26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 27

International legal framework for environmental maritime

crime: UNCLOS, IMO and MARPOL 

Dr. Alla PozdnakovaScandinavian Institute of Maritime Law, University of

Oslo

Environmental maritime crime – is there a uniform international approach?

Criminalize or not? What kind of conduct?What conduct is serious enough?Standard of faultWho can be criminally punishable?Types and levels of penaltiesWhat State is entitled to criminalize and

prosecute?

UNCLOS and MARPOL

Shipping sector is not immune to criminal prosecutions for pollution violationsExxon Valdez, Erika, Prestige, MV Full City (2010,

Norway)

Problems pertaining to effective prosecutionDetection of unlawful dischargesProsecuting the right individuals/organizationsDefinition of a pollution crime Jurisdiction to enact and enforce criminal sanctions

– international law implications

The problem: shipping is international but criminal law is domestic

Criminalization of conduct and enforcement can encroach upon other State’s sovereignty

Central «actors» International organizations – adopt international

standardsUnited Nations International Maritime Organization (IMO) European Union

States – enact national legislation and enforce sanctionsNullum poena sine legeEnforcement and imposition of penalties – only at

national level

Relevant national (public) «actors» Legislator (Parliament/government)

Monistic/dualistic legal systems

Public authorities such as police/prosecutor/investigator

National courtsEnsure that national rules are applied in compliance

with international law

International regulatory framework

United Nations Convention on the Law of the Sea (Montego Bay, 1982, in force as of 1994), UNCLOS

Part XII UNCLOS “Protection and preservation of the marine environment”

codifies customary international law of the seadevelops new rules (especially with respect to protection of the marine environment!)

UNCLOS Part XIIrequires States to prevent and reduce pollution of seas, including from shipsdetermines the scope of State jurisdiction over perpetrators of ship-source pollutionContains a number of provisions indicating that sanctions of certain scope are to be introduced and applied

UNCLOS refers consistently to

“international rules and standards” for the prevention, reduction and control of marine pollution and violation of “applicable international rules and standards”

What are these “international rules and standards”? International standards (e.g.MARPOL)National standards conforming and giving effect to

international standardsNational standards exceeding international standards?

International Maritime Organization (IMO) – “competent international organization”

MARPOL 73/78 – International Convention for the prevention of pollution from ships

International Safety Management Code (ISM Code/SOLAS, Chapter IX, "Management for the Safe Operation of Ships")

Differences in functions of MARPOL and UNCLOS

MARPOL lays down international rules and standards for the prevention of pollution from ships

UNCLOS sets forth international rules of jurisdiction applicable to ship-source pollution

Do UNCLOS and/or MARPOL introduce a criminal law regime?The treaties require adequate sanctions to be

enacted by flag States but do not require that s

Some provisions are directly relevant for defining the environmental maritime crime and determining limits of jurisdiction over perpetrators of such crimes

MARPOL - structure Convention 1973

Protocol 1978

Protocol 1997 (Annex VI)

Annex I Oil pollution

Annex II Liquid noxious substances

Annex III Harmful Substances Carried by Sea in Packaged Form

Annex IV Sewage

Annex V Garbage

Annex VI Air pollution from ships

MARPOL Objective

to eliminate intentional pollution and to reduce/minimize accidental pollution from ships

Scope (Annex I)all discharges (by substances regulated in

Annexes) are prohibited except where certain conditions are met:Regulation 9: standards and levels of permitted

discharges«zero pollution» except in «special areas» (Reg. 10)some ships are excluded (governmental/naval)

Does MARPOL set up a criminal law regime?

2 relevant provisions Article 4

Regulation 11 of Annex I (and corresponding, albeit not identical rules in other Annexes)

Article 4 MARPOL «Violation»Any violation of the requirements of [MARPOL]

shall be prohibited and sanctions shall be established therefor under the law of the Administration of the ship concerned [i.e. flag State] wherever the violation occurs

Penalties shall be adequate in severity to discourage violations of [MARPOL]

MARPOL - exemptionProhibited pollution can be «excused» in three

cases (Reg. 11 of Annex I):1. discharges necessary for securing the safety of the ship or the saving of life at sea

2. discharges (approved by the flag state) for the purposes of combating specific pollution incidents

MARPOL – exemption (cont’d)

3. Discharges resulting from damage to the ship or its equipment

provided all reasonable precautions have been taken after the occurence of the damage or discovery of the discharge for the purposes of preventing/minimizing the discharge

except if the owner or the master acted either with intent to cause damage or recklessly and with knowledge that damage would probably result

The problem: verbatim application is not feasible

Sanctions can also be imposed not for the discharge as such but for the related violationsFalsification of oil record books (USA practice)

Omission to notify the emergency/to report pollution incident («Full City» in Norway)

Failure to ensure proper safety management system on-board (violation of ISM rules)

Harmonization of criminal law provisions and uniform application – are there any impediments to this?Political and economic interests

Flag States v coastal States

Pragmatic considerations – costs of active enforcement

Legal issues – is the State entitled to criminalize and enforce sanctions?