Shearman & Sterling partners with UK-based charity Human Rights at Sea to jointly develop a system aimed at facilitating, through the use of international arbitration, the redress of human rights abuses occurring at sea.
The goal of this joint initiative is both to provide victims of such abuses with access to an effective remedy and to combat impunity for the perpetrators of such abuses.
Human Rights at Sea is a UK-based charity that aims to promote and develop more effective human rights protection for seafarers, fishers, migrants, refugees and others working or living in the littoral and maritime space globally.
As described in Human Rights at Sea’s recently issued the Geneva Declaration on Human Rights at Sea, the philosophy of human rights at sea rests on four fundamental principles: (i) that human rights apply at sea to exactly the same degree and extent that they do on land; (ii) that all persons at sea, without any distinction, enjoy human rights; (iii) that there are no maritime-specific rules allowing derogation from human rights standards; and (iv) that all human rights established under treaty and customary international law must be respected at sea. At present, these fundamental principles are not being adequately respected, complied with or enforced. There remains significant evidence of widespread and systematic human rights abuses at sea, including slavery, sex trafficking, sexual assault, abandonment, and deprivation of basic labour rights.
The concept underlying the arbitration project under development is that these continuing wrongs can be alleviated through a more effective mechanism of redress for victims. An arbitration-based mechanism of redress for human rights abuses could significantly improve human rights protection in the maritime space, notably, by providing: (i) a neutral and visible forum in which human rights issues can be resolved; (ii) a flexible procedure that is both expedient and financially accessible to victims; (iii) an adjudicative process that is highly specialized and tailored to the sensitivities of human rights issues as well as to the particularities of the maritime space; and (iv) binding arbitral awards that would be enforceable internationally.
Partner Yas Banifatemi (Paris-International Arbitration) comments: “The project we have developed with Human Rights at Sea is a ground-breaking development, not only for the protection of human rights internationally, but also for the practice of international arbitration. This is yet another example of the significant value that arbitration has, among other ways, in helping to bring justice and the rule of law to people and to spaces that may not otherwise have sufficient access to them. We are very proud of this effort and are excited to see how it will progress through the next stages of development.”
The arbitration mechanism would deal with claims arising from existing international law principles for the protection of human rights. Stakeholders active or directly interested in maritime commerce – including flag States, port and coastal States and businesses – will be asked to provide open offers of consent to arbitrate human rights disputes. These offers could then be accepted by any party alleging a human rights abuse by the offeror, through the aggrieved party’s filing of an arbitration claim.
The proceedings would be administered by a dedicated “human rights at sea” arbitral institution, in accordance with a set of procedural rules specifically tailored for human rights disputes. The institution would also maintain a roster of specialist human rights and maritime arbitrators, and oversee the constitution of tribunals to hear such disputes.
The project is to be launched through several steps. After circulating a White Paper jointly drafted by HRAS and Shearman & Sterling that outlines parameters of the arbitration-based mechanism of redress, the concept will be further developed in subsequent stages, including through the circulation of draft model offers of consent, draft model arbitration agreements and draft arbitration rules.
Alongside Yas Banifatemi, the team at Shearman & Sterling is comprised of counsel Alex Marcopoulos, senior associate Elise Edson and associates Sandrina Antohi and Mariia Tsarova (all Paris-International Arbitration)
The White Paper is accessible here.
For any questions or for more information, please contact:
Dr. Yas Banifatemi, Co-Head of International Arbitration, Shearman & Sterling
Alex Marcopoulos, Counsel, International Arbitration, Shearman & Sterling
David Hammond, Esq., CEO, Human Rights at Sea