The Ocean Governance and Justice Snag

Given the limitations of relying solely on governmental law enforcement at sea, the private sector assumes a crucial role in addressing obstacles related to ocean governance and justice. Shared responsibility is essential to ensuring justice and upholding the rule of law aboard ships, underscoring the pivotal role of the private sector in these efforts.

The Ocean Governance BlueSecurity framework offers a forward-thinking approach to ocean governance, emphasizing the principles of cooperation, transparency, and accountability among all ocean stakeholders.

THE ESSENCE OF JUDICIAL PRINCIPLES

The obstacle is actually a severe problem that must be address by flag states. According to UN Convention for the law of the sea, flag states are responsible to exercise jurisdiction on ships flying their flag. Meaning, they have to ensure the application and adherence of their legal order and judicial principles on board ships. Often this is limited to labour law, safety regulation or other technical standards. The essence of judicial principles, however, shapes the relationship between state organs and citizen – and its enforcement by police forces. No prominent flag state pays due regard to the implementation of law enforcement jurisdiction on board their ships. It seems they rely on ISPS Code and other security provisions, although those touch upon very different aspects of maritime security and justice at sea. Another article on this website portrays this misconception of law enforcement competences.

However, until state legislators take up the task, it is the private sector to tackle the judicial gap with best practice approach. The concern remains: does the private sector comprehend this assignment?

IS THE PRIVATE SECTOR BLUE-EYED?

For the private sector, however, this gap presents significant challenges. The master’s disciplinary authority is limited to the immediate safety and security of the ship, people and good and navigational safety. Such authority safeguards the immediate preservation of good order. Judicial principles in contrast restore law and order and require a public mandate. Without adequate legislation, a master does not bear a public mandate. He is a not so ordinary citizen with exposed responsibility under a private contract.

The consequences are vast. On land, every single victim of a criminal offence and every suspect of a crime enjoys the respect under the rule of law. At sea, the reality neglects legal standards. Preservation of evidence, interrogation of witnesses, detention of suspects and documentation of investigation is a lucky straw.

All persons involved in a crime on board are subject to the master’s discretion. In most cases, his ship security officer will deal with the matter. Neither of them is legally qualified or has a public mandate. The problem extends beyond criminal law. It affects even civil claims related to bodily harm, damage to property or theft.

Téthys Naval is appalled by the naivety of the private sector in its response to mass brawls, property crimes and physical aggression: Albeit the pivotal role of the private sector, their current procedures does not provide access to legal counsel and to obtain legal compensation for damages. Indeed, the arbitrary reliance on inadequate procedures blocks access to justice. Access to justice and other judicial human right are enshrined in article 7 and 9 of the Universal Declaration of Human Rights from 1949. Various other human rights conventions repeat this legal standard.

JUSTICE THROUGH COLLABORATION

It is easy to point the finger at a problem. The art of consulting, however, is to work out a smooth solution and to relieve the maritime private sector of the burden of irresponsible handling. It is not advisable to wait for a legislative change. The private sector cannot design a public mandate for the master.

The maritime reality, however, demands to alter course. There is only one available national data base about criminal offences under the US CVSSA. The number of incidents during three months speak for themselves: 6 reported bodily injuries, 20 sexual assaults, 18 sexual rapes, 2 thefts larger than USD 10,000 in damage. The European or Indo-Pacific market share, the global merchant fleet and the fishery sector are not represented in these figures.

A recent article published in 2024 in the Cambridge International Law Journal describes the dilemma well. However, we do have the tools at hand that are necessary to strike a balance. With Prudence, Documentation and Collaboration the private sector can balance the duty to protect the people on board and the duty of loyalty to fundamental judicial principles. Yet it starts with an acknowledgement that the current practice disregards the pivotal role of the private sector. This on-board practice stands for a response procedure that is neither appropriate, adequate nor proportionate.

THE BLUESECURITY VISION

One approach to the Ocean Governance and Justice challenge is the BlueSecurity Vision. This approach ensures that governance gaps and security needs are addressed in light of the pivotal role of the private sector. Sustainable practices yield benefits, and transparency and accountability are distributed fairly between public and private sectors.

Under BlueSecurity, the solution for the private sector is two-part and basically quite simple – and without a doubt cost-effective.

In a first step, experts identify problematic chapters in the on-board procedures and define appropriate, adequate and proportionate processes reflecting the circumstances on board. It is important that the ship’s infrastructure take the lead for the correct procedure: Hence a consultancy is unfortunately always an individual assessment for that ship. General recommendations, like the recent publication of the International Chamber for Shipping, can only provide corner stone considerations for immediate advice.

“Call your legal department” is certainly neither practical nor sufficient if you are in the Master’s shoes.

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