Was The Deliberate Sinking Of The Oil Spill Vessel Wakashio An International Crime? Here’s What The Law Says.

On Monday 24 August 2020, the front section of the 300-meter-long iron-ore transporter, the Wakashio, was deliberately sunk. This follows a month of being grounded on the reefs of Mauritius and the vessel splitting in two on 15 August.

Despite an operation to tow the front half of the vessel since half past midnight on Wednesday 19 August, 10 days later (29 August), there has still been no public disclosure of the location of the deliberate sinking of the Wakashio (although satellites have been able to ascertain the direction of travel). 

Government statements have said that the vessel was sunk in waters that were 2000 meters deep (although there has been no independent verification). This would mean the pressure at the bottom would be 200 atmospheres (or 200 times the pressure at the surface). This would mean that any remnants or traces of toxic material on the vessel would be squeezed out like ketchup from a bottle, given the pressure at such depths. This is why both the materials on the vessel and location are so critical to understand the potential impact on the marine environment.

A 4-minute video shot by local journalist and human rights activist, Reuben Pillay, reveal the dramatic chase and scale of operation being prepared to sink the Wakashio as it was towed out to sea on 19 August.

Two days after the sinking of the forward section of the Wakashio, 18 dolphins and whales washed up dead on the shores of Mauritius on Wednesday 26 August 2020. By Friday 29 August, 39 dolphins and Melon-headed whales had died and video taken by local journalists around the lagoons of Mauritius revealed that many more dolphins and whales were clearly distressed. The mammal autopsy results have not yet been publicly released.

As the citizens of Mauritius marched in protest on Saturday demanding greater transparency and accountability over the handling of the Wakashio grounding, oil spill and salvage operation, questions are also being asked about the decision to sink the Wakashio, when weather conditions at the time of the sinking reveal calm oceans and clear skies.

As organizations like Greenpeace also question the legality of the sinking of the Wakashio, there are three important questions to ask: what international laws could have been broken, which courts would have jurisdiction, and who was responsible.

Let’s look at each in turn.

Regulations governing dumping of vessels at sea

The main body of law governing pollution at sea is called Marpol (short for Maritime Pollution), and is a body of law that was adopted by the UN shipping regulator, London-based International Maritime Organization. These laws were adopted in 1979 in response to environmental pressure due to the widespread practice of dumping waste in the ocean at that time.

There are six main chapters within this body of law covering different aspect of pollution from shipping (e.g., oil pollution, chemical pollution, sewage, cargo, air pollution). Annex 5 deals with pollution associated with garbage, which dumping a vessel would constitute. 

In addition, there are several separate bodies of law that may need to be looked at with a vessel situation as complex as the Wakashio. This includes individual bodies of law that govern Ballast Water Pollution, Regulations on Anti-fouling Materials used on vessel hulls, and guidance on the Environmentally Sound Recycling of Vessels. 

In short, there are many well documented international laws and norms governing the deliberate sinking of any vessel that could have been violated.

There are reasons these laws have been developed, and very clear guidance and protocols that need to be followed for any decision to scuttle a vessel, that has not been inventoried and cleaned. Let’s look at some of the main risks.

a)     Ballast Water and risk of invasive species

Ballast water is one of the biggest risks to life in the ocean. This is the water used to stabilize vessels. It is critical to the operation of any vessel that varies the load it is carrying, but as vessels have become larger, the risks that ballast water entails have increased, posing serious ecological, economic and health risks due to the multitude of marine species carried in ships’ ballast water.

Ballast water – which is often filled from one location and transported to another somewhere else in the world – is often full of bacteria, microbes, small invertebrates, eggs, cysts and larvae of various species that are not native to the location the vessel is travelling to. 

The transferred species may survive to establish a reproductive population in the host environment, becoming invasive, out-competing native species and multiplying into pest proportions or causing marine disease.  Harm caused by ocean-born invasive species include cholera, water flea, toxic algae.

The spread of invasive species is now recognized as one of the greatest threats to the ecological, and the economic well-being of the planet. These species are causing enormous damage to biodiversity. Direct and indirect health effects are becoming increasingly serious and the damage to the environment is often irreversible.

A new international treaty to govern the safe use of ballast water came into force in 2017, called the Ballast Water Management Convention (BWM).

Journalists have approached the owner of the Wakashio, Nagashiki Shipping, for details of the volume of ballast water being carried by the Wakashio at the time of the grounding, details of the operation to pump any water from the vessel prior to scuttling, details of where the ballast water had already been collected from to assess any marine disease risk, as well as details for how any ballast water collected from the Wakashio was safely disposed of. There has not yet been a response, when much of this information should be available at a click of the button and is required to be carried by the vessel as per the 2017 laws.

b)   Industrial cargo residue

The residue of industrial cargo could contain harmful toxins, given the pressures at which the vessels are being sunk. There are strict regulations to inventory and disclose the materials on board the vessel. Annually, for the over 9.5 billion tons of bulk cargo goods transported across the ocean, over 2 million tons enter the oceans, with 100,000 tons being potentially harmful to the marine environment, according to the IMO.

As could be seen from video released of the operation to flood the hold of the Wakashio starting 23 August, there was clearly cargo residue on the vessel that turned the water a murky color. While the vessel was an iron-ore bulk carrier, it was not clear whether toxicology tests had been taken of this residue. 

There are IMO guidelines around the OECD standards needed to conduct such tests and failing to conduct these tests could put the vessel in violation of the complex P&I rules that govern the vessel insurance.

c)      Recycling of ships

With a strong focus on environmental sustainability around the world, after several high profile stories about the end of life of vessels, the shipping industry has recently been moving toward the circular economy and recycling of materials. With a vessel the size of the Wakashio – in the top 1% of all vessel in the world, there were sizable quantities of various materials that could have been reused.

One of the other risks of sinking a vessel without fully understanding all the components that went into the construction of the vessel is the risk over many decades as the outer layers start to disintegrate. In the tropical reefs of the Pacific Ocean just South of Hawaii, many wrecks had to be removed at significant cost decades after being sunk due to the contamination caused to local habitats.

Those were vessels 10% the size of the Wakashio, and there has still been no public release of this information from local authorities or the owners of the Wakashio, even though this information should have been available at a click of a button from the shipbuilder, Universal Shipping of Kawasaki in Japan.

After four years of work, in May 2009, the International Maritime Organisation (IMO) adopted the Hong Kong Convention on the Safe and Environmentally Sound Recycling of Ships. There are clear guidelines on the protocols that must be followed in the disposal of any vessel at sea, including clear inventories of all environmentally hazardous substances such as asbestos, heavy metals, hydrocarbons, ozone-depleting substances and others.

d)     Harmful anti-fouling systems

Anti-fouling systems are systems (usually paints but other physical techniques can be used as well) that prevent the growth of algae and barnacles on the underside of vessels. Such growth slows the vessel and makes transportation a lot more fuel intensive.

However, the side effect of anti-fouling systems is that as they use several toxic chemicals. As these chemicals break up in the marine environment over time, they can cause additional harm. Examples include harmful organotin compounds in anti-fouling paints used on ships. In July 2017 controls on cybutryne were also restricted in anti-fouling paints when the IMO revealed that scientific data presented indicated that cybutryne causes significant adverse effects to the marine environment.

There is an entire body of law that governs the use and disposal of harmful anti-fouling systems on ships. This is called the International Convention on the Control of Harmful Anti-fouling Systems on Ships, and was adopted on 5 October 2001, coming into force on 17 September 2008, and governed by the IMO.

These are just some of the strict environmental laws designed to protect life in the ocean, as the ocean faces unprecedented pressures of climate change, overfishing, pollution and habitat destruction, amid fears of a large deoxygenation event occurring.

Which international court

Although the IMO is the body responsible for setting the standards of these laws, there are several other international courts that make judgements against whether such laws have been broken.

An important court of jurisdiction in this case is the International Tribunal for the Law of the Sea (ITLOS), which has several examples of cases of maritime pollution brought there.

There may also be many provisions in domestic law that had been violated with the decision to deliberately sink the Wakashio in the location decided upon, without following many of the well defined procedures that had been designed to protect the environment.

Who is responsible?

The responsibility of the decision to sink the Wakashio will be the subject of strong scrutiny. There are at least eight parties known to be involved with the Wakashio in the run up to the decision to sink the vessel.

a) Government of Mauritius

The Government of Mauritius had an important role to play. In a statement issued by Nagashiki Shipping to Forbes on 25 August, Nagashiki Shipping was very clear under whose guidance they had been operating.

“At approximately 0030 hrs, local time on Aug 19, the forward section of the hull was successfully re-floated and towed offshore to an area designated by the authorities. After that, they moved to the sea area designated by the Mauritius authorities to sink the hull and started work at 2100 hrs, local time, Aug 21. At 1500 hrs, local time, Aug 24, the front part of the hull was submerged and allowed to sink in the designated sea area of Mauritian territorial waters, in accordance with the instructions of the authorities.”

A level of detail within the Government may extend to which Department or Ministry may have been responsible and what was the legal basis of any decision (e.g., a collective Cabinet decision).

In addition, the monitoring, compliance and enforcement of MARPOL falls to Governments.  IMO has been given a role to carry out audits of Member States since 2016.

b) The flag state, Panama

As the vessel was Panama-flagged there are clear responsibilities for flag states that are set out by the IMO. Flag States (the State of registry of a ship) and port States have rights and responsibilities to enforce compliance.

Questions will be raised around the role of Panama Maritime Authority in its role in monitoring and enforcing compliance or Marpol, given that the Wakashio fell under its jurisdiction.  

c) France

Following the visit of French Overseas Minister Sebastien Lecornuu on 17 August, the Government of Mauritius issued a press release on 19 August 2020, in which they revealed, “The scuttling position and conditions are in conformity with the advice of the French experts present in Mauritius.”

It was unclear whether these were the experts brought in by the Government of France or French representatives of the cleanup companies. Questions will now be asked about the documentation and role of the French experts brought in by the Government to influence such a decision to sink the Wakashio when other more sustainable options were available.

d) Malta

In a statement on 19 August, Greenpeace Africa and Greenpeace Japan revealed that the two support vessels behind the towing operations, Boka Summit and Boka Expedition, were Malta-flagged. This meant that as Malta was party to Marpol regulations, these vessels would also be subject to this law too.

In an open letter to the authorities of Malta on 25 August, Greenpeace made inquiries into what actions Malta was now taking to look into the decision to deliberately sink the Wakashio and whether these Marpol regulations had been violated.

e) Japan

The Wakashio was a vessel built in Japan, owned by a major Japanese shipping company and operated by a Japanese shipping line. It had never been to Panama (from publicly available records). Japan had sent six experts to Mauritius since XXX. It was unclear what their roles and responsibilities had been toward the salvage operation, decision to sink the Wakashio and potential impact on the marine environment.

g) IMO

The IMO was established to adopt legislation and Governments are responsible for implementing them. 

When a Government accepts an IMO Convention it agrees to make it part of its national law and to enforce all of the provisions contained therein. The clear separation between the functions of the IMO and the functions of States.

However, in the case of Mauritius and the decision to sink the Wakashio, the issue is more nuanced. An IMO specialist had been deployed by the IMO to advise the Government of Mauritius specifically on any operations related to the leaking oil. His mandate – agreed between the IMO and the Government of Mauritius, and confirmed by a spokesperson at the IMO – did not extend to advising the Government of Mauritius on any aspect of the salvage operation that did not involve the oil spill.

Despite repeated questions to the IMO on the specific role and advice provided by the IMO representative on the ground with relation to the decision to sink the Wakashio, no answer has been forthcoming, raising questions whether the IMO itself could be liable for influencing the decision to sink the Wakashio against laws and standards that the organization is supposed to have set.

f) Shipowner: Nagashiki Shipping

Amid all of the Government interventions, the Wakashio was a privately owned and operated vessel by a large Japanese corporation. There are clear laws and rules that the owner and operator of the vessel have to abide by.

Despite several very straight forward questions asked by journalists at the outset, no answer has been received from Nagashiki Shipping on any of the information that could have a material impact on the health of the marine environment (such as amount of ballast water that was on the vessel at the time of sinking, and the origins of this ballast water).

In the year 2020 when advanced data science, cloud computing, machine learning and satellite technologies are available at the click of a button, the urgency of having this information is critical to a safe cleanup of all the pollution caused by the Wakashio. Delays in getting this information to the relevant parties impacted by this tragedy is not just a legal issue, but a moral one too.

h) Array of contractors engaged in the salvage operation

In a series of Government press releases, it was revealed that the overall salvage operation was being supervised by SMIT Marine. The pollution efforts were being advised by Polyeco and La Fluor Depollution. The Oil tanker regulator, ITOPFL was also involved.

This is a confusing array of specialists in an island nation that has never experienced a major oil spill before. As the world has demanded greater transparency of advice and recommendations, ordinary citizen of Mauritius have been surprised that 36 days after the grounding of the vessel, there has not been a single press conference or information release by any of these anonymous specialist.

If the clean up operations had been going smoothly, perhaps there would not need to be such scrutiny. But with 39 dead whales and dolphins (as of the last official count on Friday 28 August), important questions are now being asked on the liability of organizations who had provided such advice supporting the sinking of a vessel that could have been in violation of international law.

A case of ‘Who Did It’

As the mystery surrounding the Wakashio deepens, so too does the complex web of legal cases on every aspect of the operation.

The decision to sink the Wakashio was a controversial one. It was done in full light of media scrutiny at a time when the public was demanding answers. The lack of answers from 8 individual sets of actors over this decisions, has raised alarm bells around the world, as shown by protests not just in Mauritius – but in front of embassies around the world.

Understanding basic scientific information about the ship inventory, ballast water, toxic materials, location of the sinking should not be a game of ‘cat and mouse,’ where one needs the skills of Hercule Poirot or Agatha Chirsties to figure out ‘who done it.’

In addition to the legal aspects of the case, there are now moral questions being asked about the global shipping industry, and how such a global industry could have been allowed to operate in such opaqueness for so long, impacting the lives of so many of the poorest populations.

There are 39 dead whales and dolphins on Mauritius’ beaches, and 36 days since the grounding of the Wakashio, many are none the wiser why.