1. 26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 24
International legal framework for environmental maritime crime: UNCLOS, IMO and MARPOL  Dr. Alla Pozdnakova Scandinavian 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. International law generally - ?
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 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))

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. Royal Caribbean Cruises (USA, 1998)
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 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

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)
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!