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Integrating the human element into law of the sea: the quest for a comprehensive legal regime and adequate implementation tools at the international and EC level

Final Report Summary - HUMANSATSEA (Integrating the human element into law of the sea: the quest for a comprehensive legal regime and adequate implementation tools at the international and EC level)

The research project aimed to identify a novel, human-oriented, approach to maritime activities, to allow a cross-fertilisation of different branches of international law and European Union (EU) law and to identify issues that have to be dealt with at international level and within the EU. More particularly, the aim of the research project was to highlight legal gaps in law of the sea instruments relating to the treatment reserved for individuals and groups of people at sea, being therein either voluntarily or not, to explore mechanisms for adapting the existing instruments to a more human-oriented approach and to consider how law of the sea rules could be used in order to provide for a stronger protection of individuals at sea.

Research undertaken during the two years has proven that this new approach is not only possible but also much needed. It is possible, since there is nothing in either general international law or its specific branches, including the law of the sea and human rights law, to preclude it. It is necessary, since the constant increase in the number of persons at sea, the unabated threats to their safety and security and the ongoing disjunction between persons at sea and their rights and obligations has produced many controversial practices. These include catch-and-release of pirates off the coasts of Somalia, push-back operations aimed at migrants and asylum seekers using sea routes, poor implementation of living and working standards on board commercial vessels, excessive use of force and other unlawful modalities of carrying out law enforcement at sea.

This result has been reached through a number of steps. The first stage consisted of collecting information concerning the presence of persons at sea, their needs and the threats they face, but also the difficulties that states and other entities face in applying the rule of law at sea. In parallel with this, research into the existing law was undertaken, with the aim of identifying the applicable branches of law and the content of their rules. Central to this part of the research has been the consultation of documentation produced by the competent international organisations, including Food and Agriculture Organisation (FAO), International Labour Organisation (ILO), International Maritime Organisation (IMO), United Nations High Commissioner for Refugees (UNHCR), as well as the interviews and discussions with persons working in this field, including scholars, advocates, international judges and members of quasi-judicial bodies (Committee for the Prevention of Torture, European Court of Human Rights, Inter-American Commission of Human Rights, International Court of Justice, International Tribunal for the Law of the Sea), international civil servants (Council of Europe, EU, FAO, ILO, IMO, ITF, UNHCR, UN), members of navies (Italian Navy, Italian Coastguard, Royal Navy, US Navy, US Coastguard) and State officials. In the light of these findings, the next step of the research consisted of the conceptualisation of the legal regime applicable to persons at sea. Due to time constraints, the research concentrated on international law sources, while taking into account developments in other legal regimes, in particular at the EU level. The initial results of this analysis have been presented in a number of specialised fora, including scholarly conferences and seminars in specialised research institutions, during which much useful feedback was received.

The results of this research have been the following:

- A detailed mapping of international law and its specialised branches applicable to persons at sea.
- The confirmation of the initial hypothesis that the law of the sea does not preclude, but rather allows and in some cases mandates, the applicability of human rights standards and human rights treaties at sea; a central role in this respect is played by the notion of State jurisdiction at sea, to which a specific publication was devoted.
- The identification of gaps and inconsistencies in the legal regimes governing specific categories of persons; specific studies have addressed, respectively: seafarers, fishers, migrants and pirates.
- The regime applicable to seafarers, while well-developed in a number of international instruments, culminating with the ILO-IMO Maritime Labour Convention, still suffers from poor ratification and implementation, as well as from some uncertainties concerning the extraterritorial enforcement of these provisions.
- On the other hand, the regime applicable to fishers is extremely poor, since fishing vessels are generally excluded from safety and labour conventions; in this case, there is both a lack of applicable instruments and a lack of political will to address the issue, as well as a confusion concerning the state or states that can enforce any applicable rule.

The results of this research are now finding their way into a monograph, that will address the legal regime applicable to persons at sea and will constitute the first publication in this field. In addition, specific issues have been addressed in a number of peer-reviewed articles and book chapters and conference papers.

In conclusion, this research has opened up an almost entirely unexplored field of law, i.e. the legal regime applicable to persons at sea, and has identified a number of issues that are particularly significant and need further attention by scholars and / or States and other international actors. A first indication of this has been the invitation received by the researcher to contribute a chapter on 'Human Rights and the Law of the Sea' to a new manual on International law of the sea and maritime law, the first ever to be included in a similar publication.

Contact details: Irini.papanicolopulu@glasgow.ac.uk
Host institution: University of Oxford