Law of the sea & human rights – Improvements achieved in draft IMO Guidelines – but some opportunities missed

For the context of this post, see this previous post. In short, there is an ongoing initiative to set out new international standards to guide states which detain seafarers, whether as a result of a navigation incident or more generally. These are referred to as the Guidelines on the fair treatment of seafarers (the ‘Guidelines’).

In September 2024, the joint tripartite working group of the International Maritime Organization (‘IMO’) and International Labour Organization (‘ILO’) (the ‘JTWG’) published a pre-final draft of the instrument, developed by the IMO Legal Committee. 

There were some issues in terms of how this document spelled out of the content of the ‘fair treatment’ it sets out to articulate. Some of these were reviewed in my October 2024 paper (IMO Fair Treatment Guidelines – an international human rights perspective) which identified a number of omissions and gaps vis a vis prevailing international human rights standards on jurisdiction, fair trials, the right to liberty and freedom of movement. 

That paper was conveyed directly to JTWG stakeholders and appears to have been directly relied upon in the review of the instrument by the JTWG when it met in November 2024. 

The resulting new draft of the Guidelines, released in December 2024, now includes a number of new elements plugging some of the gaps there were in the previous version. These are generally welcome additions, but there are still shortcomings.

New §8 now includes a helpful reference point to some of the (pre-existing) standards which were previously omitted, including the UN Body of Principles on for the Protection of All Persons under Any Form of Detention or Imprisonment (an important practical guide for coastal states which detain seafarers) and the Nelson Mandela Rules (the global standard on prison conditions). There is also a welcome reference to the Bangkok Rules, which seek to avoid incarceration of women in the criminal justice system.

However, a range of other standards  – including rules on judicial independence, remedies and procedures for those deprived of liberty, legal aid, or promoting use of non-custodial measures generally – are not mentioned. A missed opportunity.

New §12 includes a brief but significant addition with regard to jurisdiction. As noted in the paper at §§28-34, human rights standards apply where a state exercises its jurisdiction, which applies independently as matter of human rights law as distinct from the law of the sea generally. In other words: if a state detains a seafarer in its waters, it should respect the rights engaged by that (judicial oversight etc.), regardless of whether it actually has jurisdiction under the law of the sea (the absence of which may, though, also render its detention arbitrary in human rights terms). New §12 significantly now makes it clear that the Guidelines apply where the state “has exercised” jurisdiction.

New §14 is an updated version of the provision articulating, in this sector-specific context, general human rights standards set forth in the ICCPR. The last version had some notable omissions (see the paper at §42-(a)-(d) and Annex 2). The latest draft includes new provisions, or amended versions of previous provisions, addressing some of those gaps, e.g. guarding against arbitrary detention (per Article 9(1) ICCPR); on the requirement to notify reasons for detention (per Article 9(2) ICCPR); on the right to take habeas corpus proceedings (per Article 9(4) ICCPR) on “free” assistance of an interpreter (per Article 14(3)(f) ICCPR); adequate time to prepare a defence (drawing on Article 14(3)(b) ICCPR); and a requirement for a fair trial to take place promptly (drawing on Article 14(3)(c) ICCPR). This is all welcome. 

However, the picture remains selective. For example, as before (see paper §42(c) / Annex 2), the document displays a curious approach to the right to legal assistance. The provision now refers to “adequate and competent legal assistance of the seafarer’s choosing”, which is said with reference to Article 14(3)(d) ICCPR. The choice element is welcome. The elements of “adequate and competent”, if useful in themselves, are however brought in at the expense of “independent” in the last version. Furthermore, there continues to be no reference to legal aid, as expressly provided for by Article 14(3)(d) ICCPR. It is true that ship owners, insurers or unions may hire lawyers for seafarers (which is why shedding reference to lawyers’ independence was not a good move). But for those who cannot pay, the state bears an obligation. 

Moreover, in this mini ‘charter’ of seafarers’ rights there is still no acknowledgment of the right to freedom of movement. The Guidelines apply in situations of ‘detention’, defined broadly to include “restricting the movement of a seafarer” (New §11(e)). This may involve something short of deprivation of liberty but still impactful, e.g. a requirement to stay in-country sometimes for many months ‘pending investigations’ following a maritime accident (as in this case). Yet there remains no recitation of the Article 12 ICCPR right to freedom of movement, which includes considerations of necessity and proportionality, reasons being provided, and remedial recourse. Another missed opportunity.

The Guidelines will next be considered, and adopted, by the IMO Legal Committee and then by the IMO Assembly presumably in the course of 2025. 

Given that the instrument has no legal force of its own, it has impact via the practical guidance it offers to states and the consensus it expresses. The Guidelines are one aspect of an increasing international recognition of the linkage between human rights and the law of the sea (see e.g. UN Human Rights Council Resolution 56/18 encouraging UN treaty bodies to pay more attention to such issues). As discussed in the paper, the case law on that linkage is currently sparse, but may well develop in years ahead.