Transcription complète de Geneva Declaration on Human Rights at Sea: Informal Lawmaking in Action?

universal. 45 00:05:37,250 --> 00:05:44,240 They apply at sea as they do on land that all persons at sea without distinction are entitled to their human rights, 46 00:05:44,900 --> 00:05:48,260 that there's no maritime specific reason for denying them. 47 00:05:48,260 --> 00:05:53,240 So just because you're on the ocean, that is not a reason to deny human rights. 48 00:05:53,720 --> 00:05:59,330 And that all human rights established under both treaty and customary international law must be respected at sea, 49 00:06:00,110 --> 00:06:04,250 so for relatively basic principles on their face. 50 00:06:04,430 --> 00:06:09,440 So that's sort of the core of the Geneva Declaration. 51 00:06:09,980 --> 00:06:13,130 And then there are three annexes to the document as well. 52 00:06:13,220 --> 00:06:20,420 So Annexe, I kind of goes through in more detail the range of different human rights abuses 53 00:06:20,420 --> 00:06:24,620 that are occurring at sea beyond those that I mentioned to you just previously. 54 00:06:25,100 --> 00:06:30,620 So that way it provides sort of a factual basis for why this instrument is needed. 55 00:06:31,610 --> 00:06:38,570 Annexe B then lists out various international human rights treaties that are applicable. 56 00:06:38,960 --> 00:06:45,620 Obviously, the International Covenant on Civil and Political Rights Convention on the Rights of the Child also, 57 00:06:45,620 --> 00:06:50,570 and particularly for seafarers, the International Covenant on Economic and Social Rights. 58 00:06:50,990 --> 00:06:55,850 And then there are some maritime specific treaties as well, such as the Maritime Labour Convention, 59 00:06:56,180 --> 00:07:00,890 as well as the Working Work in Fishing Convention as well. 60 00:07:01,790 --> 00:07:06,349 Also, obviously regional human rights treaties might also be relevant and there's a 61 00:07:06,350 --> 00:07:11,300 whole series of rights that could potentially apply in different settings at sea. 62 00:07:12,530 --> 00:07:18,020 So Annexe Sea is the one that I was probably the most interested in as a law of the Sea person, 63 00:07:18,560 --> 00:07:22,700 because these are the guidelines for promoting compliance with human rights at sea. 64 00:07:23,180 --> 00:07:30,110 And that's where we start getting some details set out about how we might expect flag states, 65 00:07:30,260 --> 00:07:37,160 coastal states, ports states to address potential violations of human rights at sea. 66 00:07:38,450 --> 00:07:45,259 These guidelines that are done in a way that they should be accessible to anybody who reads them. 67 00:07:45,260 --> 00:07:52,190 So it's not a document specifically for lawyers. It's for somebody who's working in a port who wants to pick something up and 68 00:07:52,190 --> 00:07:57,080 just try and understand what these issues might be and how they might apply. 69 00:07:57,110 --> 00:08:03,290 So it hasn't got quite the nuance that we might expect as a legal instrument

as such. 70 00:08:03,290 --> 00:08:08,929 But it is supposed to try and give a fairly strong indication of what the different 71 00:08:08,930 --> 00:08:14,480 human rights laws that apply or what the good practice is in that setting. 72 00:08:16,590 --> 00:08:25,710 So in terms of how it all interacts with the existing law of the sea, I don't as I said, I'm not going to go into detail on that. 73 00:08:25,740 --> 00:08:30,240 I have written about that recently in the Ocean Development and International Law. 74 00:08:31,290 --> 00:08:33,390 So if you are keen, you can have a look at that. 75 00:08:33,930 --> 00:08:41,219 I just wanted to mention three particular issues, just to give you a sense of what we do need to think about as lawyers, 76 00:08:41,220 --> 00:08:45,750 if we're trying to work out more the technicalities of how this is going to work. 77 00:08:46,410 --> 00:08:51,120 So one of the issues is around this concept of effective control. 78 00:08:51,150 --> 00:08:57,330 So any of you who've sort of looked at the extraterritorial application of human rights, 79 00:08:57,330 --> 00:09:04,460 you know that what we tend to talk about is does a state have effective control over individuals at the time? 80 00:09:04,980 --> 00:09:11,340 That is the basis by which different international and regional courts have established jurisdiction. 81 00:09:11,910 --> 00:09:17,400 So we've seen that in relation to the ICCPR. We've seen that in relation to the Convention Against Torture. 82 00:09:17,820 --> 00:09:24,629 And certainly the European Court of Human Rights has relied on this test of effective control as a means of establishing 83 00:09:24,630 --> 00:09:32,610 that they have that state has jurisdiction and that the matter can be rightly decided by that particular body. 84 00:09:33,750 --> 00:09:38,410 But one of the questions that comes up is, well, is this test of effective control. 85 00:09:38,430 --> 00:09:42,950 Is that really just for establishing jurisdiction of those particular bodies, 86 00:09:42,960 --> 00:09:49,050 or is it a test that we can use to establish the human rights obligations owed? 87 00:09:49,680 --> 00:09:59,610 So we need to stop and think, is this actually are we using one particular tool in a very different setting, which is not what was intended? 88 00:10:00,270 --> 00:10:03,899 I think there's obviously going to be room for discussion around this, 89 00:10:03,900 --> 00:10:11,430 but if you figure that we kind of went with the effective control doctrine on the idea that, 90 00:10:11,580 --> 00:10:16,980 you know, this should not be a place where states can violate human rights with impunity. 91 00:10:17,580 --> 00:10:21,450 I think the same reasoning kind of holds when we think about, well, 92 00:10:21,450 --> 00:10:26,900 should we have an area out on the oceans where states could potentially violate human rights with impunity? 93 00:10:26,910 --> 00:10:34,650 So the reasoning might still be

the same. But the point I don't think is entirely settled and needs to be considered a bit further. 94 00:10:35,610 --> 00:10:42,270 Second, also, there are issues of concurrent jurisdiction that happen once we start talking about incidents at sea. 95 00:10:42,280 --> 00:10:54,450 So imagine quite easily. I'm sure you have a Dutch flagged vessel which is run by an NGO that has picked up a large number of 96 00:10:54,720 --> 00:11:02,880 migrants who were fleeing from Libya and they are now trying to take the migrants into port in Italy. 97 00:11:03,600 --> 00:11:08,309 So in that scenario, will, which state is going to have responsibility? 98 00:11:08,310 --> 00:11:12,420 Is it the Netherlands? Is the flag state on which the migrants are? 99 00:11:12,450 --> 00:11:22,650 Is it Italy where they want to seek asylum? Is it Libya, which is potentially ostensibly the flag state when they left Libya at that time? 100 00:11:22,680 --> 00:11:28,649 So there's always going to be situations potentially of concurrent jurisdiction depending on where a vessel is, 101 00:11:28,650 --> 00:11:31,950 where the people are on what ship that is flagged. 102 00:11:32,880 --> 00:11:36,990 So that in itself is a common situation in international law. 103 00:11:36,990 --> 00:11:43,260 But what we see happening in the human rights context is that one state will assume that the other state is 104 00:11:43,260 --> 00:11:50,720 going to exercise jurisdiction and it's used as a way of not actually pursuing the human rights claims. 105 00:11:50,730 --> 00:12:00,360 So the guidelines admonish flag states not to abdicate their responsibility to respond as appropriate to any human rights violation on its ships. 106 00:12:00,840 --> 00:12:09,840 And equally, a port state should not abdicate its responsibility to respond to any human rights violations occurring within its jurisdiction. 107 00:12:11,570 --> 00:12:21,139 And then another point which still really needs to be resolved relates to this idea about where a port state, 108 00:12:21,140 --> 00:12:28,040 for example, might have a right to exercise jurisdiction but isn't required to exercise jurisdiction. 109 00:12:29,090 --> 00:12:35,809 So we talk a little bit and the Law of the Sea about when a port state might have jurisdiction to deal 110 00:12:35,810 --> 00:12:41,840 with actions that have happened sort of on the high seas outside areas of national jurisdiction. 111 00:12:42,500 --> 00:12:48,170 And we say that there are some incidents like when there's been pollution, for example, 112 00:12:48,170 --> 00:12:53,210 where the port state could potentially act or perhaps it's illegal fishing and they might be able to act. 113 00:12:54,020 --> 00:13:00,530 So there is an argument that, for example, that arena parking lot please put forward that, 114 00:13:00,530 --> 00:13:04,759 you know, port states may well have jurisdiction to do this. 115 00:13:04,760 --> 00:13:13,130 But the question is, well, even if you say, well, sure, maybe they can, but are they obliged to exercise jurisdiction? 116 00:13:13,160 --> 00:13:17,090 I think that brings us a bit more into to human rights law in terms of, well, 117 00:13:17,660 --> 00:13:24,230 if this is happening within your territory, must you act to provide the remedy and to prevent human rights violations? 118 00:13:24,530 --> 00:13:27,650 Anyway, I said I wasn't going to spend too long on that, and I probably already have. 119 00:13:28,040 --> 00:13:34,519 So let's move on to concentrate more on this idea of informal lawmaking and 120 00:13:34,520 --> 00:13:39,230 what it means and what it might mean for the Geneva Declaration in particular. 121 00:13:41,130 --> 00:13:44,790 So once we start talking about informal agreements, 122 00:13:44,790 --> 00:13:53,550 it's this idea of creating shared expectations as to the standard of conduct in relation to a specific international issue. 123 00:13:54,690 --> 00:14:03,110 So. If that's the informal agreement that we're dealing with an instrument that is not legally binding, 124 00:14:03,650 --> 00:14:09,590 then the process of informal lawmaking can be defined in different ways and used. 125 00:14:09,950 --> 00:14:15,500 Palin has worked with various colleagues to come up with a useful definition, 126 00:14:16,160 --> 00:14:20,600 which I've paraphrased here, which is in formal lawmaking and international law, 127 00:14:20,990 --> 00:14:27,410 involves the process of international cooperation to reach agreements other than treaties between public authorities, 128 00:14:27,830 --> 00:14:35,510 with or without the participation of private actors or international organisations in varied institutions and networks. 129 00:14:36,380 --> 00:14:43,730 So what we're seeing potentially with informal lawmaking is it is potentially different actors who are involved. 130 00:14:44,210 --> 00:14:47,780 It's a different output to what we might normally expect. 131 00:14:47,780 --> 00:14:58,969 So it's not necessarily a treaty that comes out the end and then the process or the venue by which it's done is is not your typical venue, 132 00:14:58,970 --> 00:15:07,549 as we might expect. One thing to note here is that in the discussions by Parliament and colleagues, 133 00:15:07,550 --> 00:15:14,690 they talk about agreements between public authorities and that is a relevant consideration when you're thinking 134 00:15:14,690 --> 00:15:20,660 about the Geneva Declaration being an initiative of an NGO private organisation and what that might mean, 135 00:15:21,620 --> 00:15:31,040 because generally we see that with informal agreements. So this is an opportunity for a wider set of stakeholders to be involved in lawmaking. 136 00:15:31,520 --> 00:15:41,540 So it's a chance for non-state actors to be able to contribute information as to why states should act in particular 137 00:15:41,540 --> 00:15:54,199 situations and deal with a range of of particular

issues so it it can enhance good governance through improved transparency, 138 00:15:54,200 --> 00:16:01,640 by facilitating information sharing, distributing responsibilities and accountabilities, and also enhancing cooperation. 139 00:16:04,170 --> 00:16:13,440 So just to then take some examples of where we've had NGOs very much involved in the international law making. 140 00:16:14,580 --> 00:16:16,940 This isn't a new phenomenon by any means. 141 00:16:16,950 --> 00:16:25,500 If you go back to The Hague peace conferences, civil societies were involved at that particular time in in the discussions. 142 00:16:25,950 --> 00:16:26,550 So. 143 00:16:27,560 --> 00:16:36,470 We also know, though, that the engagement of civil society actors, of course, is limited by the traditional state centric aspect of international law. 144 00:16:37,670 --> 00:16:42,530 But really, since the time of the Cold War ending, 145 00:16:42,530 --> 00:16:52,010 there has been a lot more opportunities for NGOs to be able to engage in international fora with diverse and also with like minded states. 146 00:16:52,580 --> 00:16:58,819 So I'm sure you can probably all think of examples of treaties where NGOs have been quite involved, 147 00:16:58,820 --> 00:17:03,800 whether it was during the negotiations for the ICC statute, for example, 148 00:17:05,330 --> 00:17:12,440 obviously the trachea, the Ottawa Convention on Banning Landmines, the Convention on Cluster Munitions, 149 00:17:12,770 --> 00:17:17,240 and then most recently, the Treaty on the Prohibition of Nuclear Weapons. 150 00:17:18,140 --> 00:17:28,490 NGOs were also very involved in the development of the Convention on the Rights of Persons with Disabilities and also the 2000 Kimberley Process, 151 00:17:28,490 --> 00:17:32,540 which was dealing with trade in conflict diamonds as well. 152 00:17:33,410 --> 00:17:41,750 But I wanted to focus particularly on these three treaties you see here, the Ottawa Convention, the convention on Cluster Munitions, 153 00:17:41,750 --> 00:17:50,870 and the Treaty on the Prohibition of Nuclear Weapons, because I believe that's these three where it was the NGO that really started the process. 154 00:17:51,050 --> 00:17:54,200 And I think for that reason, it's interesting to see, well, 155 00:17:54,440 --> 00:18:01,850 what was the journey that was taken in this idea coming from an NGO and how did we end up with a treaty? 156 00:18:02,030 --> 00:18:05,240 Is this a path that we could see for the Geneva Declaration? 157 00:18:06,410 --> 00:18:12,730 So if we consider some of the characteristics of the Ottawa Convention, 158 00:18:12,740 --> 00:18:22,400 the Cluster Munitions Treaty and the Nuclear Ban Treaty and the lawmaking process, there are some commonalities in each instance. 159 00:18:22,910 --> 00:18:26,420 The core message was quite simple and unambiguous. 160 00:18:26,450 --> 00:18:33,020 It was about banning a weapon. What had to be done banning what

was targeted as a weapon? 161 00:18:33,620 --> 00:18:34,430 Very clear. 162 00:18:34,640 --> 00:18:42,380 So and certainly in the context of the Nuclear Weapon Ban Treaty, the core content was already very well known throughout societies as well. 163 00:18:43,490 --> 00:18:49,070 But I suspect that the core message of the Geneva Declaration actually lacks this simplicity. 164 00:18:49,520 --> 00:18:52,650 I mean, I said this those four fundamental principles, right? 165 00:18:52,730 --> 00:18:57,230 So human rights apply at sea just as they do on land. 166 00:18:57,950 --> 00:19:05,779 Sure, we can accept that it shouldn't be a difficult proposition, but it kind of begs an initial question about, you know, 167 00:19:05,780 --> 00:19:15,080 are we saying that that human rights don't apply or are we really just saying that human rights are not enforced at sea? 168 00:19:15,290 --> 00:19:23,060 And so really, it's just an issue of implementation rather than an issue of principle itself. 169 00:19:23,810 --> 00:19:27,520 And then, of course, the question is, well, what human rights we're really talking about? 170 00:19:27,530 --> 00:19:37,159 We know international human rights law is a vast area of law, that the individual rights within then each have their own sort of vagaries, 171 00:19:37,160 --> 00:19:42,530 their own particular content, their own little exceptions that might apply in certain circumstances. 172 00:19:43,400 --> 00:19:52,760 So as such, it doesn't make the Geneva Declaration on Human Rights at Sea, I think, as straightforward as this idea of a ban on a particular weapon. 173 00:19:52,790 --> 00:19:58,909 Obviously, each of those treaties then ended up having their own fine points that that happened. 174 00:19:58,910 --> 00:20:03,020 But it was a starting point with a simple and unambiguous message. 175 00:20:04,430 --> 00:20:11,150 Also, for each of these three treaties, the economic costs were relatively low for some of the stakeholders. 176 00:20:11,690 --> 00:20:17,240 So arms manufacturers who were making the landmines or making the cluster munitions, 177 00:20:17,570 --> 00:20:21,590 they were still making lots of other weapons anyway that weren't going to be banned. 178 00:20:21,590 --> 00:20:29,210 So there was still money in them. Nuclear weapons, primarily a state based business, if you like. 179 00:20:29,990 --> 00:20:37,730 So there weren't really private groups operating in opposition to the NGOs pushing for these different bans. 180 00:20:38,690 --> 00:20:42,770 So the economic situation for human rights at sea I think is quite different. 181 00:20:43,820 --> 00:20:49,310 Shipping and fishing companies are highly incentivised to keep their labour costs low, 182 00:20:50,540 --> 00:20:59,450 so cruise companies don't want their profit margins affected if it's going to be widely known that assaults are occurring during their cruises. 183 00:21:00,710 --> 00:21:07,190 Consumers will be negatively impacted financially if the prices of goods increase because of shipping costs, 184 00:21:07,550 --> 00:21:12,230 if seafood becomes more expensive, if cruises become luxury holidays. 185 00:21:13,430 --> 00:21:19,190 So states also have potential economic costs to bear in disrupting transnational crime 186 00:21:19,190 --> 00:21:23,750 operations if they're going to be rescuing migrants or people who are being trafficked. 187 00:21:24,080 --> 00:21:30,320 And in monitoring and prosecuting human rights. Pieces that have occurred on their ships or in their waters. 188 00:21:32,360 --> 00:21:35,510 So, again, another difficulty for the Geneva Declaration. 189 00:21:36,720 --> 00:21:42,090 Also what we saw with the Ottawa Convention and Cluster Munitions and Nuclear Ban Treaty 190 00:21:42,660 --> 00:21:48,540 was that they were each endorsed and there was engagement with like minded states. 191 00:21:48,750 --> 00:21:58,140 And achieving state buying can be critical really to the success of an NGO effort to secure the adoption of an international instrument. 192 00:21:58,470 --> 00:22:04,500 That's certainly something that human rights at sea, the NGO is hoping will happen with the Geneva Declaration. 193 00:22:05,160 --> 00:22:10,320 And there's perhaps some signs that some countries are interested, but we're not quite there yet. 194 00:22:10,470 --> 00:22:24,690 It might still happen. Now, also, though, with some of these different campaigns, there have also been security and political concerns. 195 00:22:25,590 --> 00:22:34,230 And with each of these sort of treaties that were banning weapons, it was easy, relatively speaking, 196 00:22:34,530 --> 00:22:42,480 to run a campaign about the humanitarian side that could outweigh perhaps the security concerns that existed. 197 00:22:43,230 --> 00:22:46,559 So the debate was recast by the NGOs, 198 00:22:46,560 --> 00:22:53,190 by the like minded states as something that was political and humanitarian and allowed for greater 199 00:22:53,190 --> 00:23:00,540 engagement beyond the military elite and beyond looking purely at these questions from a security basis. 200 00:23:01,650 --> 00:23:12,240 So focusing on human impact may allow for a debate to be reframed from questions of military or security advantages to one concerned with justice. 201 00:23:13,680 --> 00:23:19,640 But the opposite might well be true when we get to human rights at sea. 202 00:23:19,680 --> 00:23:22,380 As I mentioned, there are economic concerns here. 203 00:23:22,920 --> 00:23:32,430 And also we know from states practice, particularly in the migration context, there is a preference to securitise issues related to migration, 204 00:23:32,670 --> 00:23:39,510 not to favour the human rights orientation where there are options to think about the humanitarian sides. 205 00:23:39,930 --> 00:23:45,810 States are instead emphasising the importance of their security and their border security, most particularly.

206 00:23:47,250 --> 00:23:52,709 So I think by way of benchmarking with these other lawmaking processes, 207 00:23:52,710 --> 00:23:58,470 it's not immediately evident that the Geneva Declaration will progress to a treaty. 208 00:23:59,340 --> 00:24:05,370 But all is not lost. There are other ways that informal lawmaking might still have an impact. 209 00:24:06,420 --> 00:24:12,149 So when we start thinking about the traditional approaches to lawmaking and how 210 00:24:12,150 --> 00:24:16,920 international law is formed and we end up with treaties and customary international law, 211 00:24:17,610 --> 00:24:21,770 we know that informal agreements can have an impact in different ways. 212 00:24:21,780 --> 00:24:31,850 So the informal agreement can be taken into account in treaty interpretation, potentially, because they provide us with the context of a treaty. 213 00:24:31,860 --> 00:24:35,070 It tells us what perhaps the current expectations are. 214 00:24:36,000 --> 00:24:44,710 So that might be one possibility. If we try to look to some of the other aspects of treaty interpretation, 215 00:24:45,130 --> 00:24:52,930 we start running into a little bit more difficulty because if we start thinking about informal agreements as a subsequent agreement, 216 00:24:52,930 --> 00:24:56,739 what we're actually looking for is a subsequent agreement between the parties 217 00:24:56,740 --> 00:25:00,820 regarding the interpretation of the treaty or the application of its provisions. 218 00:25:01,240 --> 00:25:05,560 And the Geneva Declaration is not a subsequent agreement between the parties. 219 00:25:05,710 --> 00:25:15,940 States would need to endorse the Declaration, perhaps as a U.N. General Assembly resolution, to get kind of close to that. 220 00:25:17,920 --> 00:25:22,060 Informal agreements might count as subsequent practice, 221 00:25:22,450 --> 00:25:29,559 but only in the application of a treaty which establishes the agreement of the parties regarding its interpretation. 222 00:25:29,560 --> 00:25:34,750 And an instrument adopted by an NGO doesn't count in that regard. 223 00:25:35,810 --> 00:25:41,870 And similarly, even when we get to considering systemic integration, 224 00:25:41,870 --> 00:25:48,440 so this idea that we should look at all the treaties that are all applicable and try and interpret them all together, 225 00:25:49,100 --> 00:25:54,530 yes, that works when you're looking at treaties. But the idea of systemic integration, 226 00:25:54,530 --> 00:26:03,380 as it's phrased under the Vienna Convention on Law of Treaties is that they're looking for agreements that are applicable between the parties, 227 00:26:04,010 --> 00:26:12,380 and a query might be raised that an informal agreement is not applicable precisely because it's not formally binding as such. 228 00:26:13,280 --> 00:26:18,860 So there's some little possibilities there. But also again, we run into some roadblocks. 229 00:26:20,420 --> 00:26:30,050

Now, there is a possibility that an informal agreement may be a prompt for state action and could potentially contribute to state practice. 230 00:26:30,620 --> 00:26:37,790 So an NGO doing something in itself, obviously the NGO is not a state, so therefore it cannot be state practice. 231 00:26:38,270 --> 00:26:46,549 But what we have seen happen on occasions is that because of the advocacy positions that NGOs have taken that compels the state 232 00:26:46,550 --> 00:26:55,840 to respond and the response of the state is then the practice that can become relevant in terms of customary international law. 233 00:26:55,850 --> 00:26:59,900 So we saw this in, I mentioned the example of Italy previously, 234 00:27:00,590 --> 00:27:08,810 so where the Italian courts essentially had to come forward and say, well, yes, people are allowed to enter port in distress. 235 00:27:09,320 --> 00:27:18,020 So the court was essentially affirming a position under customary international law based on the actions of NGOs going into port, 236 00:27:18,020 --> 00:27:20,240 claiming that they were in distress at the time. 237 00:27:22,540 --> 00:27:33,950 Now beyond the the interaction with formal international law, I think we actually still need to look a little bit more broadly than that. 238 00:27:33,970 --> 00:27:39,640 So we know in the Law of the Sea and actually in many different areas of international law, 239 00:27:39,640 --> 00:27:46,959 that informal agreements are being used more and more, perhaps because we've got treaty fatigue, 240 00:27:46,960 --> 00:27:55,990 that there's perhaps too much dissonance between states these days to be able to reach a new treaty, 241 00:27:55,990 --> 00:27:59,170 which I'm sure we'll overcome for the plastics treaty, no doubt. 242 00:28:01,520 --> 00:28:05,929 So the fallback position in those situations is to look to informal agreements. 243 00:28:05,930 --> 00:28:09,200 They can be easier. The political costs are lower. 244 00:28:10,130 --> 00:28:13,940 So in this book, the unconventional lawmaking book, 245 00:28:14,090 --> 00:28:22,720 the contributors and I would go through and we've looked at the full range of different informal instruments that exist within the Law of the Sea. 246 00:28:22,730 --> 00:28:33,170 And what we notice that cutting across this process of informal lawmaking and the variety of outputs is what we described as sort of normative intent, 247 00:28:33,470 --> 00:28:43,040 the normative effect. So, for example, a process may have normative intent, that is the actors or sorry, 248 00:28:43,040 --> 00:28:49,580 a process may not have normative intent where the actors do not want to create a formally binding law, 249 00:28:50,030 --> 00:28:53,720 but it might ultimately still produce normative effect. 250 00:28:54,020 --> 00:29:01,970 So the standards may still form the basis of a treaty or state stop acting that way because they believe they're legally bound to do so. 251 00:29:03,170 --> 00:29:07,580 Or there might be normative intent amongst the actors they want to form law, 252 00:29:07,760 --> 00:29:13,520 but ultimately or to date, no normative effect is actually achieved despite the earlier intent. 253 00:29:14,540 --> 00:29:24,370 So in those different scenarios, we might see normative value emerging so we can get normative effect, I think in two potential ways. 254 00:29:24,380 --> 00:29:31,610 The first one more difficult, I think for the Geneva Declaration is within the UN Convention on the Law of the Sea. 255 00:29:31,610 --> 00:29:41,840 We have a number of different rules of reference and they allow us to refer to generally agreed international regulations or rules and standards, 256 00:29:42,290 --> 00:29:48,620 and that provides a way to bring in standards that are not legally binding, 257 00:29:48,650 --> 00:29:54,260 that they become binding by virtue of the fact that they're generally agreed and unclosed makes them binding. 258 00:29:54,920 --> 00:30:02,209 But so far the way that we have seen that happen has been in the context of or the expectation that it 259 00:30:02,210 --> 00:30:08,750 would be a recommendation that's been adopted by the IMO some sort of intergovernmental organisation, 260 00:30:08,750 --> 00:30:13,280 not again, this NGO initiated process. 261 00:30:14,510 --> 00:30:18,919 And more interesting example is perhaps with the San Remo manual, 262 00:30:18,920 --> 00:30:30,110 which is a adopted in 1994 under the auspices of the San Remo Institute for International Humanitarian Law. 263 00:30:30,650 --> 00:30:37,460 So the San Remo Manual basically is intended to be a restatement of the laws of naval warfare. 264 00:30:38,660 --> 00:30:43,910 So those laws were once adopted back at the time? 265 00:30:44,090 --> 00:30:47,600 Well, in the early 1900s, I think it was. 266 00:30:50,120 --> 00:30:56,179 But what's interesting about the San Remo manual is that it was a number of different private individuals who got together and said, 267 00:30:56,180 --> 00:31:02,089 Alright, what do we think the modern laws are? Let's write them down, let's explain why we think that is the way it is. 268 00:31:02,090 --> 00:31:08,570 And we see this happening in international humanitarian law bit at the moment with the Tallinn Manual, the Woomera Manual, for example. 269 00:31:09,590 --> 00:31:15,740 This is a way that private individuals are being involved in setting out the law. 270 00:31:15,950 --> 00:31:25,440 Then what happens, even though they're the private individuals who have done that, is that that is getting followed up within national laws. 271 00:31:25,460 --> 00:31:27,170 So at the San Remo Manual, 272 00:31:27,170 --> 00:31:38,690 various of its provisions have found its way into the different like codes that the naval legal officers follow in different settings. 273 00:31:39,110 --> 00:31:44,509 So perhaps this is something that might happen with the Geneva

Declaration if we see if it's set up in 274 00:31:44,510 --> 00:31:53,450 such a way that you have port officials or naval officers or other legal officers who look at it and go, 275 00:31:53,450 --> 00:31:56,690 Alright, we can just incorporate this into our domestic law. 276 00:31:57,080 --> 00:32:03,860 In that way it becomes binding and in the end that will be enough without having an international instrument. 277 00:32:05,840 --> 00:32:11,640 There is also examples of normative intent that can be detected within the Geneva Declaration. 278 00:32:11,660 --> 00:32:17,540 Mostly it purports to to say that we're restating what existing international law is. 279 00:32:17,540 --> 00:32:21,470 We're just putting it all together in a very digestible way. 280 00:32:22,700 --> 00:32:32,599 But within the different guidelines that are set out in Annexe C, there's also this idea that there's good practice that is happening as well. 281 00:32:32,600 --> 00:32:38,330 So perhaps not what is accepted as law, but again has that sense of like surrender. 282 00:32:38,360 --> 00:32:42,710 This is what it should be in the future. So good practice for flag states. 283 00:32:43,430 --> 00:32:49,549 Flag states to seek to ensure that the masters of all vessels cooperate with coastal or port states to ensure 284 00:32:49,550 --> 00:33:00,680 compliance through to now good practice but emerging practice that when a coastal state is issuing a license. 285 00:33:01,100 --> 00:33:05,450 To a vessel that it can come and fish within its exclusive economic zone, 286 00:33:06,050 --> 00:33:11,120 that in the conditions of the licence, that they will include adherence to human rights standards. 287 00:33:11,990 --> 00:33:19,610 And then that would mean the coastal state can go and enforce those license requirements under Article 73 of UN place. 288 00:33:20,660 --> 00:33:21,889 So again, 289 00:33:21,890 --> 00:33:30,200 we can sort of say that with this normative intent there's an idea that these are things that are going to be taken into the national laws of states. 290 00:33:30,860 --> 00:33:38,750 So I think in terms of our future options for the Geneva Declaration, really what is critical is thinking about the awareness raising, 291 00:33:39,590 --> 00:33:43,840 which is just a critically important aspect of the Geneva Declaration, 292 00:33:44,600 --> 00:33:51,860 but also thinking about the capacity building that is going to be necessary or partnerships that need to be undertaken with states 293 00:33:52,190 --> 00:34:00,830 to be able to understand that this is something that is happening and that needs a response from states in different contexts, 294 00:34:02,720 --> 00:34:06,470 from sort of more legal academic perspective. 295 00:34:06,890 --> 00:34:15,620 I think as you might have gathered in terms of the the guidelines that are set out in Annexe C, 296 00:34:15,620 --> 00:34:21,769 I do think that there would be some benefit in trying to

actually do that in a much more legal way 297 00:34:21,770 --> 00:34:26,600 where we deal with the nuances and we deal with some of the difficulties around jurisdiction. 298 00:34:26,990 --> 00:34:31,879 Maybe that is something that could be usefully studied by a committee of the ILO or 299 00:34:31,880 --> 00:34:39,410 within the IOC if we were to think of a particular treaty that might be needed. 300 00:34:39,440 --> 00:34:43,040 I think mostly we don't need another treaty in this area. 301 00:34:43,040 --> 00:34:49,489 We've got the human rights treaties, but perhaps the one little gap that we have that could be usefully filled is 302 00:34:49,490 --> 00:34:54,320 really this question around port state authority and port state responsibility. 303 00:34:54,920 --> 00:34:58,340 So maybe following something along the Port State Measures agreement, 304 00:34:58,340 --> 00:35:02,450 but actually going a bit further because the port state measures agreement gives 305 00:35:02,450 --> 00:35:09,950 port states authority to inspect vessels that are suspected of IUU fishing, 306 00:35:10,550 --> 00:35:13,220 but then they have to refer the matter to the flag state. 307 00:35:13,400 --> 00:35:22,370 So it would be better, I would think, if the port state could actually or should actually exercise jurisdiction itself. 308 00:35:22,700 --> 00:35:27,110 So there are potentially a few different ways forward. 309 00:35:29,210 --> 00:35:38,210 So as described in its forward, the Geneva Declaration is said to be a concise refocusing of existing international law. 310 00:35:38,960 --> 00:35:43,880 And what the Geneva Declaration is trying to do is explain how this operates. 311 00:35:44,630 --> 00:35:53,330 So connecting international human rights law with the law of the sea, it can be done, even if it's perhaps not as straightforward as it might seem. 312 00:35:53,330 --> 00:36:00,410 At first blush, I think, given the ongoing failures of some flag states to protect human rights. 313 00:36:01,010 --> 00:36:07,550 There is a need to really consider how other states may be empowered to take action to promote human rights. 314 00:36:07,880 --> 00:36:11,570 And the Geneva Declaration does indicate how this may be possible. 315 00:36:12,050 --> 00:36:20,780 And I think we need to think further on how we could have a situation where states are required to take action to protect human rights. 316 00:36:22,040 --> 00:36:26,869 And as with so much of international law and particularly international human rights law, 317 00:36:26,870 --> 00:36:34,010 much is going to come down to the readiness of states to align that conduct with existing international standards. 318 00:36:34,850 --> 00:36:41,299 Certainly that willingness needs to exist if we are going to try and advance this particular issue. 319 00:36:41,300 --> 00:36:48,620 But given that we're dealing with 30 million people who are on the seas and the vast majority of those are actually fishers, 320 00:36:48,620 --> 00:36:52,870 then we really need to make a stop in doing something about this problem. 321 00:36:52,880 --> 00:36:56,420 So I think the Geneva Declaration is important for that reason. 322 00:36:57,260 --> 00:37:03,770 But I will leave it there, and I'm interested to hear your questions and and thoughts on all of that. 323 00:37:03,920 --> 00:37:05,330 So thank you for your attention.