Mauritius: Wakashio Disaster - What will it take to heal the wounds?

analysis

Mauritius suffered the worst single environmental disaster of its history in August 2020, when approximately 1,000 tonnes of heavy fuel oil leaked uncontained, into an area sheltering some of our country's most sensitive ecosystems.

While we had some notable conservation success stories on land, Wakashio illustrates a massively contrasting situation in our oceanic territory. What is the purpose of enforcing sovereignty on a massive area of ocean if we are unable to act to protect this territory when it is threatened? If we are to justify ourselves as the true custodians of our ocean territory, Mauritius has a moral obligation to monitor, manage and police our seas with the resources befitting our status. With this duty to act also comes a responsibility, even an obligation to future generations, to seek maximum compensation for the disaster, with the proceeds to be used to in a transparent and accountable manner heal to the Wakashio wounds and towards proper protection of our seas.

Sovereignty as a Large Ocean State

Mauritius has been described as a Large Ocean State: With some 2.3 million square kilometres of ocean Exclusive Economic Zones (EEZ), our ocean sovereignty is over 600 times larger than our terrestrial sovereign area[1]. Over the last three decades, successive Mauritian policymakers have made an "ocean economy" a pillar of their rhetoric for growth. The Wakashio Disaster has sounded in a deafening daily rhythm the hollowness of that pillar. Climate change and food security are the most critical challenges facing humanity. In that context, sustainable monitoring and management of the EEZ hand in hand with conservation, has to underpin any ocean economy strategy.

By contrast, the authorities' own explanations of the Wakashio grounding and its aftermath has highlighted that Mauritius lacks the resources and expertise to police its waters - not the massive EEZ but even coastal waters within a few miles from our shores. Mauritius has had some major recent success in legally enforcing sovereignty over its EEZ, in particular over the Chagos Archipelago. This has been a laudable endeavour by the government, to address one of the major injustices surrounding our independence and post-colonial history. However, one has to raise questions as to the purpose of this effort if that sovereignty cannot be practically enforced and the EEZ turns out to be an unpatrolled highway for foreign cargo ships and a venue for uncontrolled fishing for the world's fishing fleets.

Healing the Wound

The Wakashio accident has highlighted the unique bond that ordinary Mauritians have with the sea. Photos of the oil spill show a literal black wound on that turquoise lagoon of the South East, which has in turn been deeply felt as a gaping gash on the island's psyche. This will take decades to heal and still leave scar tissue. There are a few necessary conditions to this healing:

Investigation: A process that is seen to be totally transparent for shedding light on what led to the accident and its management in the aftermath of the grounding until and beyond the oil leak. The accident has raised countless questions and it is most welcome that the Mauritian Government has committed to a Court of Investigation as foreseen under the country's Merchant Shipping Act to ensure full transparency, especially in the light of the many conspiracy theories that circulate and private lawsuits that have been initiated.

Accountability: The population want to see justice for those responsible in accordance with the law and with principles of good governance. This cannot be only the captain and crew of the ship as the perception is that much more has gone wrong than a ship merely running aground on a reef.

Compensation: Securing the maximum possible compensation for the country for the disaster and making sure that those directly and indirectly affected are in turn adequately compensated in a transparent and accountable manner.

Action: Mauritius is a newly designated High Income Nation that is also a Large Ocean State. Government needs to ensure that take the actions to match our status and ambitions to ensure that such an accident can never again occur, and we can step up as true custodians of our massive zone of oceanic sovereignty. These actions can take the form of targeted technology-led investments, partnerships with regional naval powers, and innovative financial solutions to achieve the maximum impact within realistic budgetary constraints faced by the country.

Maximum Compensation: "Whatever It Takes"

In a press conference on 17th August 2020, the Mauritian Finance Minister Renganaden Padayachy used a phrase coined by Rishi Sunak the British Chancellor of the Exchequer in the context of COVID-19, to describe the Mauritian Government's approach in assisting those affected by the Wakashio catastrophe: "Whatever it takes". This mindset is to be applauded and the same approach should direct the authorities' efforts in terms of seeking the maximum possible compensation for the disaster and the direct and indirect damage caused. Arguably monetary compensation can never be adequate to address the loss of biodiversity and of livelihoods that such a calamity will cause, but that is further moral justification to ensure that maximum compensation is obtained.

From a tactical perspective, whether we recognised it or not, the negotiation for compensation started the moment when the vessel rammed into the Pointe d'Esny reef at cruising speed on 25th July 2020. It is incumbent on the Mauritian authorities to hire the best international legal expertise immediately to ensure that they are not simply being led by the interests of the ship owners Nagashiki Shipping, the salvage company they have commissioned, the operators Mitsui OSK, and the ship's insurers Japan P&I Club. It is highly significant that, while expressing remorse, the owners of the Wakashio have stated their intention to compensate "in accordance with applicable law". They are effectively stating their intention to stick to the strict letter of the law and nothing more. We therefore need to ascertain what is the relevant applicable law in this context.

Article 195 (d) of the Mauritian Merchant Shipping Act 2007 specifically carves out any limit on liability arising from pollution damage. There is however a technical legal question as to whether it would be this piece of legislation that would apply or the international maritime legal conventions. Had the Wakashio been an oil tanker, Mauritius would have had a much stronger hand in this poker game as we could have relied on the International Convention on Civil Liability for Oil Pollution Damage, which is itself supplemented by the International Oil Pollution Compensation Funds. Under this regime, the total compensation available could have reached 750 million IMF SDRs[2] or c. USD 1.1 billion.

However, as a bulk iron ore carrier rather than an oil tanker, the Wakashio is not covered by these particular conventions. Instead, the international legal framework to pursue any compensation is likely to be the International Convention on Civil Liability for Bunker Oil Pollution Damage, known as the '2001 Bunker Convention', to which Mauritius is a signatory. Under this convention, liability caps are based on the gross tonnage of the vessel, based on which the Wakashio's liability would be limited to a range of USD 18 - 43 million as estimated by Clyde & Co, a leading specialist law firm. However, if the legal analysis is that the Mauritian Merchant Shipping Act trumps the Bunker convention, the potential recovery for pollution damage would be substantially higher.

If the Bunker Convention applies, the range of potential recovery would be puny when compared to the damage caused and for that reason, other avenues need to be pursued in order to increase the envelope of potential recovery for the nation. One such additional avenue would be to claim for damage to the reef, in addition to the pollution damage. Mauritius could seek expertise from Egypt in this area, owners of the Suez Canal as well as protectors of some of the most dramatic coral reefs in the world in the Red Sea. This combination of sensitive coral reefs and some of the planet's busiest shipping lanes has resulted in many groundings over the years. As a result, Egypt has established a widely respected legal framework for damage caused to reefs. This framework has been used to successfully obtain compensation in other countries, notably recently in Indonesia.

In addition to the strictly legal questions, another critical piece of negotiating leverage that the Mauritian authorities could use is the way in which the vessel wreckage is to be disposed. This is very pertinent and timely indeed given that larger front part of the vessel has been towed away and scuttled at an undisclosed location to the South of Mauritius. At a joint press conference on 16th August between the French Minister for Outer Oceans, Sebastien Lecornu and the Mauritian Minister of Environment, Kavi Ramano, the French minister put Mauritius publicly on notice not to be led by the ship owners' experts and to wait for the input of French experts on the matter. In addition to the environmental risk it is likely that the compensation issue was also at the back of French minds when the issue of wreck disposal was raised.

Wreck disposal has become a highly sensitive issue due to its rapidly escalating cost in recent years. This was most visible in the removal of the 'Costa Concordia', the cruise liner that sank off the coast of Italy, which will end up costing its owner Carnival Cruise Lines some USD 2 billion and several years of work. Similarly the Rena, a container ship that ran aground on a reef off New Zealand in 2011, cost some USD 450 million to safely remove. The owners of the Wakashio have an incentive to get rid of the wreck as quickly as possible and lose it somewhere in the depths of the Southern Ocean. This is the most cost-efficient course of action for them. Mauritius's incentive is exactly the opposite. We would want the pieces of the wreckage to be held back as long as possible to be used as bargaining chips in a negotiation with the Wakashio's owners and insurers, and indeed with the Japanese government. Mauritius would want to ensure that (i) the wreck is disposed of in the most environmentally sustainable manner possible (which is also probably the most expensive), and (ii) any deviation from this most sustainable disposal method would have to be paid in terms of incremental monetary compensation to Mauritius, over and above what would be available strictly under applicable law. In that context, the towing away of the larger part of the vessel, apparently at the behest of the ship owners and their experts, seems to be tactically a highly questionable decision even putting aside the very valid environmental concerns highlighted by Nishan Degnarain in Forbes and others. Tactically therefore, there should be no rush in disposing of the rest of the Wakashio. We should get used to the remaining piece of the vessel still embedded in the Pointe d'Esny reef - it should remain a feature of the landscape for as long as it takes, as a symbol of Mauritian commitment to securing maximum fair compensation.

Simply relying on applicable law may not yield an acceptable outcome for Mauritius in the face of this calamity. We require instead a coordinated strategy involving: (i) robust independent scientific assessment and documentation of ecological, economic and societal damage. This needs to be led by government to make sure that all aspects of the damage and all claimants are included in a systematic and comprehensive manner. Given the obvious conflicts of interest, this assessment cannot be left only to experts supplied by the ship owners and Japan; (ii) Expert legal tactics using all possible avenues of recourse; and (iii) A panoply of diplomatic pressure points using all the negotiating skills and lobbying efforts that we can source both locally and internationally. This effort has to be informed by the very best international scientific and legal expertise in the field.

This will not be cheap but given what is at stake this cost is fully justified, as was the case with the Chagos proceedings in multiple jurisdictions. In addition, the lobbying and diplomatic avenues need to be tried in a systematic manner. The ship owner and operator of the Wakashio are both Japanese corporations and Japanese Prime Minister Shinzo Abe has appeared keen to highlight Japan's credentials as a global leader on environmental matters including being a founding member of the High Level Panel for Sustainable Ocean Economy. Mr Abe needs to be reminded of his nation's moral duty towards Mauritius in ensuring that compensation for the Wakashio Disaster is not limited only to what would be available under a strict interpretation of the law, but rather what is fair from a moral and ethical perspective in proportion to the scale of the catastrophe.

The Moral Obligation to Act to Protect our Oceans

Mauritius has taken the correct decision as a nation not to invest in a military capability. We have instead relied a network of alliances with friendly nations to ensure that our national sovereignty has not been threatened in any meaningful way since independence. However, in the context of being a High-Income Nation and a Large Ocean State, abdicating responsibility for ensuring the sovereignty of our oceans is no longer a tenable position. We can no longer use the card of being a poor country that does not have the expertise or funds to patrol its EEZ. There is a glaring paradox between the Mauritian Government's excellent recent wins in confirming Mauritian sovereignty over the Chagos Archipelago in all the applicable legal forums including the United Nations, and the apparent inability to enforce this sovereignty in any meaningful practical way.

The oil spill also shows that this abdication of responsibility for monitoring our oceans places massive risks on our marine environment, our single most important economic endowment, critical to today's tourism and fisheries industries, notwithstanding new ocean-driven revenue earners that may arise in future. One of the arguments put forward by the UK Government to counter Mauritian legal manoeuvres around Chagos was that they would do a better job at protecting the oceans around the archipelago by setting up a Marine Protected Area. While this argument rightly did not stand scrutiny under international law and indeed in the court of international public opinion, there is little point in winning the legal and moral argument if we then cannot practically protect these critical and sensitive ecosystems.

We therefore need to act to the scale of our ambitions as a High Income, Large Ocean State that has successfully challenged the UK and the USA in the most respected of international legal forums. Investment in a system of monitoring and policing of our EEZ that is fit for purpose, can therefore no longer be avoided. This investment does not have to be massive in quantum, as technology is available today that makes it possible to monitor and even police the oceans in an 'asset-light' manner, at a fraction of what it would cost only a few years ago. As highlighted in another Forbes article, one example of this is the revolutionary combination of satellite imaging and data science that underpins the services of Windward, an Israeli-headquartered company with a mission to "Make the seas safer and help the maritime ecosystem thrive through data and insights". Similarly, unmanned, solar and wind powered ocean drones are not the stuff of science fiction. Several private companies offer these solutions, notably Saildrone and Ocean Aero, both headquartered in California. These unmanned drones could be provided on an outsourced results-based "solution as a service" model that would certainly be more cost-efficient and effective for the country than the slumbering, bumbling routine of our allegedly manned National Coast Guard.

For more robust policing when this might be required, an approach could be to strike cooperation agreements with one or more of the countries friendly to Mauritius. This would be a much more cost effective and efficient method than investing large sums into coast guard ships that spend more time in port than out on patrol. France and India are obvious candidates given their long-term strategic interests in the Indian Ocean. China would likely be keen to help as part of its Belt & Road Initiative. Japan could be a candidate, as part of a wider Wakashio settlement. Such arrangements would not have to compromise Mauritian sovereignty on its EEZ. Rather, a mutually beneficial relationship could be to allocate specific parts of the EEZ where responsibility for policing would be delegated to the friendly naval nation under the ultimate control of Mauritius, in return for privileged access to marine resources, provided these were in turn utilised in a sustainable manner that also benefits Mauritius economically.

Another path to follow is that of our Seychellois brothers. Seychelles has quietly acquired the status of world pioneer on environmental matters. Their Blue Bond, is a highly innovative financial instrument structured and executed by the Nature Conservancy, an NGO set up by former global financiers who use their wealth of experience to design imaginative financing solutions to address conservation and climate change challenges. In the case of the Seychelles, an initial USD 21 million of the country's national debt was acquired by sustainability-focused investors and philanthropists and effectively cancelled, provided that the country invested the debt-service savings in sustainable monitoring, management and policing its EEZ. As part of this, Seychelles committed to a comprehensive Marine Spatial Plan covering their entire EEZ of 1.4 million square kilometres, with 30% of the EEZ or 410,000 square kilometres being set aside as a Marine Protected Area. The first such Blue Bond funded the setting up of Cabo Pulmo National Park in Baja California on the West coast of Mexico, resulting in a 400% increase in fish stocks within 10 years of its creation. Mauritius' national debt stands at some USD 10 billion and a small portion of this could be restructured as a Blue Bond with the proceeds invested into EEZ conservation and management for the country's long-term benefit.

The outline of a strategy for active management of our ocean sovereignty would therefore constitute of the following pillars:

Pursue a "Whatever It Takes" strategic approach to seeking maximum compensation from the owners of the Wakashio and the Government of Japan;

Allocate a portion of the compensation received for investment into the means to monitor and police our EEZ that are proportionate with our ambitions and status as a High-Income Large Ocean State;

Proactively explore and be prepared to use all commercially available technologies to achieve effective monitoring and policing of the EEZ in a cost-efficient manner that is sensitive to our budgetary constraints;

Strike partnerships with friendly naval powers with a strategic interest in the Indian Ocean to assist in enhanced policing when this may be required;

Leverage the investment from the compensation received through Blue Bonds and other innovative forms of financing in order to maximise the 'bang for the buck'.

An Historic Opportunity

The calamity of the Wakashio represents a wound on our nation's psyche, just as it is a physical wound on the historic seas that witnessed the Battle of Vieux Grand Port. We will live with the consequences daily, for a long time to come: At the time of writing, simply heart-breaking images are appearing of marine mammals washing up dead on our shores. It has triggered a wave of national solidarity in stark contrast with recriminations and conspiracy theories doing the rounds of local and international media channels, which will ultimately only be laid to rest through clarity and accountability.

We have banged the drums of sovereignty in the most revered theatres of world diplomacy. This is an historic opportunity to show that our actions can live up to the rhetoric that convinced the world. It is only through our actions that we prove that we are a nation worthy of trust as custodians of this massive sovereign oceanic territory. Let these not be mere lines on a map but living oceans that we care about with all our beings and our souls.

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