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The Effect of the Arbitration Clause Incorporated in a Bill of Lading to Third Persons Read chapter Read first chapter

2020 | OriginalPaper | Chapter

The Application of Human Rights and Ethics Principles to Self-protection Measures by the Ship Against Pirates and Armed Robbers

Authors : Khanssa Lagdami, Aref Fakhry

Published in: Maritime Law in Motion

Publisher: Springer International Publishing

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Abstract

This chapter looks at the way human rights standards and ethics played their part in reshaping the understanding of what seafarers and ships could do to protect themselves from the crimes of piracy and armed robbery at sea. The study was built as part of a wider maritime security and defense-oriented research project commissioned by the European Commission, entitled Protection Measures for Merchant Ships (PROMERC), which aims to reduce the vulnerability of merchant fleets and maritime supply lines to criminal abduction and extortion and thereby reduce risk to mariners, shipping, and the environment, while also reducing costs.

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Footnotes
1
Mejia Maximo Jr. (2012).
 
3
Article 5—Right liberty and security:
1.
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)
the lawful detention of a person after conviction by a competent court;
 
(b)
the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;
 
(c)
the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
 
(d)
the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
 
(e)
the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
 
(f)
the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
 
 
 
4
United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty is the international agreement that resulted from the third United Nations Conference on the Law of the Sea. The Convention defines the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for business, the environment, and the management of marine natural resources. The Convention was adopted in 1982 and came into force in 1994.
 
5
The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) or Sua Act is a multilateral treaty by which states agree to prohibit and punish behaviour which may threaten the safety of maritime navigation. The Convention was adopted by the International Conference on the Suppression of Unlawful Acts against the Safety of Maritime Navigation at Rome on 10 March 1988. It came into force on 1 March 1992 after it had been ratified by 15 states.
 
6
Article 100.
 
7
Article 105.
 
8
Idem.
 
9
MS Achille Lauro was a cruise ship based in Naples, Italy. Built between 1939 and 1947 as MS Willem Ruys, a passenger liner for the Rotterdamsche Lloyd, it was hijacked by members of the Palestine Liberation Front in 1985.
 
10
Mejia Maximo Jr. and Mukherjee (2006).
 
11
For instance, on 6 April 2009 a group of Somali pirates seized a sailing yacht off the coasts of Somalia. Five French nationals who were on board were taken hostage. One of the hostages was shot in the head and killed by police force assault. Furthermore, a recent report of International Commercial Crime Services says: “11.01.2015: 0500 LT: Posn: 03:44N – 004:59E, Around 63nm SW of Bayelsa, Nigeria. Ten pirates armed with AK47 rifles boarded and hijacked a product tanker and took hostage all nine crew. They transferred the fuel oil cargo to another vessel and two pirates departed with that vessel. The Ghanaian navy dispatched a naval vessel to investigate as the vessel moved into its waters. The naval boarding team arrested the remaining eight pirates. During the incident the crew were mistreated by the pirates ” For more narrations about attacks of piracy see: https://​www.​icc-ccs.​org/​ (accessed August 31st 2015).
 
12
The Council of Europe Convention on Action against Trafficking in Human Beings is a regional human rights treaty of international human rights law by the Council of Europe. The Convention opened for signature on 16 May 2005, and entered into force on 1 February 2008.
 
13
Washington Post (2010).
 
14
BBC News (2010).
 
15
Article 7 (4), SUA.
 
16
Obokata (2013), p. 23.
 
17
Ibid, 23-24.
 
18
This case concerns the capture and detention of people in the high seas in the case of drug trafficking.
 
19
UDHR: Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly in Paris on 10 December 1948 as a common standard of achievement for all people and all nations. See: http://​www.​un.​org/​en/​documents/​udhr/​.
 
20
Article 1 of the Universal Declaration.
 
21
ICCPR: International Covenant on Civil and Political Rights: A multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and enforced as of 23 March 1976. It committed its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. See: http://​www.​ohchr.​org/​en/​professionalinte​rest/​pages/​ccpr.​aspx.
 
22
Other Conventions state the same legal rules: conventions for the protection of human rights: European Convention on Human Rights (EHCR) (1950), Article 2; American Convention on human Rights (1969), Article 4; African Charter on Human and People’ Rights, Article 4; the Islamic Universal declaration of Human Rights, Article 1.
 
23
Which means: illegally or unfairly.
 
24
Tomuschat (2010), p. 3.
 
25
See: McCann and Others v. UK, 27 September 1995, §§ 148-149.
 
26
Ibid.
 
27
Related to this point, the European Court of Human Rights has observed that “Governments have failed to submit any comments regarding the proportionality of the level of force used by the police, the organisation of the police action and whether an adequate legislative and administrative framework had been put in place to safeguard citizens against arbitrariness and abuse of force” See case of Wasilewska and Kalucka v. Poland, 23 February 2010. See also the cases of L.C.B. v. UK, 9 June 1998; Osman v. UK, 28 October 1998; Anguelova and Iliev v. Bulgaria, n° 55523/00, 26 July 2007.
 
28
Office of the High Commissioner of Human Rights/ OHCHR (2010), p. 1.
 
29
Ibid.
 
30
The Inter-American Court of Human Rights recognized in the case of Velasquez Rodriguez that: “States must prevent, investigate and punish any violation of the rights recognized by the Convention” (para 166), Velasquez Rodriguez case (29 July 1988); Inter-American Ct.H.R (Ser.C.) No. 4(1988).
 
31
ITF-IMEC IBF International collective bargaining agreement, 2015–2017.
 
32
See Annex 1: IBF List of warlike and high risk designations, with main applicable benefits (as of 1st July 2014).
 
33
Ibid.
 
34
The counter-measures concerned: Gather information on situation; Knowledge of number of attacks in same month of previous year(s); Knowledge of number of released vessels in area.
 
35
See Right to information for seafarers in document of reference: Ethics and human rights in the field of piracy, page: 39.
 
36
Article 10—Freedom of expression
1.
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
 
2.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
 
 
37
Article 17.1 states: “A warlike operations area or high risk zone will be designated by the IBF. The list of such IBF designated areas will be available in the ITF’s website and amended from time to time. An updated list of the Warlike Operations areas shall be kept on board the vessels and shall be accessible to the crew”. 2015–2017 IBF Framework TCC Agreement (ITF).
 
38
Article 17.2 states of 2015–2017 IBF Framework TCC Agreement (ITF).
 
39
Mention could be made here of Maritime Liaison Office (MARLO) Bahrain, which issues regular advisory bulletins.
 
40
See document of reference: Ethics and human rights on the field of piracy, page: 39.
 
41
ITF Standard Collective Agreement.
 
42
ITF Standard Collective, Paragraph 20.
 
43
Kevin Macnish: Surveillance ethics, The Internet Encyclopaedia of Philosophy (IEP), See: http://​www.​iep.​utm.​edu/​surv-eth/​.
 
44
EU Council Decision on surveillance of sea external borders. Preamble, recital (1).
 
45
BMP3 (Best Management Practice 3: Piracy off the Coast of Somalia and Arabian Sea Area, Version 3, June 2010, p. 22.
 
46
Article 8—Right to respect for private and family life.
1.
Everyone has the right to respect for his private and family life, his home and his correspondence.
 
2.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
 
 
47
European Parliament (2009), pp. 17–18.
 
49
In this phase Promerc project suggests the NLW follow: water pumps, sound devices (ship’s horn/thunder flashes/flash bangs), long range acoustic device, foam spray (ox blood), crew noise, laser devices, pendulums, dye markers (red), razor wire, water spray, netting (metal—chicken wire) (alternatively to the razor wire), electrified barriers, water spray.
 
50
As critics point out, NLW can be lethal, but they are not intended to be so.
 
51
Lewer and Davison (2015).
 
52
Kaurin (2010), p. 102.
 
53
See about the right to not be subject to torture or ill treatment in the document of reference: Ethics and human rights on the field of piracy, page 19.
 
54
Amnesty International (2015).
 
55
Article 8—Right to respect for private and family life
1.
Everyone has the right to respect for his private and family life, his home and his correspondence.
 
2.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
 
 
56
The Data Protection Directive (officially Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data) is a European Union directive adopted in 1995 which regulates the processing of personal data within the European Union. It is an important component of EU privacy and human rights law. On 25 January 2012, the European Commission unveiled a draft European General Data Protection Regulation that will supersede the Data Protection Directive.
 
57
Duda and Szubrycht (2009).
 
58
In this phase, NLW concerned are: rubber ball grenade/sonic gun/pepper spray/taser gun/compressed air cannon/water cannon.
 
Literature
African Charter on Human and People’ Rights
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)
Data Protection Directive (Directive 95/46/EC)
Duda D, Szubrycht T (2009) The Somali Piracy new or old challenge for international community. In: Weintrit A (ed) Marine navigation and safety of sea transportation. Taylor & Francis, London
European Convention on Human Rights (EHCR) (1950)
Islamic Universal Declaration of Human Rights
Mejia Maximo Q Jr (2012) Maritime piracy – a multi-dimensional issue. Swedish Maritime Administration, Norrköping
Mejia Maximo Q Jr, Mukherjee PK (2006) The SUA Convention, 2005: a critical evaluation of its effectiveness in suppressing maritime criminal acts. J Int Maritime Law 12(3):170–191
Obokata T (2013) Maritime piracy as a violation of human rights: a way forward for its effective prevention and suppression? Int J Hum Rights 17(1):18–34CrossRef
Office of the High Commissioner of Human Rights/ OHCHR (2010) Preventing torture: an operational guide for National Human Rights Institutions
Tomuschat C (2010) The right to life-legal and political foundations in the right to life. Bill/Nijhoff, Leiden
United Nations Convention on the Law of the Sea (UNCLOS)
Anguelova and Iliev. v. Bulgaria, n° 55523/00, 26 July 2007
McCann and Others v. UK, 27 September 1995, §§ 148-149
Wasilewska and Kalucka v. Poland, 23 February 2010
Metadata
Title
The Application of Human Rights and Ethics Principles to Self-protection Measures by the Ship Against Pirates and Armed Robbers
Authors
Khanssa Lagdami
Aref Fakhry
Copyright Year
2020
Publisher
Springer International Publishing
Book
Maritime Law in Motion

Print ISBN: 978-3-030-31748-5

Electronic ISBN: 978-3-030-31749-2

Copyright Year: 2020

DOI
https://doi.org/10.1007/978-3-030-31749-2_18