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It has appointed a Special Rapporteur to look into these issues and report back.
Earlier this week, a special investigation in Forbes revealed a growing scandal behind this year’s hasty introduction of a highly hazardous and experimental type of oil in ships.The ship fuel is called Very Low Sulfur Fuel Oil or VLSFO. It contains a wide variety of undefined toxic chemicals, is now in 70% of all ships, and is likely to be an important focus for the inquiry. This fuel – which NGOs have referred to as a super-pollutant ‘Frankenstein Fuel’ – is already suspected as a leading root cause of many shipping disasters around the world, putting the lives of sailors and coastal communities at risk, due to the use of unknown and highly volatile chemicals.
The lead investigator for the UN Human Rights Agency has already begun interviewing officials at the global shipping regulator, the International Maritime Organization. The inquiry will continue collecting evidence through to 31 January 2021.
The investigation will cover both the human rights implications for seafarers on vessels who would have been exposed to the effects of toxic chemicals, as well as to those impacted by oil spills, such as islanders in Mauritius this year and Solomon Islands last year.
Special Rapporteur on toxics and human rights
The U.N. has called the exposure of people to harmful substances without their prior informed consent a Human Rights abuse. It has also said that it is a human rights issue for which solutions exist. The question the Special Rapporteur will focus on is why known solutions had not been applied in the shipping industry.
The U.N. has been looking at Human Rights abuses linked to hazardous substances since a formal mandate was established by the U.N. Human Rights Council 25 years ago in 1995. On 6 October 2020, the U.N. Human Rights Council passed a resolution to look deeper into several issues associated with exposure to harmful substances without prior consent.
The Special Rapporteur on toxics and human rights is Dr. Marcos Orellana who was appointed earlier this year by the UN Human Rights body.
Orellana teaches Environmental Law at George Washington University School of Law in the United States, and had been involved in several high profile environmental justice cases. These have covered international human rights law and the environment including presenting at the U.N. Human Rights Council, International Tribunal on the Law of the Sea, and in participating in international negotiations on Climate Change. He was worked extensively with Governments and NGOs around the world.
UN Human Rights Chief taking a stance for Environmental Defenders
The Head of the UN Human Rights Commission – former two term President of Chile Michelle Bachelet – has been a strong advocate for protecting Human Rights of what she describes as the planet’s ‘Environmental Defenders.’
In 2019, Bachelet brought up these human rights issues against environmentalists at the U.N. Human Rights Council, specifically highlighting the verbal attacks against the then 16 year old climate activist Greta Thunberg.
In August last year, the UN Humans Right Office signed a formal agreement with the UN’s Environment Protection Program (UNEP) to strengthen human rights and the planet.
At the time, UN Human Rights Chief, Michelle Bachelet said, “Our planet is being recklessly destroyed, and we urgently need stronger global partnerships to take action to save it. We call on leaders and governments to recognize that climate change and environmental degradation severely undermine the human rights of their people, particularly those in vulnerable situations – including the generations of tomorrow.”
“We encourage every State to develop and enforce national legal frameworks which uphold the clear linkages between a healthy environment and the ability to enjoy all other human rights, including the rights to health, water, food – and even the right to life,” she added. “We also strongly encourage greater recognition that the actions and advocacy of environmental human rights defenders are deeply beneficial to all societies. They must be better protected against the threat of violence and intimidation.”
Reports suggest that more than four environmental defenders were killed across the world every week in 2019. This rate has doubled in the last 15 years. The latest death toll highlights the ongoing dangers facing those who are defending their environmental and human rights.
Scope of the toxins and human rights inquiry into the shipping industry
This is the first time the global shipping industry has been subject to such a wide ranging Human Rights inquiry over exposure to toxins without consent.
The inquiry will also look into many of the root causes for how the industry has allowed such a situation to develop in shipping, such as poorly drafted laws, little oversight and monitoring of these laws, deliberately weak enforcement, pressure on poorer nations and communities to be responsible for cleaning up the risks caused by large shipping firms.
There has been a growing spate of maritime incidents that many local communities around the world have been calling for justice on. These include communities in Trinidad, Venezuela, Sri Lanka, around the coast of the Red Sea, Mauritius and Lebanon just this year alone.
There are three themes that are likely to be particularly important for the investigation into shipping, human rights and toxins.
1. Impact on communities impacted by oil spills and ship pollution
The Special Rapporteur has highlighted that he will look at both toxins spilled from ships, as well as air pollution released from ships that are adding to the climate crisis.
Climate crisis: Indigenous communities in Arctic nations, and coastal communities on low lying island nations are particularly impacted by melting ice caps, rising sea levels and more acidifying oceans impacting coral reef protection. This year, the global shipping industry not only decided to break with Paris Climate Agreement pledges, but the Secretary General of the IMO actively tried to undermine the EU’s own carbon emission regulations for shipping. This is in addition to the U.K. Parliament already calling the IMO no longer ‘fit for purpose,’ for its stance on climate issues. Global shipping has been particularly criticized for using toxic chemicals in ship fuels across the Arctic that could accelerate climate change.
Toxins in ship oil (especially the VLSFO ‘Frankenstein Fuel’): The Special Rapporteur will also be looking at the risk of oil pollution, which has been increasing as ships have become larger, and yet ship designs and protection have not kept pace, a sign of major regulatory failure. The fuel now used by 70% of ships, called VLSFO and which was introduced this year, is likely to be a major focus for the Special Rapporteur.
Tens of thousands in Mauritius were exposed to VLSFO in the summer, and the shipping companies responsible have not provided a full chemical analysis breakdown of the toxins that the population was exposed to, including what the health risks are. This represents a major human rights abuse, as many in South East Mauritius who were exposed have been reporting serious health conditions (e.g., skin infections, breathing difficulties and mental illness), that have not been taken seriously by the companies responsible for bringing the pollution to Mauritius. Other communities impacted by ship fuel spills like Solomon Islands last year have seen similar experiences.
Gender impact of oil spills: Oil spills have a disproportionate impact on women. The chemicals have a much more significant on female reproductive organs and health, affecting the health of unborn children. Many women faced greater social and financial pressures following the oil spill as they had been employed in the informal sector (e.g., supporting husbands in the fishing business or making tourist products to be sold on informal beach stands), and so were not eligible for any compensation from funds allocated to the response. The gender dimension was completely dismissed by the companies and countries responding to the oil spill disaster in Mauritius, where in over 100 international consultants, not one was female. This created additional conflict in a country like Mauritius, where it was actually many of the female leaders who had led the response to the oil spill and the fight for environmental and social justice.
Human rights abuses in the response to the oil spill: In what is likely to be a damning assessment of the corporate response to the oil spill in Mauritius, the Special Rapporteur’s scope includes evaluating potential human rights abuses in how the oil spill was responded to. In Mauritius, the response by companies responsible saw a massive disruption of the social cohesion of Mauritius. The grassroots led movement that built the artisanal oil protection booms were sidelined by over 100 unaccountable international consultants who never once held a joint press conference to explain what was going on nor allowed any independent oversight of the cleanup techniques they were deploying.
Instead, these companies engaged in secretive talks with a Government who was already under pressure following a disputed election that is still undergoing a Law Court review. As a result, Mauritius experienced a massive clamp down on human rights, specifically targeted at Environmental Youth Activists, Journalists and community organizers. The reported abuses included strong-armed use of the police and judicial system, suspension of parliament as well as targeted digital interventions on platforms like Facebook, Google GOOG -1.1%, YouTube and Whatsapp in the months following the Wakashio oil spill. The inquiry is also likely to look closely into how the lawyers of the captain of the Wakashio was controversially dismissed and replaced by lawyers engaged by the shipowner and insurer, a human rights abuse practice seen often in the shipping industry.
2. Working conditions on ships
The U.N. will also look at the working conditions on ships. The introduction of VLSFO has made working conditions much harder for seafarers around the world (especially given COVID-19), impacting their human rights.
It has had three effects on the human rights of seafarers.
Unknown chemical impacts of VLSFO on seafarers: First, there is the question whether seafarers were made aware of the chemical contents they were being exposed to with VLSFO, and the potential toxic effects? Many seafarers would have needed to be in direct contact with these chemicals in the engine rooms, and may be experiencing the side effects of exposure (breathing and by touch) of these chemicals.
Increasing workload without additional support: Second, the engine issues caused by VLSFO has made working conditions much harder on board vessels. Workload would have increased as a series of mechanical and engine failure on ships put more pressure on crews. It is unclear that this additional workload has been discussed openly with labor unions and workers. Had crew sizes been amended appropriately to take into account this additional workload (which may have required 1 or 2 additional crew on board a 20-person vessel just to handle the complications caused by VLSFO fuel). This would have placed much more significant pressures on ship crews forced to stay in cramped conditions for over a year due to the coronavirus pandemic. It would also look at shipowner’s practice of attempting to blame human error for most shipping incidents, rather than address the underlying systemic risks caused by how poorly the industry is regulated. This was made more complicated this year with COVID-19 restrictions on crew changes, creating a humanitarian crisis on the seas.
Discarding toxic waste overboard: Third, questions are likely to be asked about how ship crews, captains and owners of vessels were handling these toxins. VLSFO has been shown to create excessive toxic sludge than previous types of ship fuel. Shipowners like Carnival Cruises CCL.U 0.0% were fined $40 million for dumping excess sludge overboard using hose pipes attached to the engine (the famous ‘magic pipes’ incidents), when a whistleblower exposed this practice. Why is there not more effective monitoring in place on vessels around the world? Are there human rights abuses against crews who are then forced to dump these chemicals overboard or face even stronger penalties from shipowners on shore? Just as police cameras have become accepted tools to ensure compliance by law officers, why isn’t the equivalent being applied to vessels around the world with ships? This includes cameras, that artificial intelligence can use detect pollution violations, as well as sensors, where severe fines would be imposed for any tampering with these sensors. Countries like Venezuela have experienced ships dumping oil around its coasts, and there are reports all around the world of this taking place, without sufficient oversight.
3. Shipping industry conduct
At the heart of the Human Rights inquiry has to be the regulation of the industry. The real question is whether the IMO the most effective body through which the regulate global shipping? Many are starting to call for more effective regional governance models, similar to how global fisheries are governed.
The Wakashio epitomizes all that is wrong with the global shipping industry, linked to how insurance, inspections, and management oversight works in shipping.
For example, some of the key questions that the Wakashio reveals are:
- Lack of transparency: Why was the Wakashio dumped at sea, when there are laws that have been passed to prevent this (2007 Nairobi Convention on Wreck Removal and 2007 Hong Kong Convention on Disposal of Ships). The fact this happened with the apparent knowledge and advice of the IMO is particularly troublesome – for both legal and signaling reasons. Until now, there has been no transparency of what toxins were being carried on board, which led to over 50 whales and dolphins dying within days of the sinking of the vessel. Until now, the toxicology reports from the deaths of the whales and dolphins have not been released. The vessel was secretively sunk in a location that means decades of pollution being pushed against the coast of Mauritius and Reunion island.
- Deliberately weak enforcement of regulations: As highlighted by the Wakashio, even when the potential violations of various IMO laws were pointed out, rather than have any accountability, the IMO avoided any scrutiny and until now, no senior official has commented on the Wakashio and what the IMO knew. This covers every aspect of the IMO from anti-fouling, shipbreaking, hazardous waste, chemical pollution, safety of navigation. The IMO may have several large volumes of law, but these are seen as papering over the cracks that allow shipping to essentially operate in an unregulated manner regarding the marine environment. Most of these laws are not worth the paper they are written on, as they undermine the rights of the poorest and most vulnerable. For example, laws like the 2001 Bunker Convention were deliberately designed to reduce the amount of compensation to coastal communities for the damage caused. The costs to service the shipping industry is thrust upon poorer coastal communities who are accused of not having sufficient numbers of tug boats or oil protection booms, even though such tug boats are not required for local operations. Why should small island taxpayers be responsible for subsidizing the safety requirements of the global shipping industry that bypass their territory?
- Lack of voice: The inquiry may also explore why the IMO is structured in such a way that coastal, island and indigenous populations do not have any voting rights in decisions made at the IMO which impact them. Only a dozen nations with the greatest ownership of global shipping dominate proceedings. This includes the six offshore ‘Flags of Convenience’ nations and the large ship owning countries that take advantage of these (e.g., Japan, Greece, South Korea, China). Decisions taken at the IMO impact the sort of chemicals and toxins that are in the ocean (such as the growing risk of plastic nurdles).
- Undermining of community efforts: The conduct of the shipping industry in responding to the oil spill has demonstrated how international scientists and local independent scientists were elbowed out, and a highly opaque operation took place, that increased the harm caused to the marine environment around Mauritius. It was heart wrenching for many Mauritians to witness the dead dolphins, whales, the sinking of the large bow of the Wakashio, and issues with coral reproduction this year around Mauritius’ marine park. Even though these issues were flagged, the international consultants were more interested in their own corporate protection than putting the rights of the local community and nature first, including a fundamental Human Right of democratic accountability over actions taken in their own country.
IMO under particular scrutiny
The Special Rapporteur appears to be particularly focused on abuses linked to how global shipping is regulated by the IMO.
Several key international marine anti-pollution conventions were specifically highlighted, such as Maritime Pollution MARPOL Laws, Safety of Life at Sea SOLAS laws, Hong Kong Ship Disposal Convention, the Anti-Fouling Convention, Ballast Water Conventions, Civil Liability and Fund Conventions for Oil Pollution, the Dumping Convention.
The nature of a major VLSFO spill and the deliberate scuttling of the front section of the Wakashio would fall into this category, and epitomizes why major change is needed in the industry.
Ensuring there is a review of the entire shipping industry
Another key question that the Special Rapporteur may need to grapple with is the scope of how the shipping industry is defined.
Part of the risk lies with the IMO and ship operating companies. However, the reason why much of the Human Rights abuses linked to toxin exposure continues to exist, is also due to how shipping insurance, ship owners and financing companies, salvage companies, the inspection regime (called Classification Societies) and ‘Flags of Convenience’ ship registration jurisdictions like Panama, have been allowed to operate.
Only by interviewing all participants in the shipping industry value chain, will the Special Rapporteur build a picture for how the industry came to end up where it did by the end of 2020 – the world’s most dangerous and unregulated industry in the world.
The Wakashio disaster was a needless tragedy for the local community and the environment of Mauritius. However, the ongoing response by the industry to not address root cause issues within shipping is what allows the industry to continue lurching from one catastrophe to the next.
With other U.N. bodies now taking a closer interest in the events of last summer, it is hoped that more systematic risks in the shipping industry can finally be addressed.