Academic journal article Stanford Journal of International Law

Human Rights and Maritime Law Enforcement

Academic journal article Stanford Journal of International Law

Human Rights and Maritime Law Enforcement

Article excerpt

INTRODUCTION                                          244   I. THE UNIQUE MARITIME OPERATING ENVIRONMENT        246  II. APPLICABLE HUMAN RIGHTS LAW                      250 III. DRUG TRAFFICKING                                 261      A. Background                                    261      B. Discussion                                    263  IV. PIRACY                                           269      A. Background                                    269      B. Discussion                                    270   V. MARITIME MIGRATION                               287      A. Background                                    287      B. Discussion                                    290  VI. FISHERIES ENFORCEMENT                            300      A. Background                                    300      B. Discussion                                    301 VII. USE OF FORCE                                     313 CONCLUSION                                            316 

INTRODUCTION

After German Special Forces rescued mariners aboard a hijacked cargo ship and detained ten suspected pirates, a transfer arrangement was diplomatically brokered with Kenya. (1) In other cases over the past five years, the Dutch Navy transported five suspected Somali pirates to Rotterdam for prosecution and the French Navy interdicted drug traffickers operating off the African coast carrying 3.2 tons of cocaine. (2) In all three instances, courts found that government responses violated the suspects' human rights. (3)

Judges are now ruling on maritime law enforcement (4) issues previously under the sole ambit of government officials and operational commanders. (5) Questions with a potential human rights focus include how long a suspect may be detained aboard a warship, whether a warship is compelled to operate at an accelerated speed when transporting suspects ashore, when lethal force may be employed, and under what circumstances government officials may destroy a vessel.

Courts have repeatedly addressed human rights in the context of economic and social issues, education, civil and political rights, the environment, and in armed conflict. (6) But more than a dozen judicial rulings issued primarily in Europe and Africa following maritime interdictions between 2009 and 2015 (7), signal a new period in jurisprudence. (8) Moreover, even States that do not explicitly use the term "human rights" in national-level court opinions or legislation are now addressing issues related to humane and fair treatment in the context of maritime law enforcement. Because of integrated operations, such as those involving combined task forces, multinational coalitions, bilateral partnering, and ship-rider agreements,'' recent decisions--regardless of location--have relevance across the globe.

The benefits of protecting human rights are well documented and beyond the scope of this Article. (10) Moreover, a question that surfaced in past generations--whether human rights apply on the water--is no longer the salient issue. Rather, courts, governments, and deployed naval forces are now confronting the issue of harmonizing human rights with the inherent challenges of high seas maritime law enforcement interdictions. " It is an urgent issue today not just because of increased judicial attention or because certain terms that have no uniformly, internationally accepted definition are populating bilateral and multinational documents. It is an urgent issue because no consistent approach to harmonizing human rights obligations with operational exigencies necessary in maritime law enforcement exists. (12)

Medvedyev v. France, a European Court of Human Rights case, highlights the struggle of balancing human rights obligations with maritime law enforcement operations. (13) The French government's position in the case, summarized by the Strasbourg court, emphasized that "the unpredictability of navigation and the vastness of the oceans made it impossible to provide in detail for every eventuality when ships were rerouted. …

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