The Lawlessness of Shipping Goes Mainstream

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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.

Environmental Peacebuilding in the South China Sea

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Environmental Peacebuilding in the South China Sea

In recent years the South China Sea has become a fiercely contested region.  China's rise as a regional and global superpower has emboldened an aggressive strategy to claim a larger share of the sea than would otherwise be allowed under the United Nations Convention on the Law of the Sea (UNCLOS).  While UNCLOS permits countries to exercise exclusive economic jurisdiction over a 200 mile extension from shore, China has claimed an ambiguously explained "9-dash line" that seemingly cuts into the maritime jurisdictions of Vietnam, Malaysia, and the Philippines (see map below the jump).  A 2002 agreeement between Association for Southeast Asian Nations (ASEAN) called for self-restraint in the area, but recently all countries have participated in an island development arms race to justify maritime and territorial claims.  China, in particular, has been the most aggressive:

In 2011 Chinese patrol boats harassed Vietnamese and Philippine oil-exploration vessels near the Spratlys. In 2012 China occupied Scarborough Shoal after a stand-off with the Philippines, which also has a claim. Last year a Chinese state-owned company sent an offshore oil rig into waters claimed by Vietnam, leading to violent anti-Chinese protests in Vietnamese cities. The rig withdrew months later. China has responded angrily to a case challenging the basis of its claims in the South China Sea which was filed in 2013 by the Philippines at a UN-backed arbitration panel. It has refused to co-operate with the hearings.

The refusal to acknowledge the jurisdiction of the Permanent Court of Arbitration under the auspices of UNCLOS is problematic for several reasons.  First, because it erodes the legitimacy and persuasiveness of a treaty if a major nation does not participate.  Second, because without a meaningful legal response the international community has less information with which to understand China's concerns and facilitate dispute resolution.  And finally, because uncertainty over the impending decision of the court is escalating island development ahead of the decision, destroying coral reef habitats.  

The South China Sea has now become a conflict of global concern.  Relations between China and its neighbors (including Japan) have deteriorated; much of the island development appears to be militarized; and the integrity of UNCLOS is being undermined.  The United States is deeply involved, with an interest in countering China's rising maritime influence by pivoting toward warmer relations with Japan, Vietnam, and the Philippines (although the US position that China's 9-dash line is invalid is somewhat undermined by the fact that the US is not a ratified party to UNCLOS).  

Less attention has been paid to the South China Sea environment itself.  In order to stake territorial claims (and the 200 mile exclusive economic zones that may go with them), countries are "reclaiming" shallow coral reef areas by dredging the seafloor in order to build artificial islands.  Shipping channels are cut and infrastructure is built over the reef.  One recently discovered artificial island has grown to accommodate an 82,000 square yard facility.  The land reclamation race only adds to the already fragile condition most reefs in the area find themselves in.  And given that legal jurisdiction is in dispute in the region, it probably goes without saying that fish stocks are plummeting due to overfishing.  Indonesia has resorted to sinking illegal fishing vessels, a move that has been criticized for antagonizing neighbors.  

But while many see the environment as a casualty of the South China Sea dispute, it also represents an opportunity for reconciliation.  

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