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

1. International legal framework for environmental maritime crime: UNCLOS, IMO and MARPOLDr. Alla PozdnakovaScandinavian Institute of Maritime Law, University of Oslo 26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 24

2. International rules of criminal jurisdiction over perpetrators of ship-source pollution • How to ascertain what these rules are? • No international (global) treaty on criminal jurisdiction • 1952 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 States • Coastal States • Port States

3. UNCLOS does not resolve all questions pertaining to the exercise of criminal jurisdiction • International law generally - ? • State practice (not extensive and not easily available)

4. 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

5. Selected UNCLOS provisions • Article 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

6. 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 present • E.g., Draft convention on Jurisdiction with respect to crime

7. 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?)

8. 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 positive • State of nationality • With regard to pollution which produced effects within legislating State’s territory (objective territorial principle/effects doctrine) • Article 218 UNCLOS

9. Enforcement jurisdiction • More 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

10. 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 waters • Territorial sea • EEZ

11. Jurisdiction to prosecute and impose penalties • UNCLOS 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

12. Coastal State jurisdiction • Internal waters and ports – full jurisdiction • Territoriality principle of jurisdiction • «French principle» or US/UK (internal affairs) approach • Territorial sea – full jurisdiction • NB the coastal state must not hinder the innocent passage • There must be «clear grounds» for believing that a violation has taken place

13. Coastal State jurisdiction (cont’d) • EEZ – inspection and detentiononly in specialcircumstances (post factumdependingontheseverityofdamage) • It is onlypossible to requestinformationabouttheship (Article 220(3) • substantialpollution – physicalinspection (Article 220(5) • Detentionif major damage to the marine environmentofthecoastal State (Article 220(6))

14. Coastal State jurisdiction (cont’d) • High seas • Non-flag States have no right to interdict polluter except in cases of hot pursuit • Intervention in case of a maritime casualty and Article 221

15. Article 220 • 5. 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.

16. 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.

17. Consequences of detention of a foreign vessel and crew • Must be released promptly upon posting a reasonable bond • Article 226 • Prompt release procedure in ITLOS

18. Article 230 • 1. 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.

19. 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.

20. 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

21. 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 waters • False statement (fairy – tale book) • Alambra (Sweden, 2004) • Punishment can be imposed even if the delinquent vessel was not detained on spot

22. Allocation of jurisdiction between coastal States • How to allocatecriminaljurisdictionbetweentwo or more coastal States affected by the same pollutionviolation? • UNCLOS does not addresssuchsituations in anydetail • The State whichdetainedtheship first? The State withthestrongest link to theincident/greatestinterestshould be allowed to prosecute • The Eurojust decision in thePrestige case (2003) – convenienceoflitigation

23. 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 limits • Or a port State may institute proceedings under Article 218

24. Article 218 • 1. 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.

25. Port State enforcement (cont’d) • Delinquent foreign vessel must be voluntarily in the port of the port State • Unlawful seizure - ex injuria ius non oritur or male captus bene detentus?

26. 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!

27. 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)

28. Article 228 • Can a coastal State refuse to transfer/suspend proceedings? • Pollution committed within territorial sea • Pollution committed beyond territorial sea if • Case of major damage to the coastal State • The State has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels

29. Final remarks • Need 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 assertively • To achieve this, more clarification of international law is necessary • More research on State practice is required!

30. Thank you! Alla.pozdnakova@jus.uio.no