26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 27 International legal framework for environmental maritime crime: UNCLOS, IMO and MARPOL Dr. Alla Pozdnakova Scandinavian 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 fault Who can be criminally punishable? Types and levels of penalties What State is entitled to criminalize and prosecute? UNCLOS and MARPOL

Shipping sector is not immune to criminal prosecutions for pollution violations Exxon Valdez, Erika, Prestige, MV Full City (2010, Norway) Problems pertaining to effective prosecution Detection of unlawful discharges Prosecuting the right individuals/organizations Definition 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 standards United Nations International Maritime Organization (IMO) European Union States – enact national legislation and enforce sanctions Nullum poena sine lege Enforcement 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 courts Ensure 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 sea develops new rules (especially with respect to protection of the marine environment!)

UNCLOS Part XII requires States to prevent and reduce pollution of seas, including from ships determines the scope of State jurisdiction over perpetrators of ship-source pollution Contains 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 standards National 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 - exemption Prohibited 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 violations Falsification 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?