I was privileged to attend the ILA conference on September 19 -20 , 2019 in Portugal Braga in relation to recent caselaw of the ICJ where I spoke on the Chagos Issue and the recent ICJ advisory opinion and its legal implications for Mauritius. Little did I dream that one year later, Mauritius would face the worst ecological disaster in its history. And yet after we were badly struck by the Covid 19 pandemic this year which has brought our economic and touristic activity to a standstill, this month we were to face yet another even more dramatic tragedy in our territorial waters.
The ship, MV Wakashio, operated by Mitsui OSK Lines, a Japanese company, struck the reef at Pointe D’Esny on Mauritius’ southeast coast on July 25. For unknown reasons that have yet to be established by enquiry, it appears that the vessel deviated from its normal route which brought it unusually close to the south east coast of the island. The vessel contained some 200 tons of diesel and some 3800 tons of bunker fuel. After staying grounded on the coral reef for some 12 days and unfavourable climatic conditions, on August 6, oil started leaking from the cracked vessel due to cracks on the ship. At least 1,000 tonnes of oil is estimated to have leaked from the ship onto the waters surrounding Mauritius since then. As at August 10, 2020, Some 500 tonnes of oil have been salvaged from the ship, but there are still 2,500 tonnes remaining on the ship. Experts have estimated that it will not be long now before the ship breaks in two or more pieces.
Mauritius declared a state of “environmental emergency” on August 7, 2020 following the oil spill. It also appealed for foreign help to secure the ship and its fuel as well as clear the ocean. Several places close to the shore have been declared restricted areas in order to clear up the pollution. The heavy smell of the fuel is now prevalent in many places close to the shore, many fish and other aquatic life have died in the oil leakage. It represents a major health hazard. Schools close to the shore have had to be closed for the safety of children. Fishermen are out of work. Hotels found close to the shore are also affected.
It is feared the oil spill is the worst ecological disaster faced by Mauritius and would endanger its marine ecology. The ship has been stuck in a very sensitive zone which includes the Blue Bay Marine Park, Iles aux Aigrettes, and the Ramsar sites. The South east coast is home to a protected marine park boasting unspoiled coral reefs, mangrove forests and endangered species. Wildlife workers and volunteers moved dozens of baby tortoises and rare plants from an island near the spill, Ile aux Aigrettes, to the mainland as fears grew that worsening weather could tear the ship apart along its cracked hull. Mauritius, a popular touristic destination, famous for its pristine beaches is heavily reliant on the tourism industry. Last year the tourism industry contributed 63 billion Mauritius rupees (1.2 billion pounds) to the economy.
Mauritian volunteers stuffed fabric sacks with sugar cane leaves to create makeshift oil spill barriers to protect the shores. There was a huge wave of solidarity as Mauritians donated their hair in an effort to clear the fuel leaked into the ocean. France has also despatched specialist teams and equipment to Mauritius to help contain the spill.
Akihiko Ono, executive vice president of Mitsui OSK Lines, apologised profusely on August 9 for the trouble caused and promised to do everything in their power to remedy to the situation. However, Neither Mitsui OSK Lines nor Nagashiki Shipping, the ship’s owner, could confirm the cost of damages from the oil spill. According to the Japanese Foreign Ministry, a six person disaster relief team is being despatched to remove the oil spill in Mauritius. France also sent specialist team and specialised equipment to help contain the oil spill as well as clean the ocean.
In a law of the sea perspective, I would like to seize this forum to invite for further debate on this issue. This ecological disaster raises a number of issues in relation to law of the sea :
- Is there an international maritime law perspective to this issue? The safety of island states when it comes to sea routes employed by ships of this nature in the Indian Ocean. This might need to be reviewed.
- The main question which arises is why the ship was so close to the Mauritian coast as to endanger its marine ecosystem. We would need to consider the shipping routes in future to prevent such calamity from arising. There would be need to have shipping routes situated at a safe distance from protected marine sites.
- We would need to consider if there is an international maritime protocol to be set up among states over and above the contract done by the ship owner and its insurance company in such situations with a pool of reliable experts and speedy relief team so that we do not need to wait for 12 days before relief starts pouring in. The main criticism which arose in this case is also that the local authorities took time to act.
- The irreversible damage caused to the environment, the sea, the different stakeholders of the tourism industry and the Mauritian economy would have to be evaluated. The fact that the ship was grounded within the Mauritian territorial waters, it would appear that the Mauritian government would have the locus standi to act as a party and claim damages. However, from a law of the sea perspective, who is the party who can claim the damage? Is it the Mauritian government, or the different stakeholders affected in their own capacity.
- The next thing is who is the one responsible and who is liable for this major damage caused to the environment. Why did the ship deviate from its normal course? Is it the ship owner? The one responsible for the deviation of the ship? Is it the insurance company?
- Taking into consideration that Mauritius does not have the adequate technical and scientific resources needed, a proper response from the ship owner would need to cover the immediate planning works needed, a safe place of refuge for the ship to avoid further damage to others as well as a long term plan to cover the environmental impacts
- Is there an international human rights law perspective to this whole issue and case to be met before the ICJ in the event we face the worst case scenario that the ship breaks spewing into the ocean the 2500 tons of fuel still on board and seriously damaging the marine bio diversity and seriously endangering the livelihood of all those depending on the tourism industry.
The above are some of the questions which I consider we will need urgent answers to in order to redress our situation in Mauritius. I would be grateful to have the opinion of one and all on these issues as well as any other relevant legal issues which you may deem to arise in such a situation. Your legal views would be most valuable in this crisis situation.
I wish to thank Me Fabiana Ventura Piassi who graciously proposed to me to write a post on this issue for the Brazilian Law of the Sea website. I am immensely grateful to be able to share some of my concerns with you all and raise the debate on this issue.
Miss Pareemala Devi Mauree
Chevening Scholar Queen Mary University
Principal State Counsel
Ex Senior District Magistrate