The double vulnerability of female onboard observers and lack of Human Rights enforcement in the Law of the Sea Regime
- By Julia Cirne Lima Weston, LL.M in International Law from University College London &
Luciana Fernandes Coelho, PhD Candidate at the World Maritime University.
Back in November 2020, both the current authors presented an article at the Brazilian Institute for the Law of the Sea’s IV Congress. The article was inspired by a report that had come out in June 2020, depicting the vulnerability faced by fisheries observers.[1] . By pointing out the existing legal gaps in regards to the protection of the life and physical integrity of onboard observers as well as its challenges, the article proposed to apply the International Human Rights Law framework to the frail situation of said workers. In this column, to be published on March the 8th, international women’s day, we unfortunately verify one of the areas in which there is a double vulnerability for women workers: the case of female onboard observers.
In February 2021, the news framed once more the fragile situation of onboard observers by the headline: “‘Trapped’: Women Working as Fishery Observers Allege Sex Harassment, Assault at Sea”.[2] This sad news story describes the worrisome work conditions of the onboard observers when monitoring fisheries off the Canadian coast.[3] The fact that all of the interviewed observers were women depicts a double vulnerability: that of constant sexual harassment and assault while pursuing their jobs, which are already risky.[4]
The vulnerability of fisheries observers has been increasingly highlighted over the years, however, so far, little has been done internationally in order to remedy it.[5] Whilst the importance of fisheries observers is undeniable, as they have a twofold role of monitoring legal compliance and gathering scientific information – sometimes being the sole source of information – the protection framework applicable to them still has important lacunae.[6] For instance, the International Labor Convention’s Work in Fishing Convention of 2007, besides not having many signatories, is not applicable to observers at all.[7] The Cape Town Convention of 2012 is the only mechanism to mention those workers specifically, however, it is not in force due to a lack of the necessary amount of ratifications.[8]
Whereas this debate has evolved in some Regional Fisheries Management Organizations (RFMOs) and at the United Nations inter-agencies level (e.g. the working group between the International Labour Organization, the Food and Agriculture Organization and the International Maritime Organization), no specific legally binding instrument is in force at the moment to promote the human rights of these workers.
Considering the utmost importance of these workers with their twofold role of monitoring compliance with fisheries laws and gathering scientific fisheries data, the aforementioned article suggests a better implementation of the existing International Human Rights Law framework.[9] The suggestion is that this can be done through the usage of the Law of the Sea regime’s flag State jurisdiction rules, as explained below.[10]
According to the United Nations Convention for the Law of the Sea, flag States are to apply their jurisdiction to their registered ships, including on issues such as social matters, which the article sees as also encompassing social conditions within a vessel.[11] In this sense, flag States would have the exclusive jurisdiction to enforce that basic Human Rights be applied to the work of onboard observers.[12]
Within International Human Rights Law, the treaty chosen by the article as being the utmost applicable to the situation of observers is the International Covenant for Civil and Political Rights (ICCPR).[13] That is because of its wide number of signatories, comprising 173 State parties, as well as the possibility of applying it extraterritorially, according to the International Court of Justice (ICJ) and the Human Rights Committee.[14] If we consider that ICCPR rights are applicable wherever a State has jurisdiction over people, then it should be enforced, according to the ICJ’s decision on the Legal Consequences of the Wall in the Occupied Palestine Territory, as well as the Human Rights Committee’s General Comment 31.[15]
Within the applicable ICCPR rights, the right to life, due to human dignity, as well as the prevention of ill-treatment are the ones considered the most relevant for the purpose of this discussion.[16] This is because of the risky nature of said work, as well as the reported violations of these rights, such as the disappearance of observers and assault.[17]
Once jurisdiction is configured towards flag States to enforce said rights, they are to investigate such violations when they are reported to them, as well as to ‘not turn a blind eye’ when they are occurring within their registered vessels.[18] This understanding is based both on jurisprudence from the International Tribunal for the Law of the Sea, as well as of the Human Rights Committee.[19]
The use of an already existent framework within International Law is brought forward as an alternative which could be implemented on a shorter term.[20] However, it does not come without its fragilities, such as the obstacle of sovereignty and the lack of a power which can enforce said rules on flag States.[21]
The joint work of International Organizations, such as RFMOs, ILO and IMO opens another venue of possibilities to address these issues. Nonetheless, on top of the proposed solutions, this column aims to shed some light on this dormant, yet as relevant as ever, problem, one of many unsolved ones within the interaction between the Law of the Sea and International Human Rights Law.
You can find the book chapter as an annex to this column (Capítulo Observadores de Bordo), in order to get a better grasp of the topic and how it was thoroughly approached by the authors. This is just one of the interesting pieces contained in the book “Direito do Mar: Reflexões, Tendências e Perspectivas, v 4” from Editora D’Plácido, which we highly recommend all the academic community to acquire or access
[1] HUMAN RIGHTS AT SEA. Fisheries Observer Deaths at Sea, Human Rights & The role & Responsibilities of Fisheries Organisations. Available at: <https://www.humanrightsatsea.org/2020/07/03/report-fisheries-observer-deaths-at-sea-human-rights-and-the-role-and-responsibilities-of-fisheries-organisations/>, accessed 18 July 2020.
[2] VICE World News. ‘Trapped’: Women Working as Fishery Observers Allege Sex Harassment, Assault at Sea. Available at: <https://www.vice.com/amp/en/article/jgqnag/trapped-women-working-as-fishery-observers-allege-sex-harassment-assault-at-sea?__twitter_impression=true&s=08>.
[3] ibid.
[4] ibid.
[5] COELHO, Luciana F.; WESTON, Julia CL. Who Observes the Onboard Observers Working in the Waters Adjacent to the Pacific Small Islands Developing States? The Flag State Responsibility for Violation of Human Rights at Sea. In: André de Paiva Toledo et al (orgs.). Direito do Mar: reflexões, tendências e perspectivas, v. 4. Belo Horizonte: Editora D’Plácido, 2020.
[6] ibid, HUMAN RIGHTS AT SEA. Fisheries Observer Deaths at Sea, Human Rights & The role & Responsibilities of Fisheries Organisations. Available at: <https://www.humanrightsatsea.org/2020/07/03/report-fisheries-observer-deaths-at-sea-human-rights-and-the-role-and-responsibilities-of-fisheries-organisations/>, accessed 18 July 2020.
[7] INTERNATIONAL LABOR ORGANIZATION. C188 – Work in Fishing Convention, 2007 (No. 188), Available at: <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C188>.
[8] INTERNATIONAL MARITIME ORGANIZATION. Consolidated text of the regulations annexed to the torremolinos protocol of 1993 relating to the torremolinos international convention for the safety of fishing vessels,1977, As modified by the capetown agreement of 2012 on the implementation of the provisions of the torremolinos protocol of 1993 relating to the torremolinos international convention for the safety of fishing vessels,1977(Agreement). Available at: <http://www.imo.org/en/About/Conventions/ListOfConventions/Documents/Consolidated%20text%20of%20the%20Agreement.pdf>, accessed 21 July 2020, art. 2(4) and chapter VI; THE PEW CHARITABLE TRUST. The Cape Town Agreement Explained How one international treaty could combat illegal fishing and save lives. Available at: <https://www.pewtrusts.org/-/media/assets/2019/09/ctaexplained_brief.pdf>, accessed 22 July 2020.
[9] COELHO, Luciana F.; WESTON, Julia CL. Who Observes the Onboard Observers Working in the Waters Adjacent to the Pacific Small Islands Developing States? The Flag State Responsibility for Violation of Human Rights at Sea. In: André de Paiva Toledo et al (orgs.). Direito do Mar: reflexões, tendências e perspectivas, v. 4. Belo Horizonte: Editora D’Plácido, 2020.
[10] ibid; UNITED NATIONS. United Nations Convention on the Law of the Sea of 1982. Available at: < https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf>, accessed 20 July 2020, art. 94.
[11] ibid.
[12] ibid.
[13] ibid.
[14] ibid.
[15] ibid; UNITED NATIONS HUMAN RIGHTS COMMITTEE. General Comment 31. Available at: < https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.13&Lang=en> , accessed 30 July 2020; INTERNATIONAL COURT OF JUSTICE. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Available at: < https://www.icj-cij.org/en/case/131> , accessed on 20 July 2020.
[16] COELHO, Luciana F.; WESTON, Julia CL. Who Observes the Onboard Observers Working in the Waters Adjacent to the Pacific Small Islands Developing States? The Flag State Responsibility for Violation of Human Rights at Sea. In: André de Paiva Toledo et al (orgs.). Direito do Mar: reflexões, tendências e perspectivas, v. 4. Belo Horizonte: Editora D’Plácido, 2020.
[17] ibid.
[18] ibid.
[19] ibid.
[20] ibid.
[21] ibid.
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