Diapositiva 1
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Transcript Diapositiva 1
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 27
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 onboard (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?