Harmonizing Human Rights Obligations with Security Interests

After Anders Breivik was convicted of slaughtering dozens of children at a summer camp, he was confined to a three-room complex in a Norway prison where he had the ability to play video games, watch television, and exercise. Breivik challenged his living conditions, which included solitary confinement, asserting they were inhuman, degrading, and violated human rights. In 2016, a court sided with Breivik in 2016 and ordered the Norwegian Government to pay legal costs. The surprising thing was not the ruling itself, but rather that it was not an anomaly.

Discussions, which have taken pace over the last seven decades, as to how to memorialize human rights obligations in international instruments are now evolving into discussions on how best to harmonize human rights with the obligation of protecting security interests.

In the maritime environment, three events are emblematic of the present challenge: After German Special Forces rescued mariners aboard a hijacked cargo ship and detained ten suspects, a transfer arrangement was diplomatically brokered with Kenya. In separate cases, the Dutch Navy transported five Somali pirates to Rotterdam for prosecution, and the French Navy interdicted drug traffickers operating off the African coast carrying 3.2 tons of cocaine. In all three instances, courts in European venues found government responses violated the suspect’s human rights.

In the Stanford Journal of International Law, I explore how judges are now addressing matters, which were previously left to the sole judgment of government officials and military commanders. Even States that do not explicitly use the term human rights in national-level judicial rulings or legislation are confronting issues related to humane and fair treatment in the context of maritime law enforcement and naval activities.

The tension between human rights obligations and holding criminals accountable for their illicit activity has been quietly growing for years and has recently come to the fore in venues spanning the globe. In 2011, Theresa May—then the United Kingdom’s Home Secretary and now Prime Minister—declared, “It is time to assert that it is Parliament that makes our laws, not the courts; that the rights of the public come before the rights of criminals; and above all, that we have a legal framework that brings sanity to cases…” A study conducted by a UK think tank noted, in part, that the tension here is not over human rights treaties, but about the role of courts and their rulings. In 2015, Australian Prime Minister Tony Abbott stated his country was “sick of being lectured to by the United Nations” about human rights violations. And Miguel Vargas Maldonado, President of the Dominican Revolutionary Party, said his nation’s sovereignty is sacred and non-negotiable: “No country or international organization, nor any court, has the right to set guidelines for our constitution and laws…”

Addressing this complex issue, which includes an array of considerations, warrants more than a binary analysis. Thus, the false dilemma that has surfaced regarding whether human rights are good or even necessary misses the mark. Human rights are an essential element of governance, individual freedoms, and transcend geographic areas. Rather, the focus needs to be on how to effectively raise awareness of obligations, ensure a safe and secure environment, and balance conflicting interests. Against this backdrop, two events that occurred in 2016 provide encouragement. The NATO Centre of Excellence for Operations in Confined and Shallow Waters (NATO COE CSW) held a multinational workshop to examine the intersection of human rights and maritime law enforcement. And, a London-based NGO –Human Rights at Sea—organized a conference that impressively attracted hundreds of participants. The two events, each the first of their kind, reflect a significantly increased emphasis on human rights in the maritime environment and are positive developments. But there exist more questions than answers today, as States must interpret scores of instruments and various court rulings that are increasingly impacting naval operations, among other security activities.

Questions discussed in my article include whether a warship must operate at an accelerated speed when transporting suspects ashore; is a warship obliged to be outfitted with a video link to connect defense counsel with suspects; and when may lethal force be employed? Courts have previously, and repeatedly, ruled on human rights in economic and social issues, education, civil and political rights, and the environment as well as in armed conflict. But more than a dozen opinions over the past six years following maritime interdictions, primarily in Europe and Africa, signal a new period in jurisprudence.

If nations risk breaching fundamental human rights in their pursuit of transnational criminal organizations, traffickers, and pirates, for example, due to inflexible, unnecessarily rigid, judicial interpretations and court opinions, those rulings will have increased the potential for the high seas to be a consequence free zone. The current challenge for courts, governments, and deployed naval forces is how to balance human rights obligations with the physical realities of high seas maritime enforcement interdictions.

Recent rulings underscore protecting human rights and conducting maritime enforcement operations are not mutually exclusive endeavors. That will not change going forward. What will also not change are the dangers, the challenges, and hurdles associated with enforcement action on the water. The growing application of human rights to the maritime environment highlights the need for comprehensive operational training that includes recognition of national-level policy guidance and legislation, judicial opinions, and treaty obligations. My SJIL article concludes with recommendations for a consistent, coherent framework, which does not now exist.