ONLINE CURRENTS VOL3 - Flipbook - Page 11
Yet, outside of the jurisdiction, Berkow and the US coast guard were unable to do anything
due to the Panamanian flagship. Interestingly, and problematically, this shapes as a
legislative paradox, as the MRAG observer program 6 itself actually prefers observers to not
share the same nationality or citizenship as the flag state of the vessel.
Which begs the question, whose or what interests are protected within maritime international
law? And what do they serve?
The concept of maritime international law - formally known as the United Nations Convention
on the Law of the Sea (UNCLOS) 7 - is fundamentally linked to the exploitive practices of
marine resources. Its underlying goal could be described as sustainable development of
human activity on the oceans. Miguel de Serpa Soares, United Nations Legal Counsel and
Under-Secretary-General for Legal Affairs, talks of how “UNCLOS embodies the three pillars of
sustainable development - social, economic and environmental - and sets forth the legal
framework for the sustainable development of the oceans and seas”. 8
On the surface, UNCLOS obligations are, broadly speaking, unanimously adhered to by the
signatory states. Conflict between these states rarely escalates, but when they do they are
adjudicated by the International Tribunal for the Law of the Sea (ITLOS). These disputes,
however, are generally centered around large-scale geopolitical concerns, such as the
ongoing Indian Ocean boundary dispute between Mauritius and Maldives 9 . Whereas, of the
29 confirmed disputes since ITLOS’s inception in 1992, ITLOS quarrels typically fall into three
types of distinctions: boundary disputes, military mobilizations, and vessel detainments. 10
Consequently, the vast majority of smaller-scale issues are simply left on the wind, and do
not receive limelight amongst state interests in the context of ITLOS. Of the 29 contentions, no
single issue relating to human resources aboard working vessels has been the crux of any
dispute brought to or adjudicated by ITLOS. Perhaps even more remarkably, only a handful
related to environmental practice.
As regards to human-centered vessel issues, such as the disappearance of Keith Davis, the
absence of litigation and resolution clashes directly with the UNCLOS legal framework which
clearly states that the responsibility to exercise due diligence on human rights issues,
remains fully centered on the national jurisdiction appertaining to the vessel’s flagged status.
In the real world, however, “flags of convenience” muddy the due process of robust
investigation, as these registrations generally have a limited link between registered vessels
and flag states. In fact, the absence of a genuine link serves the interests of vessels engaged
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