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Justice For the Ocean

A ship runs aground and breaks in two on the shores of a protected area — coating Mauritian beaches, coral reefs and mangroves in a poisonous sludge and putting fisheries and wildlife at risk of toxic contamination. On the other side of world, a fleet of fishing vessels indiscriminately hoover up marine life, including endangered whale sharks, in the Galapagos National Park.

The past couple of weeks have brought into sharp relief some of the threats to our ocean, its creatures, and the communities and economies dependent upon its health. Many articles have been written, tweets liked and videos shared. (My 14-year old niece in Mauritius and her friends are prepared to donate their hair to the clean-up efforts.) We are sad and outraged.

What can we take from these seemingly disconnected events? Apart from the obvious — that the behaviour of the captains, crews, and companies behind these vessels is damaging ocean health and economies — there are lessons here about what needs to be done to prevent such incidents in the future. Even if you generously call one of these an accident, both point to a fundamental problem in how the international community has organised the governance of our It is all about responsibility: who is responsible for the activities and who is responsible for enforcing the rules?One common denominator between these two cases is that both the cargo ship and the fishing vessels are “flagged” to countries far away from where they operate.

This is not uncommon. Shipowners have the right to choose their flag state. To attract ship operators, flag states may offer incentives, such as cheap registration fees, low or no taxes, less strict oversight, and other “discounts”. Even landlocked countries can be flag states.But this practice makes it harder to hold vessel owners responsible where the impact occurs — whether the impact is oil-coated beaches or loss of food and income from theft of fish.Under the United Nations Convention on the Law of the Sea, flag state responsibility is a central tenet around which global ocean governance is organised.

This is important. This means that the flag state has a responsibility to ensure that the vessels under its flag behave according to both domestic maritime law and internationally agreed laws and regulations. These can apply to ship operations, routing, maritime safety, environmental issues such as pollution and dumping of waste, as well as to fishing operations — what can be caught and where, and how to minimise harm to other species or marine ecosystems. There is a widespread practice of commercially operated vessels to register in what I’ll call “less strict” states — places that may not have the capacity or incentive to oversee the activities of all vessels registered under their flag. This allows shady vessels with sub-standard crew arrangements, even trafficking onboard, to travel the world’s ocean, fish without permits and pollute our shared resource. And their owners get away with it, reaping the profits while others are left to shoulder the damage done.

Right now, the governments of Mauritius and Ecuador are both struggling with how to address the problem, who should pay remedies and how to go about any dispute arising from these incidents.In the case of the broken cargo ship, it is owned by a Japanese company. But the ship sails under Panama’s flag. In the case of the fishing fleet at the Galapagos, the Chinese flagged vessels are operating without real oversight and with little to no regard for global agreements or the rules of another country.

The Law of the Sea offers a way forward through international tribunals and courts, should the coastal state choose to bring a case forward. But it is a diplomatically fraught and financially costly endeavour. Basically, the victim pays upfront in pursuit of justice. Various international rules and regulations for the operations of ships and fishing already exist, but the shirking of flag state responsibility and the heavy lift to make those responsible pay for damage stand in the way and, thus, the ocean and dependent coastal states lose out. Right now, however, there is a window of opportunity to help bring these agreements together and create a common, integrated approach to ocean management and ensure responsible flag state behaviour.

The negotiations of a new international, legally binding Ocean Treaty that are underway at the UN could create a true culture shift in flag state behaviour and ocean governance. If agreed in the treaty text, states would be able to hold each other to account for any failures to implement agreements on everything from fisheries to shipping and pollution. No longer would individual states be able to flout the rules simply because it didn’t suit them to comply.Political will is a must, and we need much more of it to succeed. If states grasp this moment, we could see more responsibility and fewer accidents and illegal operations in the future. We all understand the concepts of justice and rule of law on land. The same must apply at sea.

The ocean, and all creatures and people depending upon its bounty, urgently need better ocean governance and management. The cumulative impacts of increasing industrial activities, coupled with climate change, make this even more imperative. 

Implementation of existing international law and a strong new Ocean Treaty can help achieve the paradigm shift we need to restore ocean health.

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