26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 24

International legal framework for environmental maritime

crime: UNCLOS, IMO and MARPOL 

Dr. Alla PozdnakovaScandinavian Institute of Maritime Law, University of

Oslo

International rules of criminal jurisdiction over perpetrators of ship-

source pollution

How to ascertain what these rules are?No international (global) treaty on criminal

jurisdiction1952 Brussels Convention on Penal Jurisdiction in

matters of collision and other incidents of navigation

UNCLOS Part XII «Protection and preservation of the marine environment»Flag StatesCoastal StatesPort States

UNCLOS does not resolve all questions pertaining to the exercise of criminal jurisdiction

International law generally - ?

State practice (not extensive and not easily available)

Flag States – principal jurisdiction

Coastal and port States – concurrent jurisdiction + limitations on:the substantive contents of the national rules The geographical reach of national criminal law

Territorial versus extra-territorial jurisdiction

Prescriptive jurisdiction and enforcement jurisdiction

Selected UNCLOS provisionsArticle 211 UNCLOS «Pollution from vessels»

Article 217 Enforcement by flag States

Article 218 Enforcement by port States

Article 220 Enforcement by coastal States

Article 228 Suspension and restrictions on institution of proceedings

Article 230 Monetary penalties and recognized rights of accused

Prescriptive jurisdiction Legality principle – essential to have a proper

national provision!

Territorial jurisdiction versus extraterritorial jurisdiction: can a State extend its criminal legislation to conduct beyond its borders? Yes but Lotus judgment (1935, P.C.I.J.) is not

popular Generally, some interests must be affected or certain

connections presentE.g., Draft convention on Jurisdiction with respect

to crime

Exlusive economic zone (EEZ) – right of the coastal State to protect the marine environment

UNCLOS permits coastal State to legislate within its EEZ but only to the extent of «international rules and standards» (Article 211 «Pollution from vessels»)

Erika case (can France apply national rules (allegedly) exceeding international treaty for accident beyond its territorial sea?)

Can a non-flag State enact criminal sanctions applicable to conduct committed beyond its territorial sea/EEZ – i.e. on the high seas and other States’ waters?The answer is positiveState of nationalityWith regard to pollution which produced effects

within legislating State’s territory (objective territorial principle/effects doctrine)

Article 218 UNCLOS

Enforcement jurisdictionMore limited than prescriptive jurisdiction

In principle, only territorial enforcement + coastal State enforcement in EEZ

Two aspects of enforcement:

Jurisdiction to stop, inspect and detain a foreign ship

Jurisdiction to prosecute and impose criminal punishment

Jurisdiction to stop, inspect and detain:Location of the vessel and location of the pollution

violation (proximity/distance to the shore)

UNCLOS is very specific on this aspect: see Article 220 (coastal State jurisdiction) Internal watersTerritorial seaEEZ

Jurisdiction to prosecute and impose penaltiesUNCLOS is not as specific

Article 230 UNCLOS (only monetary penalties unless «wilful and serious pollution in the territorial sea»)

Article 228 take over of proceedings by flag State

Coastal State jurisdiction

Internal waters and ports – full jurisdictionTerritoriality principle of jurisdiction«French principle» or US/UK (internal affairs)

approach

Territorial sea – full jurisdiction NB the coastal state must not hinder the innocent

passageThere must be «clear grounds» for believing that a

violation has taken place

Coastal State jurisdiction (cont’d)EEZ – inspection and detention only in special

circumstances (post factum depending on the severity of damage)

It is only possible to request information about the ship (Article 220(3)

substantial pollution – physical inspection (Article 220(5)

Detention if major damage to the marine environment of the coastal State (Article 220(6))

Coastal State jurisdiction (cont’d)

High seasNon-flag States have no right to interdict polluter

except in cases of hot pursuitIntervention in case of a maritime casualty and

Article 221

Article 2205. Where there are clear grounds for believing that a

vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a substantial discharge causing or threatening significant pollution of the marine environment, that State may undertake physical inspection of the vessel for matters relating to the violation if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection.

6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.

Consequences of detention of a foreign vessel and crewMust be released promptly upon posting a

reasonable bondArticle 226

Prompt release procedure in ITLOS

Article 2301. Monetary penalties only may be imposed with

respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea.

2. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea.

3. In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognized rights of the accused shall be observed.

Examples of enforcement by coastal State

Full City (Norway, 2010)Negligent pollution (grounding) in the internal

waters

Ommision to notify the emergency

Imprisonment changed to probation for the master, long detention prior to trial

Arisan (1992, Norway) Imprisonment for accidental pollution in the

territorial sea (UNCLOS not yet in force)

Royal Caribbean Cruises (USA, 1998) Intentional pollution in other State’s watersFalse statement (fairy – tale book)

Alambra (Sweden, 2004) Punishment can be imposed even if the delinquent

vessel was not detained on spot

Allocation of jurisdiction between coastal States

How to allocate criminal jurisdiction between two or more coastal States affected by the same pollution violation?UNCLOS does not address such situations in any

detail

The State which detained the ship first? The State with the strongest link to the incident/greatest interest should be allowed to prosecute

The Eurojust decision in the Prestige case (2003) – convenience of litigation

Port State enforcement (Article 218)

What if the foreign vessel committed pollution on the high seas or within other States’ waters?

or sailed out of the coastal State’s maritime zones after having polluted there? The offender may later return within the coastal

State’s territorial limitsOr a port State may institute proceedings under

Article 218

Article 2181. When a vessel is voluntarily within a port or at

an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference.

Port State enforcement (cont’d)

Delinquent foreign vessel must be voluntarily in the port of the port StateUnlawful seizure - ex injuria ius non oritur or male

captus bene detentus?

Article 218 (cont’d)No effects on the port State (or connecting

factors) are required under Article 218

Decision by port State to inspect/institute proceedings is voluntary

Request by the coastal or flag State is required with regard to pollution in the coastal State’s waters

Important: port States could prosecute pollution violations on the high seas, where flag State is not taking measures – no enthusiasm in practice!

Suspension and restrictions on the institution of proceedings (Article 228)Article 218

Flag State may request transmittal of proceedings from the port State

The coastal State may request transmittal of proceedings if violation occured in its internal waters, territorial sea or EEZ

Article 228 Transfer of proceedings to the flag State Ne bis in idem Expiry of the right to institute proceedings against

a foreign vessel (three years)

Article 228Can a coastal State refuse to transfer/suspend

proceedings? Pollution committed within territorial seaPollution committed beyond territorial sea if

Case of major damage to the coastal StateThe State has repeatedly disregarded its obligation to

enforce effectively the applicable international rules and standards in respect of violations committed by its vessels

Final remarksNeed to harmonize and develop the definition of

a pollution crime and penalties

Need to ensure better protection to the master and the crew (UNCLOS does not achieve this)

States must use Articles 220 and 218 more assertivelyTo achieve this, more clarification of international

law is necessaryMore research on State practice is required!

Thank you!

Alla.pozdnakova@jus.uio.no