The Lawlessness of Shipping Goes Mainstream

I've been fascinated by the shipping industry for a while now.  My father was in the merchant marines, and I grew up on the Mississippi River where barges still carry coal, grains, and other goods from Minneapolis to New Orleans.  It was Rose George's Ninety Percent of Everything that really piqued my interest in the lawlessness of the shipping industry.  Using her own journey aboard large container ships as a backdrop, George reveals the surprising truths about shipping: the lawlessness of the high seas, environmental damages, threats from piracy, appalling labor conditions, jurisdictional ambiguities, and suspect financing.   According to George, it's cheaper for Scottish fishermen to ship their fish to and from China to have them filleted than to have them filleted in Scotland.  There are also myriad legal angles to explore, including the difficulties of enforcing crimes on the high seas when no country wants to take jurisdiction of a case.  Almost as curious is how little play the shipping industry gets in mainstream discourse.

But Ian Urbina and his team at the NYT made waves this month when they published a brilliant piece on the topic.  Ian talks about how one repeat offender ship prompted his work:

I had what an author, Rose George, calls “sea blindness”: a myopia common among land dwellers who view the ocean as a brackish blotch over which cross-continental travelers need to fly to get where they are going. Rarely do shipwrecks, or acts of fatal violence at sea, make the evening news. Ms. George is right: If all the stories of boats meeting calamitous ends instead involved airplanes falling from the sky or coal miners getting trapped underground, “we would probably hear about it.”  The Dona Liberta cured me of my sea blindness.

The Dona Liberta works as a case study of the shipping industry as a whole:

As the rusty refrigerator ship moved across two oceans and five seas and among 20 ports, it routinely abused, cheated and abandoned its crew, caused an oil slick nearly 100 miles long, and drew citations from a half-dozen countries for other environmental violations. Creditors chased its owner for millions of dollars in unpaid debts, and maritime watchdog groups listed its parent company as an illegal fishing suspect. Still, the ship operated freely and never lacked for work or laborers.
When wrongdoing occurs, no single agency within a country or specific international organization typically has a sufficient stake in the matter to pursue it. The stowaways on the Dona Liberta, for example, were undocumented immigrants from Tanzania, living in South Africa and brought to shore in Liberia. The ship was owned by a Greek company incorporated in Liberia, crewed primarily by Filipinos, captained by an Italian, flagged to the Bahamas and passing through international waters. 

The NYT has follow-up on the lawlessness of the sea here, here, and here.  My thoughts on lawfare taking place in the South China Sea here.

Image: SkyTruth; NYT.

Image: SkyTruth; NYT.

Multilateralism and the "Three Principles for the Rule of Law" in the South China Sea

Multilateralism and the "Three Principles for the Rule of Law" in the South China Sea

Two recent developments in the ongoing South China Sea dispute would suggest countries in the region are getting closer to a peaceful resolution.  The first emerged when Japan proposed an intergovernmental "Shangri-La Dialogue Initiative" (SDI) aimed at fostering disaster preparedness, maritime domain awareness, and crisis management.  The SDI could become a vital platform for countries in the region to share information, negotiate disputes, and develop management frameworks for natural resources, shipping lanes, and territorial claims.  It builds on Japanese Prime Minister Shinzo Abe's "three principles for the rule of law" in the South China Sea.  Here's Tetsuo Kotani's breakdown:

In view of rising territorial and maritime tensions in the Asia-Pacific region, Abe called for countries to make and clarify claims based on international law, to avoid using force or coercion in resolving conflicts, and to seek to settle disputes by peaceful means. Putting these three principles of the rule of law into practice is essential for the stability of the Indo-Pacific region.

Sounds nice, but isn't the conflict unresolved in part because international law is ambiguous with respect to territorial and maritime claims?  It seems difficult to imagine China signing on to the SDI.  But here's Kotani again:

The next step is to establish a code of conduct in the maritime and air domains. Similar efforts are being made between the United States and China, and between ASEAN and China. These efforts are designed to manage crises through the application of existing international law (UNCLOS) and international rules (such as COLREGS and CUES). If they prove successful, they will contribute substantially to establishing the rule of law in Asian seas.

So there's some indication that China may be willing to participate, as evidenced by those bilateral peacebuilding efforts with Japan and the United States.  And that leads to the second development that might signal a warming in relations: 

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Environmental Peacebuilding in the South China Sea, Ctd

Now that recent satellite images have revealed the extent to which Vietnam, the Philippines, Malaysia, and China are rapidly reclaiming coral reefs in the South China Sea, the countries are scrambling to come up with valid legal justifications for the brinkmanship.  

The Philippines is denying wrong-doing by claiming that its reclamation work constitutes maintenance, distinguishable from large-scale construction that would clearly implicate China:

The Philippine foreign minister denied China's accusations of recent massive reclamation, saying the country had done minor, but legal, repair and maintenance within its 200-mile Exclusive Economic Zone in the disputed area some years ago.  "We were doing some repairs and maintenance after the Declaration of Conduct of Parties in the South China Sea (DOC) but repairs and maintenance is allowed," Albert del Rosario said.  "Massive reclamation is not." 

Vietnam, so far, has kept a low profile since new images were released showing expanded construction in the Spratly Islands chain.  China's approach has been surprisingly proactive, acknowledging their own extensive reclamation efforts but framing them as necessary steps to fulfill obligations to the international community.  Its territorial expansions, supposedly, will be used to facilitate disaster relief, ocean and weather monitoring, and maritime search and rescue.  China even invited the United States to use their facilities for those purposes "when conditions are right."  

It is a shrewd argument that justifies China's reef building on the one hand, while undercutting the claims of its neighbors since they are not major powers with commensurate obligations to the international community.  If providing public services were a genuine objective it might provide some assurances to the United States and other countries that are concerned there may be impediments to navigation and overflight as a result of the territorial claims, though China could always claim "conditions aren't right" for joint use.  Unfortunately most of the installations appear militarized or have potential for militarization.  Even if that weren't the case, the real value of the reclamation work may not the be the installations themselves, but the maritime rights that would attach - in addition to fisheries and tourism, the waters of the South China Sea have untold oil and gas reserves.  

Image:  CSIS Asia Maritime Transparency Initiative

Image: CSIS Asia Maritime Transparency Initiative

Indirect Climate Change Regulation: The Case for Freshwater and Ocean Agreements

Indirect Climate Change Regulation: The Case for Freshwater and Ocean Agreements

Re-posted from my 2014 guest blog post at the University of Pennsylvania's RegBlog

Climate change presents the international community with a monumental regulatory problem that transcends generations, sectors, and political boundaries. Yet comprehensive climate change legislation on the international and national level seems a long way off, as countries appear unwilling to alter the course of their economic development without reciprocal commitments from the rest of the international community. In the absence of such comprehensive legislation, legal mechanisms that indirectly regulate climate change have emerged as viable, albeit interim, options. Among these mechanisms, international freshwater and ocean agreements are unappreciated sources of indirect climate change regulation.

The Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat, for example, aims to reverse the loss of wetlands through the adoption of “wise use” or sustainable use principles. The Ramsar Convention requires 168 contracting states to designate at least one area as a wetland of “international importance” in which the wise use of the wetland must be promoted in order to maintain its ecological character. With wetlands covering more than six percent of the Earth’s surface and playing a key role as sinks for carbon emissions, the convention’s ability to mobilize international support for wetlands conservation and wise utilization is a critical—and often neglected—component of the community’s mitigation and adaptation approach to climate change. To date 2,188 sites have been listed as internationally important wetlands, covering a total area of over 805,440 square miles.

Just as the Ramsar Convention represents an important international effort to protect wetlands, the 1994 United Nations Convention to Combat Desertification (UNCCD) aims to foster international cooperation to combat desertification and mitigate the effects of drought. The UNCCD explicitly recognizes the contribution “that combating desertification can make to achieving the objectives of the UN Framework Convention on Climate Change,” presumably because the challenges of combating desertification and mitigating the effects of drought are so intricately linked with climate change. Not only does climate change exacerbate desertification by making precipitation patterns more irregular, more direct forms of desertification—such as unsustainable agricultural practices and deforestation—eliminate another barrier ecosystem capable of absorbing atmospheric carbon dioxide. Thus, the UNCCD’s ability to mobilize support for combating desertification has a significant impact on climate change mitigation and adaptation, while the treaty’s unique integration with the UNFCCC provides a model for future international environmental agreements to fit their objectives into a climate change framework.

Treaties regulating the world’s oceans have even greater potential to indirectly regulate climate change.

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