seems impossible at this stage for at least three reasons: First, the provisions of the UNCLOS on the innocent passage regime carry a high number of ambiguities and are controversially discussed. Second, while the concept of human rights at sea has gained acceptance in recent years, it is far from being fully established. Third, there is little doctrine, and even less state practice, on the interaction between coastal state jurisdiction in the territorial sea and international human rights law. This post is thus an invitation to join me in an exploration and navigate these largely uncharted waters.
Innocent passage is defined under Article 19 UNCLOS. The provision appears to offer at least three avenues for taking into account violations of the rights of people on board a vessel when assessing whether the ship’s passage is innocent.
First avenue: Article 19(2)(l) UNCLOS (‘any activity not having a direct bearing on passage’)
The first is Article 19(2)(l) UNCLOS, stipulating that passage is non-innocent if the vessel engages in ‘any other activity not having a direct bearing on passage’.
This is the last item on a list of 12 activities that render passage non-innocent—a list that was intended to remove some subjectivity in the assessment of non-innocence. While some describe it as a ‘catch-all provision’, compromising the very idea of making the assessment of non-innocence more objective, it is nonetheless far from obvious whether violations of the rights of people are covered by this item.
First, the violation of rights, which are committed by persons, might be excluded from this clause because it has been argued—in contexts other than this one—that the wording of Article 19(2)(l) UNCLOS refers to the conduct of the ship rather than to the conduct of persons. This argument can probably be refuted by pointing out that various provisions of UNCLOS refer to ‘ships’ when they actually mean the persons on board. This is true even of provisions relating to criminal offences which are per se committed by human beings (see, e.g., Article 108 UNCLOS).
Second, it is argued that the phrase ‘any other activity not having a direct bearing on passage’ covers only conduct manifesting itself externally. Yet, it seems rather artificial to distinguish between external and internal conduct since the conduct of the ship is inextricably linked to the conduct of persons on board. For example, a ship that engages in (illegal) fishing can only do so because there are fishers on board who may, inter alia, be subjected to forced labour.
Third, and this has to be taken seriously in order not to go against the grain of the innocent passage regime, the listed activities have to reach a certain level of gravity. This follows not only from the idea of balancing flag and coastal state rights that is inherent in the innocent passage concept but also from the chapeau of Article 19(2) UNCLOS indicating that the listed activities are deemed to be prejudicial to the peace, good order or security of the coastal state. When Natalie Klein recently wrote that ‘Committing human rights violations would not typically constitute actions that are directly connected to passage’ (see here), this is true. However, a contextual reading of the clause suggests that only violations of rights reaching a certain threshold render passage non-innocent.
This threshold question will be explored in the context of the second possible avenue to integrate rights-based considerations into the meaning of innocent passage through the first sentence of Article 19(1) UNCLOS.
Second avenue: Article 19(1) UNCLOS (‘not prejudicial to the peace, good order or security of the coastal State’)
According to the first sentence of Article 19(1) UNCLOS, ‘[p]assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.’ Several aspects of this provision remain controversial in scholarly discussions. Among these is the question of whether the coastal state has residual authority to determine that a ship is in non-innocent passage on the basis of this sentence alone, even if the ship does not engage in any of the activities listed in paragraph 2. For the purposes of this blog post, it is assumed that Article 19(1) UNCLOS has a self-standing meaning. Consequently, it is necessary to determine what the terms ‘peace’, ‘good order’ and ‘security’ cover. As these terms are very broad, it is easier to define them negatively, to state what they do not cover, than to define them positively.
By way of exclusion, it has, for example, been argued that passive factors do not amount to acts prejudicial to the peace, good order and security. This could lead to the assertion that violations of rights by omissions cannot qualify as activities rendering passage non-innocent. Yet, considering the ‘passive factors’ usually mentioned in doctrine, such as the nature of the cargo or the state of the ship, it seems that they all refer to conditions and circumstances that do not amount to conduct. In light of this, it seems that violations of rights by omission are not passive factors since omissions are, next to actions, a form of conduct.
It has further been argued, in other contexts, that the coastal state can only invoke the protection of its own interests in the context of innocent passage, but not those of other states or of the international community. This argument may be dismissed if the breached obligation is an erga omnes obligation. In the Barcelona Traction judgment of 5 February 1970, the International Court of Justice (ICJ) held that some obligations of international law arise ‘towards the international community as a whole’ and that they are by their very nature ‘the concern of all States’ (para 33). ‘In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’ (para 33). For present purposes, it is interesting to note that the ICJ considered ‘the principles and rules concerning the basic rights of the human person, including protection from slavery’ to be erga omnes obligations (para 34). As a consequence, the protection of coastal state interests and the interests of the international community merge in case of violations of basic rights of people on board.
The erga omnes nature of an obligation may, therefore, negate the argument that the protection of community interests should not be taken into account when assessing whether the passage is non-innocent. However, it does not exempt us from the need to positively define the threshold that a violation of the rights of people on board a foreign-flagged ship must reach in order to consider its passage to be prejudicial to the peace and good order of the coastal state. Indeed, the range of possible violations of rights is immense in terms of gravity and severity. Compare, for example, the situation of a seafarer who is denied medical treatment for a cold with that of a minor who is lured on board fishing vessels, forced to work, and drugged in order to keep performing despite sleep and food deprivation. This begs the question of what kind of violation of rights is required to render the ship’s passage non-innocent.
Arguably, the ius cogens nature of the obligation could provide a benchmark. The circle of peremptory norms is not clearly delineated. In its Draft Conclusions on the Identification and Legal Consequences of Peremptory Norms of General International Law (jus cogens) of 2022, the International Law Commission provides a non-exhaustive list of peremptory norms. It includes the prohibition of slavery and torture (see Conclusion 23 and Annex). While various recent reports refer to ‘slavery-like conditions’, ‘modern slavery’, or workers ‘treated like slaves’ on board certain ships, including fishing vessels (see, e.g., here or here), it remains to be determined whether these practices amount to slavery in the sense of mentioned ius cogens norm. Regarding torture, it would be necessary to determine the positive obligations of states and whether they form part of the ius cogens core of the right.
However, it is questionable whether the type and status of the right violated—such as the fact that a right amounts to ius cogens—should be decisive for assessing innocence. Or whether the violation of any right should qualify as being prejudicial to the peace and good order provided its violation features a certain gravity. For example, if the violation is serious, protracted and/or systematic, or if the conduct resulting in the violation of the right at the same time amounts to a serious crime.
Without digging any deeper here, we turn to the third avenue that may allow considering violations of the rights of people on board foreign-flagged ships when assessing non-innocence, which is the second sentence of Article 19(1) UNCLOS.
Third avenue: Article 19(1) UNCLOS (‘passage shall take place in conformity (…) with other rules of international law’)
This part of Article 19 UNCLOS states that ‘passage shall take place in conformity with this Convention [the UNCLOS] and with other rules of international law’. The meaning of the reference to ‘other rules of international law’ remains contested.
Some argue that this reference to external rules merely requires that other rules of international law, in our case, international human rights law, be taken into account in the interpretation of the concept of ‘non-innocence’ under UNCLOS. Such systemic integration creates some space to consider norms protecting people at sea when striking the fine balance between coastal and flag state interests. It is essentially what this analysis has been doing so far.
Others have a more liberal interpretation of this second sentence of Article 19(1) UNCLOS. According to this view, innocence, as defined in UNCLOS, is not the only criterion for passage, and other rules of international law may also control the right of passage. They point to the wording of the provision, which states that ‘passage shall be in accordance with this Convention and other rules of international law’ (emphasis added). This reading creates much more room to bring international law protecting people at sea into play when assessing innocence. Rather than solely interpreting innocence in light of international human rights law, innocence would be measured against the standards of this external body of law.
In sum, Article 19 UNCLOS offers at least three avenues to consider violations of the rights of people on board a vessel while assessing whether a ship’s passage is innocent. However, whether we accept that the protection of people at sea is a relevant factor in the assessment of innocent passage and how much we open the door for an interaction between the law of the sea and international human rights law hinges on the different ways we could interpret Article 19 UNCLOS, as shown in this blog post. Even if we agree, in principle, that considerations relating to the protection of people at sea should come to bear, the unsolved question is what violations render passage non-innocent—the answer to this question should be one that does not fundamentally disturb the balance struck by the UNCLOS between coastal state and flag state interests. Yet, disregarding egregious violations of the rights of people on board foreign-flagged vessels in passage in territorial waters also seems difficult, all the more as Article 19 UNCLOS itself suggests to at least take into account external rules of international law and thus international human rights law.
An Obligation to Exercise Jurisdiction?
Assuming that a coastal state has full prescriptive and enforcement jurisdiction over a foreign-flagged ship in its territorial sea because violations of the rights of people on board render its passage non-innocent, this raises the further question of whether international human rights law and/or transnational criminal law might oblige the coastal state to exercise its jurisdiction.
Compared to 30 years ago—when the UNCLOS entered into force—it is today recognised that international human rights law and, even less controversial, transnational criminal law are highly relevant to the maritime context. It has been well understood that, for the longest time, people at sea and the risk of violations of their most basic rights remained rather invisible. This is reflected in the text of the UNCLOS, which—to quote Professor Sir Malcolm Evans—‘has an awful lot more to say about protecting fish than about protecting people’. Yet, over the past 15 years, a series of crises—a security crisis (piracy), a humanitarian crisis (migration) and a public health crisis (Covid-19 pandemic) – have put a spotlight on people at sea and the threats and dangers to their rights (see here and here). The ensuing doctrinal and policy debates have largely dismantled the idea that the oceans are an exceptional space where human rights do not apply.
At the same time that the concept of human rights at sea has begun to crystallise, transnational crime at sea has risen to the top of the list of security threats (see, e.g., UN Doc A/63/63, paras 54-113), underscoring the relevance of transnational criminal law to the maritime domain. What is more, the last decade has seen a growing recognition of the link between transnational crime and violations of the rights of people on board ships. For example, instances of illegal, unreported and unregulated (IUU) fishing, human trafficking, forced labour and inhuman treatment not rarely occur in combination (see, e.g., here).
In light of these developments, it is worth enquiring whether the coastal state is, by virtue of external rules stemming from international human rights law and/or transnational criminal law, obliged to subject a ship to its laws and procedures when its passage is non-innocent because of a violation of the rights of persons on board and/or the commission of a transnational crime—even if under the law of the sea considered in isolation, the coastal state is authorised, but not obliged to do so.
The permissive character of jurisdiction under the law of the sea
Jurisdiction under the law of the sea is permissive in nature, not prescriptive. This means that the coastal state is authorised, but not obliged, to exercise it. This is confirmed by Article 25(1) UNCLOS, stating that ‘The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent’ (emphasis added). The word ‘may’ indicates that the coastal state has the option to not take any action at all against a non-innocent ship. If it decides to take action, the somewhat ambiguous words ‘prevent passage’ in Article 25 UNCLOS are read by the majority of commentators as giving the coastal state two options: to exercise jurisdiction over the ship, that is, to subject it to its laws and procedures, or to simply expel the ship from its territorial sea.
Concerns have been expressed that if the coastal state decides to take no action at all or simply expels the ship from its waters, the violation of the rights of people on board and the related crimes will become someone else’s problem or potentially no one’s problem at all. In other words, an impunity gap may be created.
In light of this, commentators have recently put the argument forward that other rules of international law may, in certain situations, oblige the coastal state to exercise its jurisdiction over the non-innocent ship. I will, therefore, explore whether international human rights law and/or transnational criminal law have the potential to transform the authorisation to exercise jurisdiction under the law of the sea into an obligation to exercise jurisdiction.
Does international human rights law oblige the coastal state to exercise its jurisdiction?
International human rights law does not affect the allocation of jurisdiction at sea; the allocation of jurisdiction is a matter for the law of the sea. However, where a state actually has jurisdiction under the law of the sea (for example, over a ship in non-innocent passage), international human rights law may oblige the coastal state to exercise it.
This has to do with the obligatory nature of human rights, which imposes duties upon states requiring specific conduct in specific situations. As Irini Papanicolopulu has put it in her seminal monograph entitled ‘International Law and the Protection of People at Sea’, ‘in several cases duties under human rights law actually oblige states to engage in activities that otherwise would be only discretionary, according to the law of the sea provisions’ (p. 205). She goes on to state that ‘whenever a State has the right to exercise a power under the law of the sea provision, and that power is instrumental to the protection of the right of a person, then that State is under the obligation to take such action’ (p. 205). This would follow from a joint reading of the law of the sea and human rights law.
This raises the question of whether, under international human rights law, the coastal state has a duty to act when a violation occurs on board a private foreign-flagged ship in its territorial waters that renders the passage non-innocent. This requires a two-step analysis.
The first step is to determine whether international human rights law is applicable to the situation at hand. A state does not owe human rights to all persons but only to those with whom it entertains a relation of duty. This accrues, for example, from Article 1 European Convention on Human Rights (ECHR) and Article 2(1) International Covenant on Civil and Political Rights (ICCPR). Such a relation of duty notably exists if a state has de jure jurisdiction over a person, for example, by virtue of the law of the sea. Since a coastal state has full de jure jurisdiction over a ship engaged in non-innocent passage, the applicability of its human rights obligations is triggered.
However, it is not sufficient that human rights are applicable to the situation at hand; rather, a substantive obligation of the coastal state to act in the particular case—a duty to act—must be identified. This is not readily apparent in our case as the violation of rights on board is committed by private actors on board a private ship.
Let us take a step back and consider the different roles and responsibilities of states in protecting people at sea. First, the coastal state may be the direct source of human rights violations when it takes action at sea using state vessels. Law enforcement is a classic situation where a coastal state may be the violator of human rights, for example, through the use of excessive force. These negative obligations have received increasing attention in recent years but are not relevant in the present case.
Second, and this is a less explored role, states are also guarantors of the rights of people at sea: the positive obligations under human rights law require the coastal state to take measures to protect people to whom it owes human rights obligations, including from harm caused by private actors, such as masters, shipowners or ship operators.
The Committee on Economic, Social and Cultural Rights (CESCR) stated in its General Comment No. 24 (para 14) that the duty to protect requires states to take various types of measures to ensure that private business actors do not cause violations of economic, social, and cultural rights. The Human Rights Committee (HRC) held the same for civil and political rights in its General Comment No. 31 (para 8), and the Committee against Torture (CAT) wrote in its General Comment No. 2 (para 18) that states engage their human rights responsibility if they ‘know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-state actors or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors’.
From this quote, it becomes evident that the duty to protect, which is part of most human rights obligations, is a due diligence obligation and, thus, an obligation of conduct rather than result. Coastal states are thus not under an obligation to achieve a certain result but are legally obliged to deploy adequate means, exercise the best possible efforts, and do the utmost to obtain the desired result. There is no pre-defined list of measures that a state must take to fulfil its due diligence obligations. Nevertheless, judicial and quasi-judicial bodies have identified a number of measures that are relevant in assessing compliance. Of importance for the present context are the obligations to enact and actually enforce domestic legislation, particularly criminal law, that prevents private actors from engaging in conduct that violates the interests and values protected by human rights law (see, for example, CESCR, General Comment No. 24, para 14; HRC, General Comment No. 31, para 8; CAT, General Comment No. 2, paras 8 and 18).
In sum, under international human rights law, the coastal state owes obligations to people on board a non-innocent ship because this ship falls under its de jure jurisdiction. Under the positive obligations of various human rights, such as the prohibition of torture or the right to life, the coastal state has a duty to protect these people from harm caused by private actors. This due diligence obligation requires the taking of appropriate or adequate measures, which generally include the enactment and enforcement of laws preventing the harm in question.
Coming back to Article 25(1) UNCLOS, this provision only authorises the coastal state to exercise its jurisdiction, that is, to subject the non-innocent ship to its laws and procedures. Hence, the law of the sea, considered in isolation, does not oblige the coastal state to do so; the coastal state may also merely expel the ship or even opt to remain passive. By contrast, international human rights law obliges the coastal state to exercise its prescriptive and enforcement jurisdiction. In light of this, some commentators argue that the law of the sea has to be read together with international human rights law; the latter body of law would transform the right to act granted by the law of the sea into a duty to act, implying in our case that the coastal state must subject the non-innocent ship to its laws and procedures.
Does transnational criminal law oblige the coastal state to exercise its jurisdiction?
A similar argument has recently been made by Antonios Tzanakopoulos in relation to transnational criminal law (see here). As mentioned, transnational criminal law is key for the protection of people at sea since violations of rights on board ships often result from, or are closely linked to, the commission of transnational crimes. Suppressing these crimes is, therefore, key to preventing and ending violations of the rights of people on board.
The main legal instruments to prevent and repress transnational crimes are suppression conventions. After the turn of the millennium, a series of new suppression conventions relevant to the maritime domain entered into force, namely the UN Convention against Transnational Organised Crime (UNTOC) and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.
Typically, suppression conventions require states parties to criminalise the offences defined in the treaty under their domestic law, that is, to exercise their prescriptive jurisdiction. In addition, they generally contain an obligation for states parties to exercise its enforcement jurisdiction by either extraditing or prosecuting suspects found on their territory. Moreover, some of these treaties oblige states parties to respect and protect persons who are victims of the covered offences, for example, persons who have been the object of trafficking in persons.
The argument is then very similar to that made in the context of international human rights law. Transnational criminal law treaties do not confer a coastal state with jurisdiction over foreign-flagged ships. However, if the law of the sea allocates jurisdiction to the coastal state, obligations of transnational criminal law come to bear. Since they oblige the coastal state to exercise its prescriptive jurisdiction by criminalising certain conduct and to exercise its enforcement jurisdiction by either prosecuting or extraditing the suspect, the coastal state is thus obliged to subject the non-innocent ship to its laws and proceedings. The coastal state has an obligation to act and cannot simply expel the ship or remain passive, as remains the case if we read the law of the sea in isolation.
Conclusion
Since the entry into force of UNCLOS three decades ago, international law has evolved. New treaties have been adopted. And existing law, which had traditionally been considered from a land-based perspective, started being perceived from a maritime perspective. This is true of international human rights law but also of transnational criminal law, which acquired a prominent place in the maritime domain when transnational crime became the primary threat to maritime security in the 21st century.
Not only has the law evolved, but so has our interpretation of it. With the ‘legalisation’ and ‘judicialization’ of world politics after the end of the Cold War—reflected in the adoption of new multilateral treaties and the creation of various international courts and tribunals —there has been a growing awareness of a certain risk of fragmentation of international law. Systemic integration was identified as one of the main strategies for achieving a degree of harmony between different legal regimes (see Study Group of the ILC, Draft Conclusions of the Work of the Study Group, p. 105). Most recently, in its Advisory Opinion on Climate Change, the ITLOS stressed the importance of systemic integration as a tool to avoid fragmentation, by stating: ‘The Tribunal is of the view that, subject to Article 293 of the Convention, the provisions of the Convention and external rules should, as far as possible, be interpreted in a consistent manner’ (para 136).
In addition to preventing fragmentation and norm conflict, a combined reading of the innocent passage regime of UNCLOS with a coastal state’s obligations under international human rights law and transnational criminal law has the potential to strengthen the protection of people at sea. Yet, there is still a long way to go. Writing this blog post has felt like building a house of cards. None of the elements is stable—the innocent passage regime is fraught with interpretive challenges, human rights at sea is a concept still in the process of consolidation, and transnational criminal law has rarely been studied in its interaction with innocent passage and the protection of people at sea. But even a house of cards, if built with the necessary caution, care and time, can ultimately stand.
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This blog post is based upon work from COST Action BlueRights, CA23103, supported by COST (European Cooperation in Science and Technology).
