The Impact of Somali Piracy on Seafarers' Rights: A Cross-Disciplinary Assessment

University essay from Lunds universitet/Juridiska institutionen

Abstract: Background: Somali piracy and armed robbery against ships remain to be one of the major global concerns today. Since 2007, over 1,500 piracy and piratical attacks were reported to the IMB Piracy Reporting Centre. These figures were gradually increased over the years, along with the degree of maritime violence. Somali pirates, with the urge of ransom payments, have consequently become more threatening and violent against their hostages. Seafarers, who are caught in the crossfire, are exposed to severe fundamental human rights violations during their captivity. They are kidnapped, murdered, tortured and threatened. They are being held as hostages for months. At any given time, over 100,000 seafarers are transiting this ‘violent’ area, or at least preparing to transit with absolute fear and horror. After their release, the traumatised effects of their captivity remain to pose threats to their livelihood. The impact of piracy on seafarers’ rights is a largely unexplored fragment of law, which needs further attention. In this regard, there seems to be various complex issues that need to be addressed. Hence, the main purpose of this thesis is to shed light on the complexities and critically analyse the alleged deficiencies and shortcomings in the current legal system. In other words, the author aims to provide a cross-disciplinary assessment of the relevant legal system. Consequently, the author expects to bring global attention to the possible legal deficiencies that currently prevent adequate legal safeguards from being established to protect seafarers in the context of piracy. Research Questions: 1. Which seafarers’ rights are violated and/or affected in cases of piracy? 2. What are the current safeguards for the legal protection of these rights? 3. What are the deficiencies or shortcomings in the current system and how can this system be made more effective? Main Findings: Seafarers’ rights, as human beings, include the right to life, freedom from torture, cruel, inhuman or degrading treatment, freedom from forced labour, freedom from discrimination, and right to a legal remedy and access to justice. Seafarers’ rights, as employees, include the right to safe and healthy working conditions, right to health and medical care, right to fair remuneration, right to free employment services and continuity of employment, right to social security and welfare, and right to repatriation. Subsequently, the author has analysed the identified rights in line with the relevant international and regional frameworks, which was then followed by a discussion on liability issues and enforcement mechanisms. Regarding the last research question, Chapter 4 focused on a number of current deficiencies relating to the liability of States and individuals towards the seafarer, applicability of human rights law on vessels, problems caused by the proliferation of open flag registries, disharmony and diversification among distinct legal frameworks and fields of law, and insufficiency of the current enforcement mechanisms. Primarily, the author has established that maritime law is the common link, binding the fragments of human rights law and criminal law together. The link between human rights law and maritime law is particularly clear in MLC 2006. It is also clear that States have the obligation to protect human rights of people who are subject to their jurisdiction. These issues are reaffirmed under MLC 2006, by establishing extraterritorial jurisdiction of flag States towards seafarers working on board vessels. However, international law remains vague and fragmented regarding the question of whether States have a positive obligation to protect certain rights of seafarers or merely have an optional possibility. Followed by a number of examples, the author argued that the wide recognition and implementation of MLC 2006 might be promoted as a starting point. Meanwhile, the problem of open flag registries could also be resolved through effective application of positive obligations imposed under MLC 2006. When the author focused on the current disharmony and diversification, she has provided various examples in this regard. For instance, the scope of piratical offences at the international and national level varies greatly, as well as the human rights regimes at the international, regional and national level. Similar discrepancies exist relating to the enforcement regimes. It is established that the current international and regional enforcement regimes are not sufficient to tackle the issue at hand. Thus, the author has combined these findings with a number of initial suggestions: 1. Widespread recognition and national implementation of CMI’s Model National Law should be promoted with regard to piracy laws at the national level. 2. Universal application and proper implementation of MLC 2006 must be promoted regarding the effective protection of seafarers’ rights. 3. International Labour Organization should consider further amendments to MLC 2006 on the security dimension of protection of seafarers’ rights. Meanwhile, BMP Guidelines might be updated and turned into hard laws.

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